KOTA KINABALU: Wanita UPKO feels a great injustice was done by the Federal Court, who tore apart a family when they awarded custody of one child each to the father, who is a Muslim convert, and to the mother, who remained a Hindu.
While welcoming the recent judgment by the five-man bench Federal Court, led by Tan Sri Raus Sharif that the civil courts had exclusive jurisdiction on issues pertaining to civil marriages, Wanita Upko chief, Datin Dr Jainah Sintian, expressed her reservations.
“As much as we applaud the decision of the Federal Court, the issue of unilateral conversion of a child by one parent is still subject for concern,” she said in a statement Thursday.
“Wanita Upko strongly believes the prolonged legal battle, at its core, is about the children, the unilaterally converted children.
“The judgment in this particular case is far from a just decision for the mother and children, as natural justice to a mother has been denied when the root cause of the problem which is about the right of the unconverted non-Muslim mother in determining the religion of her minor goes without a comment by the esteemed judges.”
Dr Jainah said the case arose because one party had converted and unilaterally converted their children from their civil marriage without the consent and knowledge of the other parent.
Even though the Federal Court had decided that the custody of the children to be decided by the Civil Courts, how would the civil courts consider who should have custody, if children of the marriage had been unilaterally converted by one parent?
“Surely religion of the children and the parents plays an important consideration for the civil courts to decide which parent should get custody,” she remarked.
She added: “Would a Christian parent be seen as a proper parent to raise and instill the teaching of the Islamic faith towards a Muslim child? Can a Muslim parent instill the teaching of the Christian faith towards a Christian child? Surely any Judge would find it difficult to ignore this fact.
“In Deepa’s case, not only the mother has been denied the right over her son but it appears now that the Hindu mother is vulnerable to state religious authority persecution for having a Muslim child under her care, her daughter Sharmila or Nurul Nabila, her given Muslim name.”
Dr Jainah stressed that every citizen deserves equal protection as guaranteed by the Constitution, and in accordance with natural justice, the Federal Court should have ruled that the conversion of Deepa’s children unilaterally by the estranged husband is null and void.
She said not only was it unconstitutional but also against natural justice because it was done without hearing the mother or children.
“We should be reminded that the civil High Court gave custody of both children to Deepa in 2014,” she added.
Touching on another case, Dr Jainah expressed hope that the Federal Court in the Indira Ghandi case would take the opportunity to discuss and decide on the issue of unilateral conversion of the child in situation as in Deepa’s case.
“If the Federal Court chooses not to decide on the issue than this recent Federal Court decision would be a half-baked conclusion.
She also said that Wanita Upko is calling for the amendment on the law towards unilateral conversion.
“Let us not burden the courts to make interpretation of the law when it is unclear. We know the issues, we know the problems, why don’t we take the initiative of presenting the solutions by amending the law to make it clearer and just to all.
“A concrete and amicable solution to nullify unilateral conversion case is best attained through amendments to our existing laws,” she added.