We endorse and advocate for freedom of thought, conscience, belief and religion for every person. We are alarmed, however, when an individual's change of faith impinges on his or her spouse's rights, such as the right of access to justice and the right of decision-making with respect to their children.
According to recent press reports, R Subashini and T Saravanan were married on July 26, 2001 in accordance with civil laws and they now have two sons, aged 1 and 3. The husband, Saravanan - now Muhammad Shafi Saravanan Abdullah - embraced Islam in May this year. He has sought to dissolve his civil marriage at the Syariah Court, reportedly to obtain custody of their three-year-old son whom he claims also converted to Islam in May.
In August, Subashini was granted a temporary injunction that prevented her husband from pursuing legal proceedings in the Syariah Court with respect to their marriage and the conversion of their children. This past Monday, however, the injunction was set aside and an appeal is now being filed at the Court of Appeal.
The Women's Aid Organisation (WAO) believes that when one spouse of a marriage that was solemnised under civil law converts to Islam, all matters pertaining to it (including custody, maintenance and inheritance issues) must be settled under civil law and in the civil courts in order to avoid conflicts of jurisdiction.
This will ensure that Subashini's right of access to justice is preserved as the Syariah Court has no jurisdiction over her since she is not a Muslim. Only the civil courts have jurisdiction over both parties. We are aware of the plights of other individuals, such as Shamala Sathiaseelan, who have been denied legal redress because the civil courts declined to exercise jurisdiction.
We are also gravely concerned that Muhammad Shafi's conversion to Islam will have a negative and discriminatory impact upon Subashini's rights as a mother, as has happened to Shamala. While we support Muhammad Shafi's absolute right to profess and practise the faith of his choice, his rights as a father and his new religion should not take precedence over Subashini's rights as a mother and her religion.
We urge the judiciary to uphold Article 12(4)[1] of the Federal Constitution, which has been judicially interpreted to necessarily mean that both the father and mother shall jointly decide the religion of a child under 18 years of age.
We also call on the court to give meaning to Section 5 of the Guardianship of Infants Act 1961, which gives a mother equal guardianship rights over the children. Furthermore, the child custody provisions of the Law Reform (Marriage and Divorce) Act 1976 requires that the court, in its custody decisions, consider the "wishes of the parents of the child" ( emphasis added ).
Furthermore, we urge the court to take account of Malaysia's accession to the Convention on the Elimination of All Forms of Discrimination against Women (Cedaw), and the Convention on the Rights of the Child (CRC). Each of these treaties contains clear and unequivocal provisions that oblige state parties, such as Malaysia, to ensure the equality of both parents in raising their children.
We call on the judiciary to ensure that Subashini's access to justice is preserved. We further urge that she be treated on an equal basis as her husband in terms of the rights of parents to make decisions about their children's upbringing, and that her choice of religion is treated on an equal basis as her husband's.
The writer is programme officer of Women's Aid Organisation (WAO).
