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2021 MarsdenLR 4239
COURT OF APPEAL PUTRAJAYA
PENDAFTAR MUALLAF WILAYAH PERSEKUTUAN – Appellant
Versus
LCY & ORS AND ANOTHER APPEAL – Respondent
[Civil Appeal Nos: W-01(A)-658-11-2018 & W-01(A)-659-11-2018]
The court reaffirmed that both parents' consent is required for the conversion of minor children to Islam, as established by precedent in Indira Gandhi Mutho.
Headnote:(A) Federal Constitution – Articles 12(4) and 8 – Administration of Islamic Law (Federal Territories) Act 1993 – Section 85 – Conversion of minors to Islam – Court quashed children's conversion to Islam due to lack of parental consent required as established in Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak, 2018, binding the court by the doctrine of stare decisis. (Paras 13, 20, 35)
(B) Judicial Review – The necessity to comply with statutory requirements for conversion emphasized, distinguishing previous decisions based on factual compliance. (Paras 14, 30)
Facts of the case: The mother unilaterally converted the children without the father’s consent after a divorce petition and during interim orders restricting such action. The issue was whether both parents' consent is necessary for conversion.
Findings of Court: High Court correctly quashed the conversion certificates as they were issued without the father's consent, reaffirming the ruling in the Indira Gandhi case interpreting rights under Articles 12(4) and 8.
Issues: Whether consent from both parents is mandatory for the certificate of conversion to Islam for minor children.
Ratio Decidendi: Court adhered to the binding precedent set by the Federal Court, requiring both parents to consent prior to the conversion of their children to Islam.
Result: Appeals dismissed with no order as to costs.
[1] This is an appeal against the decision of the High Court dated 16 October 2018 allowing partly the prayer sought by the 1st respondent in his application for judicial review. The prayers sought are as follows:
(i) an Order of Certiorari pursuant to O 53, r 8(2) of the Rules of 2012 to quash the conversion of religion of AB(1) and AB(2), the children of the 1st respondent and Aleena binti Abdullah and the decision by the appellant in Appeal No: WA-01(A)-658-11-2018 in issuing the Certificate of Conversion to Islam ('Kad Akuan Agama Islam') both dated 11 May 2016;
(ii) an Order of Prohibition pursuant to O 53, r 1 of the Rules of 2012 to prohibit the appellant, its officer or agent from registering the children as Muallaf (Muslim) under the relevant enactments;
(iii) an Order of Mandamus to compel the appellant and the 2nd respondent in Appeal No: WA-01(A)-659-11-2018 to cancel the registration of the children as converts to Islam in the Register of Converts;
(iv) alternatively, a Declaration that the Certificates of Conversion to Islam are null and void.
[2] The High Court Judge only allowed prayer (i) and (iii) of the 1st respondent's application with no order as to costs.
[3] There are two appeals filed against this decision by the appellants namely in Appeal No: W-01(A)-658-11-2018 and No: W-01(A)-659-11-2018.
Background Facts
[4] On 23 June 2006, the 1st respondent and Teng Wai Yee (Aleena binti Abdullah) ("Aleena"), were married under the Law Reform (Marriage and Divorce) Act 1976. Out of the marriage, they have two children, AB(1) and AB(2). At the material time, AB(1) was 8 years 1 month old, whilst AB(2) was 3 years and 7 months old and as the children are underaged, we will not disclose their real name. Thereafter, on 17 December 2015, a joint petition for divorce was filed at Shah Alam High Court. In the meanwhile, Aleena converted to Islam on 29 December 2015.
[5] On 21 January 2016, by consent of both parties, a decree nisi was granted by the High Court which was made absolute in three months. There was also an interim order granted by the Court on 29 March 2016, to restrain Aleena from converting or attempting to convert the children to Islam.
[6] Next, on 20 April 2016, the 1st respondent filed an application for variation of the decree nisi and on 10 May 2016 a consent order was recorded on the following terms:
(i) the Divorce Petition filed by parties be struck out;
(ii) the decree nisi be set aside;
(iii) the Interim Order dated 29 March 2016 be set aside.
[7] Subsequently, on 11 May 2016, Aleena procured the conversion of the two children to Islam without the consent of the 1st respondent. The Certificates of Conversion to Islam were issued on the same day by Pendaftar Muallaf Wilayah Persekutuan, the appellant in Appeal No: WA-01(A)-658-11-2018.
[8] On the same day, 11 May 2016, the 1st respondent filed a Divorce Petition at Shah Alam High Court and on 6 June 2016, by consent, an interim order was granted that except for the process of registration of the conversion of the children, Aleena is restrained from changing or attempting to change the children's religion to Islam.
[9] As regards the 1st respondent's Divorce Petition, on 27 April 2018, the Shah Alam High Court made the following orders:
(i) the 1st respondent's visitation rights to the children;
(ii) that Aleena be given the sole custody, care and control of both the children.
[10] However, on appeal, the Court of Appeal on 13 September 2018 set aside the order of the High Court and made an order that the 1st respondent is given the sole guardianship, custody, care and control of both the children.
[11] Finally, on 16 October 2018, the High Court allowed in part the prayer in the 1st respondent's judicial review application as alluded to earlier and hence the present appeal before us.
The Core Issue
[12] The core issue in the present appeal is essentially whether the consent of both parents ie, the 1st respondent and Aleena is required, befor
