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2022 MarsdenLR 3007
HIGH COURT MALAYA SHAH ALAM
DAHLIA DHAIMA ABDULLAH – Appellant
Versus
MAJLIS AGAMA ISLAM SELANGOR & ANOR – Respondent
[Originating Summons No: BA-24NCVC-627-05-2021]
The jurisdiction of civil courts includes cases where a person claims they were never a Muslim ab initio, contrasting with those claiming to have renounced Islam.
Headnote:(A) Federal Constitution – Article 11(1) – Originating Summons sought declaration of non-Islam status – Jurisdictional issues regarding the civil and Syariah Courts considered – Conversion to Islam at age five invalid under State laws – Admission of religious practices by plaintiff did not equate to professing Islam. (Para 12, 23, 60)
(B) Jurisdiction – Civil Courts possess jurisdiction in ab initio cases, as clarified by apex Court – Distinction made between 'no longer a Muslim' and 'never was a Muslim'. (Paras 16, 23)
Facts of the case: Plaintiff claims non-Islam status after being converted as a child without understanding or consent; plaintiff's mother converted to Islam, subsequently, the conversion of the plaintiff was disputed based on its legality under relevant State law.
Findings of Court: The court determined that the plaintiff's purported conversion was against State law due to her age and lack of consent; thus, the plaintiff was not a Muslim ab initio.
Issues: Jurisdiction of civil courts vs. Syariah courts regarding religious identity; validity of the plaintiff's conversion.
Ratio Decidendi: The court held the civil courts could determine the identity of individuals claiming they never were Muslims, distinguishing from those claiming they left the faith.
Result: Application allowed, counterclaim dismissed.
JUDGMENT
Introduction
[1] The plaintiff's Originating Summons sought for an order to declare that she "is not a person professing the religion of Islam." The plaintiff's Originating Summons was opposed by the 1st defendant, Majlis Agama Islam Selangor ("MAIS") being the chief administrative body of all matters relating to the religion of Islam in the State of Selangor and the 2nd defendant, the Selangor State Government.
[2] In essence, the plaintiff contended that her case was not a case of apostacy - leaving the faith of Islam religion. The plaintiff contended that in the first place she was never a Muslim. She had not professed or practised the religion of Islam since her purported conversion to Islam. The conversion took place when she was at a very young age, and the conversion was decided by her Muslim-convert mother.
The Salient Background Facts
[3] The plaintiff was born on 17 November 1986 to a non-Muslim married couple. Her late father was of Indian descent and professed the religion of Hinduism; whereas, her mother is of Chinese descent and was born to a Buddhist family. The plaintiff's parents' marriage was solemnised under the Law Reform (Marriage and Divorce) Act 1976.
[4] In or around 1991, the plaintiff's parents decided to end their relationship and go separate ways The plaintiff's mother took the plaintiff with her, and they decided to stay in Selayang Baru, Selangor. At that material time, the plaintiff was only around five years of age.
[5] Pending a divorce proceeding, the plaintiff's mother decided to embrace the Islamic faith as her choice of religion because she intended to marry a Muslim man after her divorce proceeding was completed.
[6] On 17 May 1991, the plaintiff's mother went to the Jabatan Agama Islam Selangor ("AIS") and took the Affirmation of Faith (or the Kalimah Syahadah). At the same time, the plaintiff was converted to become a Muslim at the age of around five. The mother took the name "Farah Hor Binti Abdullah" and the plaintiff took the name "Dahlia Dhaima Binti Abdullah" after the conversion. On the same day, the JAIS issued a Conversion Card to the plaintiff's mother. As for the plaintiff, the Conversion Card was issued two years later on 28 August 1993 after the plaintiff had turned seven.
[7] The plaintiff's mother averred that her divorce proceeding with the plaintiff's father was completed when a Decree absolute was granted by the Civil High Court on 18 December 1992. The Civil High Court also granted the plaintiff's mother the custody, care and control of the plaintiff. The plaintiff continued living with her mother after the plaintiff's parents' divorce. Eventually, the plaintiff's mother married one Zafri Bin Manap on 10 April 1993. The plaintiff lived with her mother and step-father.
[8] When she was around 17 years of age, the plaintiff moved out from her mother's house and boarded at the Kolej Tunku Abdul Rahman during her tertiary education. After her graduation in 2010, the plaintiff decided to stay with her aunt in Bangsar, Kuala Lumpur. Sometime in 2015, the plaintiff decided to stay by herself.
[9] The plaintiff's mother reveals in her affidavit (see Afidavit Sokong (2), affirmed on 10 May 2021, encl 3) that, first, she did not inform the plaintiff's father that she had decided to convert the plaintiff to become a Muslim. Secondly, that the plaintiff's father did not give his approval or consent for the plaintiff's conversion even until the day of his demise in a road accident on 22 March 1996. Thirdly, the plaintiff did not take the Affirmation of Faith during her conversion to Islam; and the plaintiff did not understand and know what was transpiring on that material day and time. Lastly, that the plaintiff had not professed and practised the faith of Islam since the time the plaintiff was living with her until the present time. The plaintiff's mother further averred that the plaintiff has been professing and practising the religion of Hinduism since the time she
