It’s Been 7 Years. Will This Mother Ever Reunite With Her Youngest Daughter?
Interfaith child custody cases in Malaysia are known to be controversial and complicated as it involves the decision making and jurisdiction of two very separate courts, the Islamic Syariah court and the civil court
The country, in the past few decades have seen quite a number of cases involving unlawful conversions, such as the landmark case of Chang Ah Mee v Jbt. Hal Ehwal Agama Islam (2003) in which a father converted to Islam and proceeded to also convert his child to Islam without the knowledge of his wife and the mother of the child, Chang Ah Mee on 28 July 1998.
A few months later, Chang Ah Mee gained custody of her child and also got the civil court to declare the child's conversion to Islam as void. At the time of the cases ,the Sabah High Court stated that it has jurisdiction over state matters, even if it involves the Islam religion.
Thus, under the Federal Constitution (article 12), The Guardianship of Infants Ordinance (Sabah) 1999, The Law Reform (Marriage and Divorce) Act, 1976 and The Administration of Islamic Law Enactment 1992 (Sabah), the court eventually declared the conversion void.
Subsequently, in a similar case of Shamala Sathiyaseelan v. Dr. Jeyaganesh C. Mogarajah (2003), problem arose when the father, Dr. Jeyaganesh obtained a custody order from the Syariah court after converting the children, without the knowledge and consent of the mother, Shamala. The case ended with the High Court's ruling that gave the custody of the children to Shamala, with access to the father, while warning her to not "influence" the children with her Hindu traditions.
A brief overlook on the legal system of Syariah courts and civil courts in Malaysia:
The Malaysian justice system is divided into two separate judicial systems. The first consists of the Supreme Court, Federal Court, Court of Appeal, High Courts, Sessions courts and the Magistrates Court.
These courts have the jurisdiction over legal matters pertaining Malaysians and the country in-itself, by following the secular justice system, based on laws gazetted in the parliament.
The other judicial system is that of the Syariah Court which handles all legal matters related to issues concerning all Muslim Malaysians, by complying the Islamic sharia law.
The powers of the Syariah court are limited to granting three years of imprisonment, a fine of up to RM5,000, and/or six strokes of the cane.
In 2009, Malaysia was once again slapped with the harrowing interfaith custodial battle of M. Indira Gandhi's three children, that is still ongoing, stuck between Malaysia's two-tiered judicial system
Over the years, Indira's child custody case has taken many dramatic turns involving both the Syariah and the Civil court.
To help you better understand this complex case, we have put together this set of questions and answers, based on all the reports on it, to date.
What is the M. Indira Gandhi child custody case all about?
In April 2009, 34-year-old, M. Indira Gandhi's life took an unexpected turn when her ex-husband converted himself and their three underage children to Islam without her knowledge and consent.
Indira's ex-husband, Muhammad Riduan Abdullah, converted the three children, Tevi Darsiny, then 12, Karan Dinish, then 11 and the youngest, 11-month-old Prasana Diksa to Islam in April 2009.
Four months later, on 29 October 2009, Riduan obtained a Syariah court order, awarding him custody for all the three minor children.
In a landmark ruling on 11 March 2010, the Ipoh High Court overruled Syariah Court's decision by providing Indira with full custody for her three children, thus ordering Riduan to return the children back to Indira's care.
However, Indira's ex-husband Riduan went against the Ipoh High Court's ruling in 2010 which returned the custodial rights back to Indira, by refusing to hand over the couple's youngest child, Prasana Diksa to her
On May 30 this year (2014), High Court judge Lee Swee Seng, cited Riduan for contempt and issued a warrant of arrest against him after he repeatedly failed to hand over Prasana Diksa to Indira.themalaysianinsider.com
Following that, Judge Lee also instructed the police force to locate Riduan and return Prasana back to Indira. The father-daughter duo's whereabouts were unknown after Riduan took off with the then 2-year-old Prasana in 2010.
Meanwhile, Inspector-General of Police Tan Sri Khalid Abu Bakar, made an outright refusal to get involved in this custodial battle, citing reasons that the police force does not wish to take sides between the Syariah court and the civil court's decisions on the case.
Instead, Khalid assured that he has ordered the police chiefs of Perak and Negeri Sembilan to ensure that the children are kept under the care of welfare centres in the area, allowing both the parents to visit and spend time with the children till the case is sorted, legally.
What is the religion status of Indira's three children as of now?
On 25 July 2013, judge Lee Swee Seng overturned the conversion of Indira's three children to Islam by her ex-husband in 2009, thus declaring that the certifications of conversion were unconstitutional and null.
According to this ruling, the children who were born as Hindus, would by right be considered Hindus as of now.
Lee cited provisions under Perak Shariah law where the children must be present to utter the affirmation of faith or the “syahadah”.
He said the Perak state enactment required a child to be present before a certificate of conversion could be issued.
In a sudden turn of events, on 30 December 2015, the Court of Appeal overturned the declaration by the Ipoh High Court which states that the conversion of Indira Gandhi's children is considered void
The three-man bench headed by Justice Balia Yusof Wahi ruled in a majority decision that the Ipoh High Court did not have the jurisdiction to hear the conversion of kindergarten teacher M Indira Gandhi's children by her ex-husband.
"The majority view this court is taking (is that) ... it is beyond a shadow of a doubt, whether or not a person is Muslim, (the case) falls under the exclusive jurisdiction of the syariah court.
"The validity of the conversion is also the exclusive jurisdiction of the syariah court," Justice Balia said in his judgment.
However, the court did not make a ruling on the eldest child's conversion as she is now 18-years-old.
Dissenting judge, Justice Hamid Sultan Abu Bacher, instead thinks that the conversion of Indira's children was null and void from the beginning as it did not comply with the rules of conversion under the Perak state law
In his dissenting judgment, Justice Hamid said the matter of conversion was void from the start as under Perak state law, the children had to apply to convert themselves with the parents' consent.
"In this particular case it is the father who made the application; there is no provision for that," he said.
Justice Hamid (photo) also found the matter to be purely administrative, and therefore not under the Syariah court's jurisdiction.
Shedding light on the legality of the issue, Justice Hamid added that a minor who wishes to convert must have the consent of the guardian
The conversion certificates issued for the three children also had nothing to do with the jurisdiction of the religious court, Hamid said in his written judgment that was released today.
He said the Section 50 of the Perak enactment did not empower the Shariah Court to have jurisdiction over non-Muslims and such an order was in breach of rule of law and inconsistent with the national philosophy Rukunegara that included upholding the Federal Constitution.
"In the instant case, it is not in dispute that the children have not made the application, have not recited the ‘Kalimah Shahadah’ or have requested the appellant (Riduan) to give consent to their conversion," he said.
Indira's lawyer M. Kula Segaran, stressed that they will easily give up and will be completing her appeal process at the Federal Court, after they receive the written grounds of the Court of Appeal's recent ruling on the matter
Her team of lawyers are awaiting the written grounds of the Court of Appeal ruling before framing legal questions to obtain leave from the apex court, he said.
"She has given a firm instruction that her case should be ventilated in the highest court of the land, come what may be," Kula Segaran told The Malaysian Insider.
Constitutional lawyers yesterday said Indira must exhaust all legal avenues since the Court of Appeal ruling last week held that conversion was a religious matter for the Shariah Court to decide.
In the midst of this messy custodial battle, here's what local NGOs and politicians have been saying about the M. Indira Gandhi case:
Former Malaysian law minister, Datuk Zaid Ibrahim expressed his utter disappointment over the case's recent updates, asking whether the case would have been handled the same way, should the conversion be to Christianity instead
“Nothing is crueller to children than to deprive them of the love of their mothers,” Zaid wrote.
In his blog post, Zaid also raised the question of whether the same ruling would have been made, if the tables were turned.
“If Indira had been a Muslim mother, and the former husband did the unilateral conversion of the daughter to say Christianity, would the decision still be the same?” he said.
"Let the arguments put forth by Indira and the decisions of the judges be documented and aired for the world to see. If Indira’s lawyers agree with this initiative, start the fund rolling. I am sure we can raise enough for a good film about love and wickedness.
I would like to appeal to all Malaysians who care about this case to start raising funds ; not to cover the legal costs of the appeal to the Federal Court, which will be futile, but to make a film about the tragedy suffered by Indira," he wrote in his blog today.
Meanwhile, Lawyers for Liberty's (LFL) legal and campaign coordinator Melissa Sasidaran wants the government to declare unilateral conversion of minor children as unconstitutional, seeking justice to all those that are battling a similar fate as Indira's
In a statement released today, the group expressed their disappointment over the recent Court of Appeal decision in the M. Indira Gandhi case and stated that other non-Muslims might face the same issue in the future.
“We are extremely disappointed that the judiciary has once again failed to uphold the constitutional rights of M. Indira Gandhi, thus leaving non-Muslim individuals in similar predicament with no recourse to justice.
“Indira’s case is one of the many cases where conversion to Islam by one spouse is being taken advantage of to win custodial disputes.
“Although the dissenting view of Hamid Sultan Abu Backer JCA is very much welcomed, the majority of the Court of Appeal panel effectively abandoned its duty to put an end to this protracted sorry state of affairs by viewing the case through ‘religious’ prism and deferring Indira’s legal battle to the Syariah Court,” she said.
Tevi Darsiny, 18 Karan Dinish, 17 are currently under the care of their mother, Indira while the youngest, Prasana Diksa, 6, resides with her father, Riduan Abdullah.
In April 2013, a case similar to Indira's came to light when one S.Deepa's newly converted husband, Izwan Abdullah, kidnapped their 6-year-old child after she was given custody of their children: