Case Study on the Religious Conversion of Minors: Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors
- The legal and religious dispute
- How did the Federal Court decide Indira Gandhi a/p Mutho?
- The aftermath and respecting the child’s wishes
What happens when a child is converted into Islam by one parent without the other parent’s consent? Indira Gandhi a/p Mutho faced this predicament.
The legal and religious dispute
Indira and Pathmanathan a/l Krishnan contracted a civil marriage registered under the Law Reform (Marriage and Divorce) Act 1976 (LRA) on 10 April 1993. They were Hindus and had three children. On 11 March 2009, Pathmanathan converted to become a Muslim. He took on a new name: Muhammad Riduan Abdullah. Indira remained a Hindu. Unbeknown to her, Pathmanathan converted the children into Islam. Indira discovered the conversions sometime in April 2009. The Perak Islamic Religious Affairs Department (also known as “Jabatan Agama Islam Perak” or JAIPk) and the Registrar of Muallafs (RoM) registered the children as Muslims and issued their certificates of conversion on 2 April 2009. At the material time, the eldest child was 12 years old.
As a Muslim, Pathmanathan was able to move the Syariah court on an ex parte basis for interim custody of the children. Indira was unable to contest the application as the Syariah court had jurisdiction over Muslims only. It cannot make any orders regarding non-Muslims, and thus Indira was precluded from being heard. The court did not have the power to expand its jurisdiction to hear her. She had no standing before the court. In September 2009, the Syariah court gave permanent custody of the children to Pathmanathan.
Indira filed a suit to quash the children’s conversion certificates because they were issued in contravention of the law. The civil High Court nullified the conversions. Reading articles 8, 12(3) and 12(4) of the Federal Constitution together, the judge held that both father and mother had to consent to the conversion. However, the Court of Appeal disagreed and reversed the decision on the basis that the High Court could not question the religious authorities’ actions. The certificates of conversion were conclusive proof that the conversions were legal and valid. In any event, the civil High Court had no power to decide on the status of Muslims (in this case, the children). Only the Syariah High Court could.
How did the Federal Court decide Indira Gandhi a/p Mutho?
Indira appealed the Court of Appeal’s decision. The apex court affirmed the High Court’s decision that both parents – father and mother – must consent to the conversion. A purposive reading of articles 12(3) and 12(4) of the Constitution, with the Guardianship of Infants Act 1961 (GIA), that promotes the child’s welfare requires both parents to consent. Both of them have equal rights concerning the custody and upbringing of the child. A unilateral conversion is a “very wrong thing”. Also, Pathmanathan’s conversion did not alter his civil obligations under his LRA marriage:
 It is clear that in a situation where one party to a civil marriage has converted to Islam, the ex-spouse (ie the converting spouse) remains bound by their legal obligation under the LRA and the application thereof is not excluded by virtue of s 3(3). The same principle can be applied in respect of the operation of the GIA in the present appeals. The children in question are children of the Hindu marriage between the appellant and her husband.
Where a child’s religion or religious upbringing is in issue, the paramount consideration is to safeguard the child’s welfare. A religious conversion cannot be made based on a single parent’s belief as it leads to practical complications in the event of a conflict. On conversion by one parent, the child’s religion can be changed by the other parent the next day, and so forth.
Further, the Federal Court opined that for a valid conversion into Islam, the child must comply with section 96(1) of the Administration of the Religion of Islam (Perak) Enactment 2004. The provision requires the child, out of his or her own free will, to “utter in reasonably intelligible Arabic the two clauses of the Affirmation of Faith” understanding that they mean “‘I bear witness that there is no god but Allah and I bear witness that the Prophet Muhammad SAW is the Messenger of Allah’”. It was undisputed that Indira’s children did not utter the said clauses. They were even not present before the RoM. Section 96(1) was therefore not fulfilled:
 … The issuance of the certificates despite the non-fulfilment of the mandatory statutory requirement is an act which the registrar had no power to do under the Enactment. In so doing, the registrar had misconstrued the limits of his power and acted beyond its scope.
Because the appeal concerned the legality of the religious authorities’ actions, the civil courts had the jurisdiction to review them. Indira’s matter did not involve “the interpretation of any Islamic personal law or principles”. Contrary to the Court of Appeal’s decision, the Syariah courts did not have exclusive jurisdiction. JAIPk and the RoM violated the law because section 96(1) was not followed, and only one parent consented. Hence, the conversions were null and void.
The aftermath and respecting the child’s wishes
The Federal Court’s decision in January 2018 ended nine years of acrimonious litigation that caught public attention and engendered much controversy. Several Muslim groups voiced their views in defence of Pathmanathan’s actions. The contentious nature of the case motivated the then Court of Appeal President, a Muslim, to explain that in making his decision, he was “not swayed” by his religious conviction and sentiments over the issue.
Three observations are apposite at this juncture. First, while Indira was finally awarded custody of the children after she divorced Pathmanathan, he has since refused to deliver the youngest child to her to date. He has been found guilty of contempt of court but still refuses to comply with the civil court’s custody order. His whereabouts are unknown. The situation highlights the ineffectiveness of the judicial process and its limitations. Second, Pathmanathan used his religious status to steal a march on Indira. She could not appear in the Syariah courts. He abused his Muslim credentials to obtain an order for custody and to convert the children into Islam. The latter move was to take the children out of the civil courts’ jurisdiction. Third, as the case was decided from an administrative law standpoint, the landmark Federal Court ruling did not have to consider the children’s wishes in their choice of religion and how they should, as far as possible, be operationalised in practice. Children have a right to freedom of thought, conscience and religion under article 14(1) of the Convention on the Rights of the Child (CRC). For the right to be effective, children should, subject to their evolving capacities, be consulted for their views to be heard. Here, Malaysian law only gives the parents the choice to decide, not the child. Arguably, article 14(2) of the CRC allows parents to “provide direction to the child in the exercise of his or her right” but goes no further. Religious direction is sanctioned, not religious appropriation or adoption. Where it is virtually impossible to leave Islam in Malaysia, a child’s best interests dictate that no parent should decide for the child on a conversion into Islam. The status quo ought to be maintained for the child to freely decide on turning 18.
* The law stated is as of 4 July 2021