By DR WAN AZHAR WAN AHMAD (The Star)
It has been announced that when non-Muslim parents convert to Islam, the religion of their kids will remain in the same religion in which the marriage was solemnised. Such a statement contradicts the Federal Constitution, religious positions and causes confusion.
THE long existing misunderstanding over the religious status of minors resurfaced when an ill-informed Cabinet minister announced that the religion of minors from non-Muslim parents, upon the conversion of any of the parents to Islam, remains in the religion under which the marriage was solemnised. Such a statement contradicts the Federal Constitution and some religious positions. It worsens the confusion among the people and draws criticisms from both Muslims and non-Muslims.
The following explanation taken from Prof Dr Abdul Karim Zaydan’s voluminous al-Mufassal fi Ahkam al-Mar’ah (vol. 9, pp. 442-53) attempts to clear the air by explaining the standpoint of Islam.
Zaydan quotes authorities from reliable jurists of the past and their works. They include al-Kasani’s Bada’i’ al-Sina’i’, al-Marghinani’s al-Hidayah, Shirazi’s al-Muhazzab, Ibn Qudamah al-Maqdisi’s al-Mughni, al-Sharbini’s Mughni al-Muhtaj, etc. These scholars may come from different schools of laws but as a whole, they represent the position of Islam.
In Islam, if a child was born from Muslim parents, jurists unanimously agreed that he or she is a Muslim. Similarly, if the child was born from a Muslim father and a kitabiyah (Jewish/Christian) mother, he or she is a Muslim. The principle applied by jurists here is ‘al-shaghir yatba’u khayr al-abawayni dinan’ (in terms of religion, the child follows the best religion of his parent). Since Islam is deemed the best religion, the child follows the religion of his or her Muslim parent, either father or mother.
Kasani explains that a child must follow whatever religion confessed by his parent. This is fundamental as one cannot but have a particular religion whereby one is judged for all actions. For a child, due to a lack of reason and intelligence, the choice of his or her religion is made or determined through parents.
What is the status of a child’s religion if both parents renounce Islam and become apostates? Jurists from all legal schools maintain that the child remains a Muslim. This is the opinion of Maqdisi as stated in his Mughni, Kasani in Bada’i’, Shirazi in Muhazzab and Sharbini in Mughni al-Muhtaj.
Could a minor commit apostasy in the first place? A leading Hanafi jurist Imam Abu Yusuf holds that puberty is a pre-requisite for the validity of apostasy. Therefore, a minor cannot apostate.
Scholars from the Hanbali school state that a child’s apostasy is valid provided he or she is mumayyiz and do have some basic understanding about Islam, i.e. knowing that there is no God but Allah and that He has no rival, and that Muhammad (s.a.w.) is His servant and Messenger. It means that if the child is not mumayyiz and does not understand Islam in the basic sense, his or her apostasy is invalid and ineffective.
Imam Ahmad bin Hanbal, the founder of the Hanbali school, was in favour of the invalidity of a minor’s apostasy based on a prophetic Hadith narrated by Ali bin Abi Talib r.a. and Aisyah r.a.
Reported by great traditionists like Bukhari and Ibn Majah, it states that “The pen (i.e. accountability) is lifted from three groups of people: an insane person till he becomes sane, a child till he reaches the age of puberty, and a sleeping person till he wakes up.” The Shafi’i jurists are of the opinion that apostasy by an underage child is meaningless. If it happens, it does not fall through, even though he or she is mumayyiz because such a child is yet to bear any religious responsibility (taklif) until and unless he reaches the age of maturity.
Therefore, we can safely conclude that all three schools of law are in agreement that apostasy by a minor is immaterial.
What is mumayyiz? It refers to a certain point of age when a child attains the ability to differentiate between good and evil, right and wrong. This may happen to any child below the age of puberty.
What is the age of puberty in Islam? Some scholars say that for boys, the age limit varies from seven to 15. The majority held that the most appropriate age is 15. The main indication for this is when they experience their first wet dream. For girls, jurists unanimously agreed that they reach puberty after experiencing their first menstruation.
For both boys and girls, they begin to carry religious responsibilities, i.e. become personally accountable (mukallaf) for all their actions after reaching this age of majurity.
Let’s examine the religious status of children from non-Muslim parents. The earlier basic principle that children follow the religion of parents applies here. If a child is born from a non-Muslim parent, he or she is not a Muslim. Similarly, if a child is born from apostate parents, he or she is considered an unbeliever.
The religious status of children appears most problematic when parent converts to Islam, especially if only one party does so. Generally speaking, if both father and mother embrace Islam, their children become Muslim as well.
If only one parent embrace Islam, their underage child becomes Muslim too. Between the two parents, the position of the one who embraces Islam is ‘stronger’ compared to the non-converting spouse. Therefore, a child follows the religion of the ‘stronger’ party.
The above position, however, is not to be understood in isolation of other considerations. In resolving marital disputes following a divorce on whatever grounds, paramount consideration must be given to the best interest and welfare of the children. This has been acknowledged by both syariah and civil laws.
Under certain circumstances, the best interest and welfare of the kids concerned does not relate to religious status, but rather to their early care and upbringing that does not necessarily involve religious education.
In Malaysia, the application of Islamic law is largely based on the school of Shafi’i. As regard to the conversion of minors when any of the parents embraces Islam, the general public is made to believe that those underage kids simply and automatically follow suit.
Interestingly, Zaydan’s Mufassal shows otherwise. The Shafi’i jurists, like Sharbini, hold a different opinion altogether. To them, the conversion of a minor is invalid. Their ground is the Prophet’s hadith narrated from Ali bin Abi Talib r.a. and Aisyah r.a. quoted earlier.
The hadith means that anyone who falls under any of the three categories is not to be held responsible or accountable for one’s action unless one is in complete control of reasoning, i.e. doing something consciously and willingly, knowingly of its purposes and consequences.
Since minority is one of those not accountable for any action, a minor’s conversion to Islam is irrelevant. In short, a minor is not obliged to shoulder any responsibility/accountability.
Therefore, any notion that Islam sanctions conversion of minors to the religion is questionable. I am more inclined to say that all the hue and cry on this issue is the result of ignorance, leading to the mistaken emphasis or over zealousness on something having no ground or footing in religion.
When a marriage breaks down due to conversion to Islam, the best solution must be sought from the religion under which the marriage was solemnised or the law under which the marriage was registered. All disputes pertaining to property, custody of minors and other ancillary rights must be resolved under that religious or legal system.
Any just and satisfactory solution at this level is extremely important as it will facilitate the parents concerned, either father or mother, to proceed with the choice of education or religious upbringing he/she wants for the minor accorded to them by the court.
All parties must come to their senses that they will not get all they pray for in the court of justice. If it so happens that custody of a certain child was given to any party, all must be content with such a decision unless the court itself has ignored or overlooked certain important aspects of the trial causing severe injustice to any party.
I acknowledge the fact that it is the collective responsibility of Muslims to pay serious attention to anything pertaining to their religion, especially if it threatens their dignity and interests. The same applies, I suppose, to followers of other religions.
But in protecting the sanctity of each religion, followers must not turn ridiculous as it will badly damage the image of their own religion. As a result, instead of bringing one person closer to a religion, they are actually distancing many others no matter how rigorous they explain the truth of the religion.
After all, if we really believe in the omnipotence or omniscience of God, none should worry as to where one would end up in the next life. A non-Muslim today may become Muslim tomorrow, and vice versa. Even if a corpse is cremated to ashes, the Almighty God knows where his place is.
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