JUDGMENT

Faiza Tamby Chik J:

[1] Saman PemulaNo: S8-24-1727-2003 in encl (1) is an application by the plaintiff non-muslim wife (hereinafter referred to as the wife) for a declaration that the conversions of her two children Saktiswaran, 3 1/2 and Theiviswaran 2 1/2 years old (hereinafter referred to as the minors) by the 1st defendant muslim husband (hereinafter referred to as the husband) is null and void on the following grounds:

(i) That the conversions were made without the knowledge and the consent of the wife, the natural mother of the minors;

(ii) That the wife, as the natural mother of the minors has the right to determine the religion of the minors under art 12(4) of the Federal Constitution;

(iii) That the wife, who obtained an interim order dated 17 April 2003 from this court has the equal right to determine the religion of the minors under s 5 of the Guardianship of Infant Act 1961 (hereinafter referred to as Act 351).

[2] The two minors were converted to Islam by the husband on 25 November 2002 (see the temporary statutory conversion to Islam certificates under registration Nos 683/202 and 684/2002 both dated 28 December 2002 respectively). The husband converted to Islam on 19 November 2002 and as a muallaf he is known as Muhammad Ridzwan bin Mogarajah. At the outset let me explain what is the meaning of the terms "custody and guardianship". An order for custody of a child in the Family court gives the custodian the right to have the daily care and control of the child and the right and responsibility to make decision about such daily care and control. A custody order ceases to have effect when a child turns 18 years of age or marries. Guardianship means that a parent has the responsibility for a child's long term welfare. This includes involvement in major decisions such as a child's health, education and religion. Unless a court orders otherwise both parents are joint guardians of a child. In the present case the wife has obtained the interim order and the two minors are living with her in Alor Star

[3] There are two preliminary objections raised by the husband. Firstly the saman pemula in encl (1) is defective and the intitulement is not described with sufficient particularity. The second preliminary objection is that this court being a Civil court does not have the jurisdiction to hear this application as it falls, so contended the Husband within the jurisdiction of the Syariah court. I will deal with the second preliminary objection first.

[4] The facts of the case were simple and straightforward. The wife and husband were married according to Hindu rites at the Dewi Sri Karumariaman Temple in Alor Star on 5 November 1998. The said marriage was registered under the Law Reform (Marriage and Divorce) Act 1976 (hereinafter referred to as Act 164). At that time they were Hindus. There are two children of the marriage, ie, the two minors. At the time of birth both these two minors were Hindus. On or about 19 November 2002 the Husband converted to Islam. On or about 25 November 2002 the husband converted the two minors to Islam. On 31 December 2002 the wife filed an originating summons seeking an order for custody, care and control of the two minors. On 17 April 2003, the court gave an interim order to the wife who due to her two children are living with her in Alor Star gave the husband access on Saturday from 1-2pm to Sunday 1-2 pm, and the husband is prohibited from taking the two children out of Alor Star and the husband is to pay RM250 a month to each of the child. On 7 January 2003 the husband filed an ex parte application in mahkamah Tinggi Syariah Selangor for hadanah (custody) of the two minors and obtained the said custody order on 8 May 2003. The two minors are now living with their mother in Alor Star with weekend visits granted to the father by the Civil court. And these two minors have been converted to Islam by the husband. Hence the application by the wife in this court seeking a declaration that the conve