Monday, February 29, 2016

      Amendments to Family Laws


It is up to an individual who has attained the age of eighteen to decide the religion he wishes to follow; however, it cannot be denied that the former familial duties and responsibilities of the person changing the religion persist until suitable arrangements are made by the spouses themselves, or finally settled by the civil court in respect of future maintenance of the children of the non-Muslim marriage, their education and their religious upbringing.

Although the law has made it clear that the High courts shall have jurisdiction in matrimonial matters when one spouse has elected to leave the religion at the time when the non-Muslim marriage was solemnised, and it is also clearly spelt out in all the State Enactments that the Shariah courts shall have no jurisdiction in matrimonial matters, where the parties are not Muslims, yet the claim that there prevailed jurisdictional conflict is indeed baffling. In fact there is no jurisdictional conflict at all.

Another point that needs to be made plain is the fact that every State Enactments has enacted that for the Shariah court to exercise its jurisdiction the parties before it must be Muslims. If one of the parties is a not Muslim, Shariah cannot exercise its jurisdiction. This has been very clearly emphasised by the late Tan Sri Prof. Ahmad Ibrahim in his essay: “The Amendment to Article 121 of the Federal Constitution: Its Effect of Administration of Islamic Law [1989] 2 MLJ xvii”.

However, for two decades and more, inconsistent interpretation of the statutory provisions had been the source for the infinite agony for parents whose children had been snatched away. The latest cases of Indira Gandhi and Deepa had indeed awakened the conscience of the Malaysians transcending beyond racial and religious differences and sentiments.

While so much of discussion has centred on the jurisdictional question one important fact that seems to have been over looked is the status of the children when one parent converts to Islam. The courts have not so far explained what would be the legal status of a child under the age of eighteen years when one of the parents having converted to Islam, a dispute arises as to the custody of that child (or children) of a non-Muslim marriage? Can one of the parents exert authority on the children to the exclusion of the other, or has the child by reason of the dispute between the biological parents in consequence of the conversion of one parent has become a ward of court; thus, only the High Court has the jurisdiction and power to order custody and other ancillary reliefs in accordance with the provisions of the Guardianship of Infants Act 1961 and the Law Reform (Marriage and Divorce) Act 1976.

            Further, has the Shariah court any jurisdiction on a non-Muslim child born of non-Muslim parents when one of the parents had subsequently converted to Islam and the non-Muslim marriage has not been dissolved, in the light of section 42 (2) (b) (i) and (ii) of the Administration of Islamic Law Enactment 1989 (Enactment No. 2 of 1989) which says that the Shariah court shall have jurisdiction if all the parties are Muslims. Thus, when a child is not a Muslim can the Shariah court exercise jurisdiction over it? These are the points which call for mature deliberation.

The Government, it appears, is considering amendments to the laws to put an end to the kind of sufferings Indira Gandhi and Deepa have had been subjected besides many others.

While this move is laudable it would be wise to publish the proposed amendments so that the public will have an opportunity to make representations. The Government should not take the view that it knows best, therefore, it is best equipped to deal with the matters complained of. This is not true as can be seen from the inconsistent interpretations that had surfaced. Besides, it should not seek protection under the cover of sensitiveness and be a source to greater conflicts.

K.Siladass