Indira Ghandi case: Who is the real victim?

Baharuddeen Abu Bakar, Retired Advocate & Solicitor | .

Indira Ghandi v Mohammad Riduan Abdullah (K.Pathmanathan): Who is the real the victim: the Muslim father, the Hindu mother or the children?

Muslims ( including myself)  who sympathise with  Mdm Indira Ghandi on the loss of custody of her infant child and, even more fundamentally, her children’s loss of religious identity, should try to inform themselves (principally, Bro Zaid Ibrahim) about the law that made this position possible, perhaps even necessary.

The law-Law Reform (Marriage and Divorce) Act 1976, applicable only to non-Muslims,  (the ‘non-Muslim family law’) does not allow the Muslim convert spouse to approach the civil court to divorce and resolve other matters on his own initiative upon conversion to Islam; only the non-converting spouse may do so, only then may the Muslim convert spouse respond; sec 51.

This is the interpretation of the civil court; erroneous, I think, because the provision itself does not state or imply such a restriction, and may be unconstitutional for violating the equal rights provision (Article 8); and goes against the spirit that should  actuate the family law jurisprudence as espoused by the Ong Commission which formulated the non-Muslim family law: “The object of reform should be to enable the empty shell(of the marriage) to be destroyed with the maximum fairness and he minimum bitterness, distress and humiliation.”

This interpretation is not only erroneous and unconstitutional but also ironic. According to the advice of the then Att-Gen and Law Minister Tan Sri Abdul Kadir Shamsuddin when the Bill was in Special Committee stage, such a provision was introduced for the benefit of the non-Muslim spouse because his/her civil/personal law does not prohibit him/her from marrying or from remaining married to a Muslim; with this provision he/she could apply for divorce on the ground of the other spouse’s conversion to Islam whereas the converting spouse could on that ground alone get a divorce without the statutory provision. How the   provision became so completely warped need not delay us here; instead we should hasten to remedy the situation for the benefit of the spouses and their children.

As if the problem created by law is not bad enough, we have to suffer so much  confusing noise for instance Zaid Ibrahim writes: “The unilateral conversion of the minor, has been held to be valid by the court”. No, bro. The court simply said conversion is governed by the Syariah and is within the subject matter jurisdiction of the Syariah court. So saying the court did not and could not deal with the validity of the conversion.

 After a number of representations; complaints about intransigent non-Muslim judges who valiantly tried to restrict the growth of the Syariah courts; and statutory amendments including of the Constitution (Article 121 (1A)), the message seems to have been driven home: Syariah matters for the Syariah court and civil law matters for the civil court.

The Court of Appeal judges (excluding Abdul Hamid J) by declining to interfere with the Syariah court’s order (assuming they, validly, can) have only observed the universal principle of judicial comity so essential between judges of the same legal system, and imperative between different legal systems, one of which is religious, and their respective courts in the same country. Do you hear of Syariah judges interfering with the civil court? (The Syariah court may now evolve as a Muslim family court unlike in the past when divorcing Muslim spouses turned their fights into conflicts between civil courts and Syariah courts.)

What is the responsibility of the converting body when a married non-Muslim proposes to convert? Don’t Syariah administrators have to be circumspect? And advise on all the attendant interests and concerns of the intending convert and also how it will affect the non-Muslim spouse’s position. And where the conversion is intended against a background of marital discord, it is bound to raise suspicions of whether the intending convert is not trying to put himself beyond the reach of the civil court. However, apparently there is no power to examine motives. Given the present state of the law, lawyers for both sides may have to advise on the strategy to outwit the other side.

Where it appears the non- Muslim mother is not likely to go to court so that the Muslim father cannot apply for custody, the counteracting strategy is to abduct the children and unilaterally convert them so that they are now beyond the reach of the civil court. In fairness to Indira Ghandi it is not clear in this case whether the conversions took place before, during or after divorce.

Marital justice should not be a matter of the better strategy and greater daring prevailing, as it has become in conversion- of- one- spouse cases acted out before a national audience. As in all cases where both spouses are non-Muslim, it needs to be emphasised, or Muslim,  children become the bone of contention.   Non-Muslim mothers too strategize to stay away from the civil courts so that the Muslim father cannot apply for custody of the children, and if they can do so, till the children are grown up, custody becomes academic.

The bitterness of all divorces is mad worse in the minds of non-Muslims by Islam being seen as the wedge; every advantage is taken to punish the convert. And the law seems to be designed for the purpose. The bitterness of all divorces is mad worse in the minds of non-Muslims by Islam being seen as the wedge; every advantage is taken to punish the convert. And the law seems to be designed for the purpose

Indira Ghandi may now assert in the Syariah court the grounds suggested by Abdul Hamid J but she is reported to have rejected the idea outright fearing prejudice from the Syariah Court. She should submit to the jurisdiction of the Syariah court and challenge its capacity for doing justice in the same way that we expect the converting spouse to have confidence in a non-Muslim judge in the civil court. And Muslim NGOs may then monitor the treatment of Muslim converts in the civil court the way non-Muslims now cast their jaundiced eyes on the Syariah curt.

To the extent that the problem lies in the convert being statutorily barred, as it were, from going to court, the obvious solution is to amend the law. As long ago as  1990 Prof Ahmad Ibrahim had proposed an amendment to the effect that both spouses should be given the right to apply for divorce and for all other matters to be resolved to gather. The problem is even more compelling where the convert to Islam is the wife. Is she to be expected to afford her non-Muslim husband the same rights after her conversion as before it? As an initial step Parliament may amend the law in the case of Muslim wives. .

Perhaps it is not strange, in fact, quite telling that non-Muslims are not seen to be enthusiastic about changing the law now that they have the upper hand on the Muslim.

In the meanwhile, the ruling parties’ law makers hem and haw; and children are abducted, unilaterally converted to Islam who, because of their tender age, are given custody of to a non-Muslim parent, who having resisted Islam, cannot be expected to endear the children to Islam; and the result is future murtads? The children are indeed the real victims.

If nothing else, the likes of Zaid Ibrahim, if they cannot make any useful suggestions, should, at least, shut up.

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