PENDAFTAR MUALLAF WILAYAH PERSEKUTUAN V LEE CHANG YONG & ORS AND ANOTHER APPEAL [2022] 1 MLJ 653

 

PENDAFTAR MUALLAF WILAYAH PERSEKUTUAN V LEE CHANG YONG & ORS AND ANOTHER APPEAL [2022] 1 MLJ 653

Court of Appeal (Putrajaya)

Conversion to Islam Without Consent of Non-Converting Parent

Facts

1.     The First Respondent and Teng Wai Yee (“Aleena”) were married under Law Reform (Marriage and Divorce) Act 1976 in the year of 2006 and were blessed with two (2) children.

2.    On 17 December 2015, they filed a joint petition for divorce at Shah Alam High Court and during the process of divorce, Aleena had converted to Islam.

3.    By consent of both parties, a decree nisi was granted by the High Court on 21 January 2016 which was made absolute in three (3) months.

4.    In spite of that, Aleena managed to have the two children converted to Islam without the consent of the First Respondent on 11 May 2016.  The Certificates of Conversion to Islam (“the COC”) were also issued on the same day by the Registrar of Muallaf, Wilayah Persekutuan (“the Appellant”).

5.    On the same day, the First Respondent file a divorce petition at the High Court and on 6 June 2016, an interim order was granted by the High Court to prevent Aleena from converting and/or trying to convert the children to Islam.

6.     Regarding the First Respondent’s divorce petition, the High Court granted an order for the First Respondent’s visitation rights to the children and that Aleena be given the sole custody of both the Children.

7.      However, during the appeal process, the Court of Appeal overturned the High Court’s ruling and ordered that the sole responsibility for the guardianship, custody, care, and control of both children be granted to the First Respondent which then lead the appeal to the Federal Court.

Issue Whether the consent of both parent, ie the First Respondent and Aleena is required before the COC in respect of their underaged children can be issued?
Ratios

1.    In deciding the issue, it is pertinent for the Federal Court to look into the High Court’s order to object the registration of the children as converts to Islam because it was premised on the fact that the issue before the Court had already been decided by the Federal Court in the prominent case of  Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 (“Indira Ghandi”) and Her Ladyship of High Court was bound by the said decision based on doctrine of stare decisis.

2.   Nonetheless, the Appellants argued that the decision in the Indira Gandhi’s case is not applicable to their situation there is a difference of facts whereby Section 96 of the Administration of the Religion of Islam (Perak) Enactment 2004 (“the Enactment”) requires the Children to be present before the registrar and utter the two clauses of the affirmation of faith before the COC can be issued.  These requirements, however were not met in Indira Ghandi .

3.    On the other hand, all the conditions as provided in the relevant provision such as Section 85 of the Administration of Islamic Law (Federal Territories) Act 1993 (“Act 505”) are fulfilled in the present case.   Section 85 of Act 505 provides-

“Requirements for Conversions

  1. The following requirements shall be complied with for a valid conversion of a person to Islam-

a) the person must utter in reasonably intelligible Arabic the two clauses of Affirmation of Faith.

b) at the time of uttering the two clauses of the affirmation of faith the person must be         aware that they mean ‘ I bear witness that there is no God but Allah and I          bear witness that the Prophet Muhammad S.A.W is the Messenger of Allah’      ; and

c) the utterance must be made of the person’s own free will.”

[Emphasis Added]

4.    The Appellants also contended that the ruling of the Federal Court in the case of Subashini a/p Rajasingam v Saravanan a/l Thangathoray [2008] 2 MLJ 147 (“Subashini”) should be followed.  They further argued that the decision in Indira Gandhi’s is flawed and not binding on the High Court and the current Court because it was made without proper consideration of the relevant facts and laws (per incuriam).

5.    Pursuant to that, the present Federal Court referred to the Subashini’s case where the Apex Court in the mentioned case ruled that either the husband or wife has the authority to convert a child from marriage to Islam.  This interpretation is based on the understanding that the term “parent” in Article 12(4) of the Federal Constitution, provides that the religion of a person below 18 years old should be determined by their parent or guardian and it means a single parents.

6.    However, the distinguished case of Teoh Eng Huat v Kadhi Pasir Mas & Anor [1990] 2 MLJ 200 has been referred by the Federal Court whereby it was held that the rule of construction that the singular includes the plural ‘parent’ in Clause (4) of the aforementioned article must be rad in the plural to mean both parents.

7.    Having correctly referred to the relevant laws and authorities,  the Federal Court finally held that the consent of both the parents are required before a certificate of conversion to Islam can be issued in respect of the  children based on the purposive interpretation of Article 12(4) of Federal Constitution.

 

Decision

  1. The consent of both parents, ie the First Respondent and Aleena are required before the COC in respect of their underaged children can be issued.
  2. The appeal was dismissed with no order as to costs.
Key Take Away

1.   Clearly, the Federal Court has unequivocally ruled that in situations where children are born from a civil marriage or to a non-Muslim couple, both the mother and father (if alive) must give their consent before a certificate of conversion to Islam can be issued for the children. This means that the consent of both parents is required for such conversion.

 

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