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2022 MarsdenLR 1081
HIGH COURT MALAYA KUALA LUMPUR
LOH SIEW HONG – Appellant
Versus
NAZIRAH NANTHAKUMAR ABDULLAH & ANOR – Respondent
[Criminal Application No: WA-44-28-02-2022]
The unilateral conversion of minor children to another faith requires consent from both parents, and existing custody orders must be respected.
Headnote:(A) Courts of Judicature Act 1964 (Act 91) – Specific Relief Act 1950 (Act 137) – Application for Writ of Habeas Corpus for the release of children from custody. High Court orders granting sole custody of children to applicant were ignored by respondents. Court emphasized the importance of complying with custody orders. (Paras 41, 92, and 96)
(B)
Unilateral conversion of minor children to Islamic faith without consent of both parents is unlawful according to principle established in Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak. (Paras 73, 77, and 161)
(C)
The legality of continued separation of children from the applicant mother was determined unlawful. (Paras 73 and 96)
Facts of the case:
The applicant, Sulochana, was granted sole custody of her children by the Family Division of the Kuala Lumpur High Court. The 1st respondent, holding the children, was found to have ignored custody orders.
Findings of Court:
The application for Writ of Habeas Corpus was allowed, granting custody of the three children back to the applicant.
Issues
: Whether the respondents acknowledged the court orders regarding custody, legality of continued detention of the children by respondents.
Ratio Decidendi:
Court reaffirmed that custody orders must be complied with, and both parents' consent is necessary for conversion of children's religion.
Result:
Application granted; children to be returned to applicant.
(A) Introduction
[1] This is an application for a Writ of Habeas Corpus to issue an order that Sulochana a/p Nagahswaran, Sulochini, a/p Nagahswaran and Thatchina a/l Nagahswaran respectively be released from the personal custody of the 1st respondent and/or the 2nd respondent and be returned to the custody of the applicant.
[2] The 2nd respondent, the Jabatan Kebajikan Masyarakat Perlis, who I was made to understand, was not represented.
(B) Background
[3] The background facts that led to the filing of this application are best appreciated by outlining the respective narratives of the applicant and the 1st respondent.
Applicant's Narrative
[4] Sulochana a/p Nagahswaran, Sulochini a/p Nagahswaran and Thatchina a/l Nagahswaran are the biological children of the applicant. The applicant was married to Nagahswaran a/l Muniandy (Nagahswaran) who is the biological father of the said children.
[5] On 31 March 2021, the Family Division of the Kuala Lumpur High Court (KLHC) ordered that the sole custody, care and control of the said children be given to the applicant.
[6] According to the applicant, she came to know that her children were in the custody of the 1st respondent at the Hidayah Centre Foundation in Bayan Lepas, Penang.
[7] The applicant averred that the 1st respondent had prevented her from meeting and taking her children into her care and custody.
[8] On 11 February 2022, at around 4.00 pm, the applicant said she went to the Asrama Lelaki Tahfiz al-Hambra at No 1862 Lorong Seri Gelugor, 13100, Kepala Batas, Penang after having been informed that her children were there only to be told that her children were re-located elsewhere.
[9] As a result of this, the applicant on 12 February 2022 lodged a police report, Balai Polis Tasek Gelugor in Butterworth, Penang.
[10] Subsequent to this, the 1st respondent got in touch with the applicant and informed her that her children were now in Perlis.
[11] The applicant averred that her children in Perlis were placed under the custody and care of the 1st respondent and/or the 2nd respondent who at the material time of the hearing of this application, was the Jabatan Kebajikan Masyarakat Perlis.
The Narrative Of The 1st Respondent
[12] The 1st respondent annexed in her affidavit in reply, a chronology of events in respect of her meetings with the said children.
[13] The chronology also gives an account of Nagahswaran's journey to the Islamic faith which involved a fortuitous meeting between Nagahswaran and an old acquaintance of his by the name of Abdul Khadir at a hospital when Nagahswaran went to collect medication for his children due to Nagahswaran's involvement in a motorcycle accident with his children.
[14] According to the 1st respondent, it was at this meeting that Nagahswaran communicated his desire and interest in embracing the Islamic faith to Abdul Khadir.
[15] This meeting between the two men resulted in both of them along with the said children in tow going to the Pejabat Agama Islam Perlis on 7 July 2020 where Nagahswaran and the three children converted to the Islamic faith.
[16] The 1st respondent then stated that Abdul Khadir contacted her and requested for her help in providing motivation and an understanding of Islam to Nagahswaran and the three children.
[17] According to the 1st respondent, she advised Abdul Khadir to pay attention to the children's schooling needs and to assist Nagahswaran in registering for religious courses with a view to understanding the religion.
[18] The 1st respondent further stated that a person known as Brother Ben arranged for the schooling of the three children. She also stated that she had got the permission of Nagahswaran to send the children to school as well as arranged for their welfare.
[19] A perusal of the annexures to the affidavit of the 1st respondent, namely, "NNA-2(a)", "NNA-2(b)" and "NNA-2(c)", show that these are religious schools known as Sekolah Menengah Al-Islah, Sungai Petani, Kedah, Madrasah Al-Quran W
