How Our Sharia Law Is Costing Non-Muslim Mothers Their Kids (Even If They Win Custody)
A Muslim with a non-Muslim spouse who seeks his child's custody from the Shariah court is almost certain to win because the non-Muslim spouse has no standing.
By Sadho Ram — 15 Nov 2014, 01:52 PM — Updated over 9 years ago
Some more than five years ago, when M. Indira Gandhi, a resident of Ipoh, was trying to put her youngest child to sleep, her husband came home. He had been persuading her to convert to Islam. Gandhi, a committed Hindu, kept refusing. That night, he tried again but she held on to her Hindu faith, sparking a big row.
In this 16 October 2014 photo, M. Indira Gandhi shows photos of her youngest daughter Prasana Diksa during an interview at her house in Ipoh
Image via yimg.comHe threatened divorce. Both started shouting. Neighbours came looking. Suddenly, he snatched their 11-month-old daughter, Prasana Diksa, from the arms of their older child, tucked her under one arm and sped off on his motorbike. Gandhi hasn't seen Diksa since, even though a Malaysian civil court awarded her custody.
Her husband — who converted to Islam shortly before taking his daughter away — won custody in an Islamic court. Because Gandhi is not a Muslim, she was not even called to appear. Police have been unwilling to enforce the civil court's decision.
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Now, Gandhi, who works as a kindergarten teacher, is pining to see her daughter. In an interview to AP, she says: "No mother should ever have to endure this pain." Requesting the dual-system of law in Malaysia, she desperately asks to be given a chance. "We are all Malaysians. We should have equal rights."
Gandhi's case and others highlight perils of Malaysia's divided legal system, where majority Muslims use Shariah courts for religious and family issues such as conversion, divorce and death. The other 40 percent of the country — mainly Christians, Buddhists and Hindus — use a secular legal system inherited from the Southeast Asian country's British colonial rulers.
yahoo.comCritics accuse the ethnic Malay Muslim-dominated government of doing too little to resolve problems when those legal systems collide. The government has become increasingly reliant on support from Islamist and right-wing pressure groups as other constituencies flock to the opposition.
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And there are many similar cases, with some earlier cases turning out even worse for non-Muslims than Gandhi's case has so far. In 2007, the top civil court ruled that a Muslim spouse had the right to convert his children without the mother's consent.
In southern Negeri Sembilan state, Deepa Subramaniam's Hindu husband quietly embraced Islam in 2012 and formally converted both their children without her consent. He was then granted custody of the children by a Shariah court. Deepa turned to the civil court, which annulled her marriage on grounds of domestic violence and granted her custody of the children. Two days later, her ex-husband abducted their 5-year-old son.
phillytrib.comNational police chief Khalid Abu Bakar has refused to act on court orders to return either Deepa's son or Gandhi's daughter to their mothers. He has been cited for contempt but is waiting for a higher civil court to weigh in. He was quoted as saying by local media that police were "sandwiched" between legal systems and proposed that children caught in custody tussles be placed in welfare homes. Khalid did not return text messages from The Associated Press seeking comment.
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Knowing that a Muslim with a non-Muslim spouse who seeks custody from the Shariah court is almost certain to win because the spouse has no standing, many spouses in especially bitter custody battles sometimes convert to Islam to gain an upper hand
The government has long pledged to tackle legal ambiguities related to religious conversions. But a Cabinet decision in 2009 to allow minors to be converted only with both parents' consent has yet to be made legally binding.
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After the abduction of her daughter, Gandhi repeatedly called her husband and begged him to return Diksa, who was still on breast milk. Her husband, now called Muhammad Riduan Abdullah, initially told her again to convert to Islam, then stopped replying.
Gandhi found out that he had officially converted to Islam when she went to a police station to report the abduction. There she learned that he had also changed the birth certificates of the couples' other two children to state they were Muslims. Fearing that Islamic authorities may seize them as well, Gandhi went into hiding.
yahoo.comThe Shariah court granted Riduan temporary custody of all three children days after he abducted Diksa, and granted him permanent custody a few months later. No grounds were given by the Islamic court. In Perak and some other states, Shariah allows one parent to convert children to Islam without the consent of the other.
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In 2010, the civil court awarded Gandhi custody of all three children and ruled that the Shariah court had exceeded its jurisdiction. Her husband appealed the civil court's custody decision but lost. His appeal of the ruling on his children's conversions has yet to be heard.
In May this year, the court ordered police to arrest Riduan for contempt of court and return Diksa, now 6, to her mother. Yet with police refusing to act, she is no closer to her daughter. The case continues to go through the civil court system, where it may take years to resolve. His lawyer, Anas Fauzi, said in an email that Riduan refused to comply with the civil court ruling because he was bound by the Shariah order.
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Abdullah Zaik Abdul Rahman, head of the Islamic right-wing group Isma, and one of the many Islamic clerics who view the prospect of a Muslim child being brought up in a non-Muslim household as unacceptable, defended the Shariah courts' actions
Abdullah Zaik Abdul Rahman defended the Shariah courts' actions, saying the Muslim fathers are in a better position to raise the children as Muslims. He said the law should be changed to allow Shariah courts to hear petitions from non-Muslims, and added that "its decision must be final."
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But Muhammad Asri Zainal Abidin, an Islamic scholar and a former state mufti, said children caught in such custody battles should be able to live with non-Muslim mothers as long as they care for them
"There is no compulsion in Islam. Nobody can force others to embrace a religion, not even their parents. Leave the matter to the children to decide when they are old enough," he said.
yahoo.comDiksa is now called Ummu Habibah Muhammad Riduan. She lives with her father in a Muslim community in northeastern Kelantan state. According to her father's lawyer, "she has adjusted well."
His lawyer, Anas, said she has adjusted well and that "both the father and the daughter receive moral and physical support from the local society." Riduan does not provide financial support for his other two children, now 16 and 17, who have remained with Gandhi throughout the dispute. Anas said that since his client converted, "the conditions and the circumstances do not even allow both disputed parties to have any relationship."
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Gandhi did, however, finally receive recent photos of Diksa this year. In one, a smiling Diksa is clad in a black Islamic headscarf, posing with her father. Every day, at an altar in her home, Gandhi lights a candle for Diksa and prays that she comes home.
"Whether she is a Muslim or not, it doesn't matter," she said. "She is still my daughter. All I want is to hold and embrace her. I have missed many precious moments with her. I will fight until I get my child back."
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