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2022 MarsdenLR 2966
HIGH COURT MALAYA KUALA LUMPUR
LOH SIEW HONG – Appellant
Versus
NAGAHSWARAN MUNIANDY; MAJLIS AGAMA ISLAM DAN ADAT ISTIADAT MELAYU PERLIS (MAIPS) (P.... – Respondent
[Petition No: WA-33-734-12/2019]
Unilateral religious conversions of minors are illegal, affecting custody applications; any third-party intervention must show substantial interest.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 – Sections 3 and 96 – Family law – Custody of children – Application by a proposed intervener to vary the custody order granted in March 2021 – Court reaffirmed that it cannot entertain applications based on unilateral conversions of children from Hinduism to Islam, which are deemed illegal – Importance of the relationship between parent and child, preventing intrusions by third parties. (Paras 1, 7, 12, 17, 39)
(B)
The court stated that even if the children are Muslims, the application was dismissed due to the intervener's failure to show they were an interested person with a legitimate stake in the custody of the children. (Paras 39, 40)
Facts of the case:
Husband facilitated the covert conversion of children from Hinduism to Islam; custody granted to the wife under two previous orders; proposed intervener sought to vary the order.
Findings of Court:
Unilateral conversion is illegal and cannot be accepted to vary custody orders.
Issues
: Validity of the children's conversion; whether the proposed intervener has a legitimate interest in the custody of the children.
Ratio Decidendi:
The court reinforced that the wishes and rights of the parent are paramount, and third-party applications must demonstrate a significant interest.
Result:
Application dismissed, with costs.
JUDGMENT
Introduction
[1] This was an application ("the Application") by the Majlis Agama Islam Dan Adat Istiadat Melayu Perlis or MAIPs ("the Proposed Intervener") for leave to intervene to vary the Custody Order granted by this Court in March 2021 which involved three children ("the Children") of the Petitioner Wife and Respondent Husband.
The Factual Background
[2] The Petitioner and Respondent were married on 25 May 2008 under the Law Reform (Marriage and Divorce) Act 1976 ("the Law Reform Act"), and had three children ("the Children") from such union.
[3] The marriage had deteriorated and in July 2020, without the consent or knowledge of the Petitioner, the Respondent had facilitated the Children's conversion from Hinduism to Islam by the Proposed Intervener at the Pejabat Agama Islam Perlis. As a result of such conversion, a certificate of conversion into Islam was issued to the Children individually.
[4] However, pursuant to two Court Orders, an interim ex parte Order dated 20 December 2019, and another issued on 31 March 2021, sole custody, care and control of the Children was granted to the Petitioner.
[5] Despite these Orders, the Children eventually found themselves in the care of one Nazirah Nantha Kumari Abdullah at the Hidayah Centre Foundation in Bayan Lepas, Penang. The Petitioner claimed that Nazirah had prevented her from meeting and taking the Children into her care and custody. As a result thereof, the Petitioner filed a habeas corpus application.
[6] In February 2022, the High Court allowed the habeas corpus application, and the Children were reunited with the Petitioner. However, on 7 March 2022, this Application was filed, which was dismissed by this Court for the following reasons.
Contentions, Evaluation, And Findings
[7] At the outset, I am compelled to state that the decision of this Court is not based on which religion the Children should embrace, or remain in, or should renounce. It is not about choosing one religion over the other, and itis definitely not about which religion should prevail. At the expense of saying this ad nauseam, the decision of this Court must be, and is, about the exercise of the rights of the Children, and as such, the gist of this Application was whether the Proposed Intervener has the right to be involved in the Children's lives by intervening to vary the Custody Order granted by this Court in March 2021.
Whether The Proposed Intervener Is A Muslim
[8] The Petitioner resisted this Application on the premise that the Proposed Intervener was not a 'person' within the definition of the Law Reform Act; and even if it was, it was a Muslim entity and, therefore, precluded from making this Application, by virtue of s 3 of the Law Reform Act, which reads:
Section 3 - Application
(3) This Act shall not apply to a Muslim or to any person who is married under Muslim law and no marriage of one of the parties which professes the religion of Islam shall be solemnised or registered under this Act; but nothing herein shall be construed to prevent a Court from having exclusive jurisdiction over the dissolution of a marriage and all matters incidental there to including granting a decree of divorce or other orders under Part VII and Part VIII on a petition for divorce under s 53 where one party converts to Islam after the filing of the petition or after the pronouncement of a decree, or a petition for divorce under either ss 51, 52 or 53 on the petition of either party or both parties to a marriage where one party has converted to Islam, and such decree and orders made shall, not with standing any other written law to the contrary, be valid against the party to the marriage who has so converted to Islam.
[Emphasis Added]
[9] I had to disagree with the Petitioner's contention for the reason that although the definition of 'person' is not found in the Law Reform Act, according to s 3 of the Interpretation Acts 1948 & 1967, a 'person' includes a body of persons, corporate or unincorpor
