Kulasegaran (right) said the problem was caused by Parliament and should be resolved by Parliament. — Picture by Choo Choy May
By Clara Chooi
IPOH, March 20 — Parliament will again be the stage of an inter-religious custody battle, when M. Kulasegaran raises the plight of M. Indira Gandhi, in a bid to force legislation banning conversions to Islam as a means to gain custody of children.
The Cabinet had decided last April that children remain in the religion of the parents at the time of marriage, should one of them decide to convert to Islam. It also decided that outstanding issues in a marriage must be settled before conversion to avoid children from becoming the victims.
But a subsequent decision by the Conference of the Malay Rulers to seek the view of state authorities had delayed the government’s plan to table amendments to three laws — the Islamic Family (Federal Territories) Law 1984, Administration of Islamic (Federal Territories) Law 1993, and Law Reform (Marriage and Divorce) Act 1976.
So far, the government has given no indication of when the laws will be amended.
Kulasegaran, who is Indira’s lawyer, told a press conference here today that the problem faced by Indira and her husband was not caused by either the Syariah or civil courts, but by Parliament, which had failed its duty as a law-making institution.
“Now we have two custody orders — one by the Syariah Court and one by the civil High Court. Both orders give custody to each parent. But which should prevail?” he said.
On March 11, Indira won a short-lived victory when the Ipoh High Court granted her custody of her toddler, but she will have to return to the courts soon, as her Muslim-convert husband refused to give up the child.
K. Pathmanathan, now known as Mohd Ridzuan Abdullah, had immediately filed a notice of appeal to the court and an application for a stay of execution of the High Court order for him to return 23-month-old Prasana Diksa to the mother.
The couple have two other daughters — Tevi Darsiny, 13, and Karan Dinish, 12 — who are living with their mother.
Last April, the Syariah court granted custody of the three children to the father.
Kulasegaran pointed out today that since Indira was a non-Muslim and had no standing in a Syariah court, the civil court’s decision should prevail.
“Since her husband can stand before a civil court, this means that he should be bound by its decisions. But this is arguable because in our country’s present system, there is no proper law to determine this. Parliament has failed in this,” he said.
Kulasegaran said that when the issue was raised in Parliament last year, Minister in the Prime Minister’s Department Datuk Seri Nazri Aziz had agreed to take the matter to the Cabinet for discussion.
“The Cabinet appointed that lame duck (Minister in the Prime Minister’s Department, Tan Sri) Dr Koh Tsu Koon to handle the issue,” said Kulasegaran.
Koh, he claimed, had subsequently come up with a temporary decision, which stated that in the cases of conversion, children have to remain in the religion of their parents’ civil marriage.
“In the meantime, the laws governing these issues would be looked into and studied for the purpose of making further amendments,” he said.
Since then, added Kulasegaran, nothing had been done.
“It has gone quiet and no one has raised the issue further. Nazri told me that the matter has now been placed in the hands of the Malay Rulers to decide,” he said.
Kulasegaran added that Koh’s decision was also not binding as there was no formal mechanism for it to be enforced.
“It is just a play of words and nothing more. What we need is concrete amendments of the law,” said Kulasegaran.
He pointed out that the very crux of the issue lay with former prime minister, Tun Dr Mahathir Mohamad’s move to amend Article 121 (1a) of the Federal Constitution, which now states that matters pertaining to Syariah matters cannot be heard in the civil court.
“It all boils down to that problem,” he said, adding that the country needed to quickly formalise new laws and make the necessary amendments to the existing laws in order to solve the deadlock as soon as possible.
“I am not saying this in order to protect the non-Muslims but this would also be good for the Muslims themselves. What we need is something concrete in which we can refer to so as to avoid future confusions and emotional stress for the people,” he said.
Indira has been embroiled in a bitter custody battle for her children since early last year, after her formerly Hindu husband converted her children to Islam without her knowledge.
Since then, her husband has also obtained a Syariah Court order which granted custody of all three children to him.
As a non-Muslim, however, Indira has chosen to wage her legal war in the civil courts, which she claims should be binding to her husband as the couple had exchanged marriage vows in a civil marriage to begin with.
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