This downhearted lady left the country with her two children. She must have felt that there would be no justice for her and her children in this country. Her former husband is now a ‘Muslim’. He wants custody of his two children, as according to him he has also ‘converted’ his two children to Islam. And this was done without his former wife’s knowledge or consent. To some people, the perception is that this is a sheer ruse just to get custody of the children.
A mother’s love for her child has no frontier. A mother could even battle to save her child from a lion’s jaws. This strength of love is a divine attribute found in a mother. This impulse of her cannot be decoded by any human-made laws.
Unfortunately, there are men who would want to snatch his children from their estranged wife by converting to Islam. And one wonders how non-Muslim children, some of whom are only infants, can be converted to Islam by one of their parents after a matrimonial dispute. This, in a way, defies human sense.
The legal implications
The statutory law on conversion to Islam in Malaysia is dealt with under provisions of the various states’ Administration of Islamic Law enactments. Similar provisions cited here are also found in the enactments of other states.
“…. that no person who had not attained the age of puberty should be converted.” (Selangor’s Administration of Muslim Law Enactment 1952)
“… that for a valid conversion of a person to Islam, the person (1) must utter in reasonably intelligible Arabic the two clauses of affirmation of faith; (2) must be aware that the two clauses mean “I bear witness that there is no god but Allah and I bear witness that the Prophet Muhammad s.a.w. is the Messenger of Allah”; and (3) must utter the two clauses on his or her own free will.” (Section 96, Perak’s Administration of the Religion of Islam Enactment 2004)
“… a person may convert to Islam only if he or she is of sound mind and has attained the age of 18 years. If below that age, he or she must have the consent of the parent or guardian.” (Section 106, Perak’s Administration of the Religion of Islam Enactment 2004)
Does the conversion to Islam by a parent make his or her children Muslim? It is stipulated in here:
“… defines ‘Muslim’ as … (b) a person either or both of whose parents were at the time of the person’s birth, a Muslim; (e) a person who has converted to Islam in accordance with section 96.” (Section 2, Perak’s Administration of the Religion of Islam Enactment 2004)
From the above provisions, conversion to Islam is evidently a personal act of the person wishing to convert by his or her utterance of the two clauses of the affirmation of faith. Above all, he or she must utter the two clauses on his or her own free will. So, how could a child then be converted to Islam by the parent? The parent can only consent to the child’s conversion. The child’s conversion to Islam, in any case, is not valid if the child has not uttered the affirmation of faith on his or her own free will. A certificate of conversion, for that matter, will not remedy the non-compliance with requirements of a valid conversion to Islam.
The social implications
A man converts to Islam in this country for three reasons. The first category involves those who are truly sincere and love the religion. Not many though fall into this category. The second category involves marriage. Love is blind, and when a man falls in love with a Muslim girl he converts to marry her. Most converts in this country fall under this country. Many stay on with the religion until death and there also have been many cases where they leave the religion when the marriage breaks up. The children in this situation would be the victims – they could end up facing a social disgrace. They end up having parents professing different religions – Muslim and not a Muslim. This is quite a stigma in the Malaysian society.
The third category is the most dramatic. It involves play-acting. When he finds that his marriage is no more compatible he conveniently decides to convert to Islam. He may have three reasons to do so. First, he would claim to the society that he ‘loves’ the religion. God knows the truth, though. Second, he would want to have custody of the children and in the process quietly convert the children to Islam without their mother’s knowledge. He probably sense that the ‘Muslim law’ would favour him in this situation. Third, he wants to avoid paying alimony to his former wife and refuse to give her a designated portion of any property earned by him, his former wife or jointly when they were husband and wife. He believes that when he becomes a Muslim he has no more responsibility towards his former wife, or perhaps in some cases his children too.
This sticky situation is indeed giving a bad name to the religion of Islam in the eyes of non-Muslims and women in general. In the case of non-Muslim women who could sense that they would lose their children, many were coaxed – surprisingly even by Muslim women and NGOs – to leave the country. The men would then be left chagrined, in this case. He has stepped into another religious territory thinking that he would get the custody of the children but now he has lost them to his former wife as she has now eloped and found a safe heaven out of the country. He cannot claim custody of his children by virtue of his conversion to Islam in any other part of the world, except Malaysia.
To escape responsibility
In this country, it has become some sort of a trend where some men convert to Islam to escape responsibility towards their former wife, also at times their children. He falls short of understanding that custody of children cannot be solely based on religious ground but the emotional bond of a child and mother or father would also be of prime concern of the law. If the law on this matter is fair, parents do not have to elope with their children to another country.
Malaysia probably is the only country in the world where some parents make use of religion to shirk their responsibility over their duty to pay alimony to the deserted spouse and children. And religion is abused to claim custody of children. Converting to another religion is at times perceived as play-acting to shirk this responsibility. The aggrieved party having no avenue to argue on this point of law or go through all the tedious legal process – at times with no financial resources – would simply take a drastic move to elope with the children.
And in this case, court decisions end up becoming a mere academic exercise. Money wasted on lawyers and time wasted on fiery arguments in the court of law would end up becoming a fruitless effort. It only would have affected the children psychologically more than anything else.
Murky dogmatic views
A Muslim law lecturer in a local university has this to say: “In a multi-racial country there must be apposite decisions on converts and their matrimonial responsibilities. The authority should affirm a law fair to all – Muslims and non-Muslims – and educate the people to accept reality in life as much as having faith in God.” To this point, a marriage solemnised in the civil court must be nullified in the same court in the name of justice. To the people at large, at times they would want common sense to prevail and not to allow certain murky dogmatic views cloud their sense of judgment.
A Syariah lawyer in the city has this say: “The converting of underage children should not be done unilaterally. A converted parent should not unilaterally convert his or her children with the intention of having custody of them. A parent should not flee from his or her contractual knot, shirk his or her responsibilities to pay alimony or maintenance by conveniently converting to another religion.”
There is murkiness in the whole situation here: Is it a case of conversion due to incompatibility and marital disharmony or is it because of one’s earnest desire to convert and have faith in the newfound religion? Or is it an issue of using conversion as a flimsy contrivance to escape from one’s marital problems and tacitly wriggling out of responsibilities that is tantamount to faithlessness in religion?
Mere academic rhetoric
The view of a civil lawyer in town on this matter is: “A parent who has marital problem or who is irresponsible towards his or her spouse should not seek a way out of the mire by expediently converting to another religion. This is synonymous to deceitfulness. To be conniving and devious are also against the tenet of every religion.”
Unfortunately, there are people in our society who make use of religion to get away from their marital responsibilities. There are also a small number of ‘irrational’ groups in our society who condone this act –citing various superfluous and sentiment-driven reasons to justify their arguments. More often than not, these views are politically shaded.
On the other hand, there are also people who want to be too academic about the whole issue and this usually ends up with the whole affair ending up as mere academic rhetoric. This gives no added value to social harmony in a multi-racial society. An NGO member has this to say: “Let’s not insult our God-given intelligence to mankind by succumbing to all this nonsense.”
A person undeniably cannot tell the oblivious from the obvious. From the Islamic point of view, however, there is no form of coercion to make a person convert to the religion. The primordial and unswerving intention to convert or seek faith in Islam should come from within oneself, not at all predisposed by any ulterior motives or selfish benefits. Another Syariah lawyer snapped: “Coercion can be in the form of bad faith or intentional means. There is no coercion in Islam, though.”
Worldly justice to the aggrieved party
When the intention to convert is merely to ‘run away’ from responsibilities – which are dutifully and contractually bound in a marriage – the conversion thus becomes a coercion of sort and it is not done with sincerity. This can be obvious but the law has not dealt with this issue stringently.
Insincerity in conversion is tantamount to hypocrisy. God knows best what the intention is, but human beings are also given the right to determine what is right and lawful and what is wrong and unlawful for mankind. This is to ensure that there is justice and order in society, especially when it involves matrimonial issues in a multi-racial and multi-religious society.
For this reason, a system of judgment should include impartial elements of law and order as part of its role to ensure a peaceful life process. There has to be worldly justice to the aggrieved party and the underage children. Custody of children should effectually take this factor into consideration. A child in the period of breast-feeding and early love, security and upbringing of the child (the period of hadanah), for instance, should rightly be with the mother after a divorce no matter whether she is a Muslim or not, or even when her estranged husband has adopted Islam as his religion and she has not.
In the case of a daughter who has not ‘attained age’, the right of custody should be given to the mother — unless the mother refuses or she is ‘socially unfit’, as decided by an independent judge, to take care of the child. In this case, the maternal grandmother should first take custody of the child if she is ‘socially fit’ and able.
When a child has attained maturity age, he or she can decide what is best for him or her – to be with the father or mother. It is customary in all courts of justice that both parents are given their visiting rights in the case where parents and children decide to live separately and they are found to be ‘socially fit’ to do so.
Spouse and children should not be victimised
As for professing a faith, there should not be any form of compulsion. Nevertheless, a convert to any religion should do it respectfully and with a clear mind and conscience. When the obvious shows that there are some ulterior motives for the conversion, or he is found to be socially unfit – a drunkard, a child beater or a social deviant – the person’s intention should be scrutinized for his behaviour and sincerity. If it is found to be logically unconvincing, he should be reproached – no favour or benefits should be given to him.
This does not mean that he should not be allowed to convert and follow the teachings of his new-found religion. He should first settle his old scores, no matter what his new faith’s status is. This is a religious duty. A religious man honours his contractual terms and conditions. He can leave his former faith but with all past legal responsibilities honoured and cleared. In other words, first settle his ‘debts’ in compliance with the way they initially solemnised their marriage in the civil court. Regrettably, there is no political will on the part of Barisan Nasional (BN) to enact a law on this abuse of privilege of a convert.
No one stops a person from converting to Islam, but he has to settle his dues first and come out clean before he embraces the religion. The spouse and children should not be victimised in the name of conversion and religion. Then again, a conversion of convenience – as in the case of seeking pleasure, for rewards, avoiding maintenance and seeking child custody – may only make the new-found religion a farce to the convert. It may not likely bring lasting faith reconciliation to the person, as his conscience would tell him that he is not really into his newfound faith, but decided to fall into it for some other ulterior or mischievous motives.
No parent should unilaterally convert a child
He will only come out clean as a convert after he has dutifully settled his responsibilities under the contractual obligations of the civil marriage. For this purpose he has to go back to the civil courts to settle his marital disputes. A marriage in any religion or culture is a contract entered into with mutual consent. A couple who enters marriage should know that they have tied a knot following the conditions and circumstances at that point of time. Never did they enter into an agreement with a ‘blank cheque’ that could be endorsed as that if one party converts to another religion he or she would have the right to also convert the children, pay no maintenance or alimony.
Thus, the act of justifying the act of converting the sired children does not arise. What more if this act of conversion is to justify having custody of the children and refusing to pay for child maintenance or alimony. A wise decision would be that no parent should unilaterally convert a child. It has to be done with the consent of both parents. No person should use religion to shirk their responsibilities towards their spouse and children. No person should use religion as a pretext for gaining custody of a child. This should be the ideal legal framework in a multi-racial and multi-religious society. Again, politics in religious matters in the country have cloaked and shammed the many issues of matrimonial disputes between Muslims and non-Muslims in this country.
BN has been sluggish
There is always a likelihood that a convert may leave the religion after pulling off his needs. Many of these ‘actors’ in the past have left the country after seeking redress to their wanton desires by exploiting on religion. The authority has not been responsive to this form of hypocrisy and has never taken anticipatory measures not to condone this hypocrisy, nor has it taken steps to counsel the converts-to-be before they are legitimately accepted into the fold and given what he demands in a marital dispute.
BN has been sluggish in addressing this grave matter that has hurt the non-Muslims more in most cases of marital disputes involving two parties – Muslim and non-Muslim. In a way, the whole state of affairs pertaining to this muckiness in marital issues involving citizens of different faiths have been politicised to please the Malays and Muslims more than the non-Muslims. Many non-Muslims have been deprived of their rights because of this lopsidedness in expensing justice.
A case in point is, if our laws on marriage, divorce and child custody are seen to be fair – irrespective of a person’s faith in religion, the downhearted Hindu mother would not have eloped to a foreign land with her two innocent children.
Malaysia Chronicle
