AUTHOR DECLARATION

الرحيم الرحمن الله بسم

I hereby declare that the work in this academic project is my own except for quotations and summaries which have been duly acknowledged.

Date: 2nd April 2007 Signature :Name : Abang Isaifuddin Bin Abang NoranMatric No : 1040344Adress : No. 80, LOT 3718, Tmn Sri Wangi,

Kuching, Sarawak.

ACKNOWLEDGEMENTS

Grateful to Allah SWT and His Messenger Muhammad SAW…

With great pleasure, I would like to take this opportunity to thank to everyone who has either directly or indirectly helped me in writing and finishing this project paper and appreciation is due to Madam Norfadhilah Mohd Ali, supervisor of this research project for his continued support and guidance during the research.

Equally important, I extend my appreciation to Baitulmal Sarawak because supporting me in financially. Besides that, I would like to thank all librarians especially USIM’s librarian because of guiding me in many aspects, your help in this academic project would never be forgotten.

My family also deserves special acknowledgement. Not forgetting, especially for my parents, my father Abang Noran Abang Norudin and my mother Suraya Mohamad Hanis and to my siblings. Thank you so much for your support and your prayers.

Special thanks I dedicate to all my colleagues, especially to Roslaini Yaakob who always give me the moral support I needed and encourages me in finishing this work. May Allah bless you.

Finally, I would like to thank Muhamad Al Hafis Zakaria, Kamaruzaman Sharudin, Abdullah Mukhti and Mahathir Mazizan for their support and their encouragement throughout the years I have lived in Nilam Court. Without them this academic project would have never been made, and to them I dedicate it.

ABSTRAK

Kajian ini memberi penekanan terhadap isu pertukaran agama di dalam senario Malaysia. Kajian ini menggunakan kajian perpustakaan sepanjang tempoh kajian ini berlangsung. Kajian yang telah dibuat adalah untuk memberikan perbandingan bagaimana mahkamah membuat penghakiman mereka berkenaan dengan permasalahan ini. Selain itu, kajian ini memberi prinsip asas untuk mengenalpasti sama ada Mahkamah Syariah mahupun Mahkamah Sivil mempunyai bidang kuasa ketika berlakunya pertukaran agama sama ada pihak yang terbabit itu Muslim ataupun sebaliknya. Selanjutnya, kajian ini memberikan pemahaman yang lebih baik mengenai pertukaran agama melalui penghakiman yang telahpun diputuskan oleh mahkamah. Disepanjang kajian ini, penulis akan menghuraikan serta menjelajah permasalahan yang sering timbul mengenai pertukaran agama dalam ruang lingkup masyarakat Malaysia.

ABSTRACT

This study emphasizes on the change of religion in the scenario of Malaysia. The writer uses the library research in this study. The study tries to make a comparison on how the court made their decision pertaining to this matter. Besides that, the study gave the general principles to identify whether Syariah Court or Civil Court have the jurisdiction when it comes to the issue of change of religion either by Muslim or Non-Muslim. Furthermore, this study seeks way to better understanding about the change of religion in Malaysia based on judicial response. Through this study, the writer will describe and explore the problems that existed regarding the change of religion among the Malaysian.

البحث ملخص

ماليزي��ا. س��يناريو في ال��دين تغي��ير على تأكي��د الدراس��ة ه��ذه+ن الدراسة. الدراس��ة هذه في المكتبة بحث الكاتب يستعمل َأ

ق��رارهم محكمة جعلت هكذا المقارنة لعمل المحاوالت تجعل الدراس��ة َأعطت ذل��ك، إلى المس��ألة. إض��افة ه��ذه إلى يخّص7

+و شريعة محكمة سواء للتمييز العام7ة المبادئ مدني��ة محكمة َأ ال��دين تغي��ير بقض��ية األمر يتعلق عندما القضائية السلطة لهما+و المس�لم قبل من َأم7ا تري�د ذل�ك، على المس�لم. عالوة غ�ير َأ

+ن طريقا الدراسة هذه ال��دين تغيير حول الفهم َأوضاع يحس7ن َأ الدراس��ة، ه��ذه القض��ائي. خالل ال��رد على مستند ماليزيا في

بخص��وص وج��دت ال��تي المشاكل ويستكشف سيصف الكاتبالماليزي. بين الدين تغيير

CONTENTS Pages

AUTHOR DECLARATION iACKNOWLEDGEMENTS iiABSTRAK iii ABSTRACT iv MULAKHKHAS AL-BAHTH vCONTENT PAGE viLIST OF CASES viiiLIST OF STATUTES ixLIST OF APPENDICES xGLOSSARY xiABBREVIATION xiiPROPOSAL xiii

CHAPTER 1: AN OVERVIEW ON CHANGE OF RELIGION IN MALAYSIA

1.1 Introduction 11.2 Right To Freedom Of Religion 41.3 Scenario In Malaysia 71.4 The Problems Arose Due To Change Of Religion 9

CHAPTER 2: JUDICIAL RESPONSE: EFFECTS OF CONVERSION ON MARRIAGE

2.1 Introduction 102.2 Effect Of Conversion On Marital Status By The Islamic Law In Malaysia 112.3 Effect Of Conversion On Marital Status Under LRA 132.4 Decided Cases

2.4.1 Pedley v Majlis Ugama Islam Pulau Pinang 142.4.2 U Viswalingam v S Viswalingam 162.4.3 Ng Siew Pian v Abdul Wahid Hassan 182.4.4 Public Prosecutor v David John White Alias Abdul Rahman 192.4.5 Tey Siew Choo v Teo Eng Hua 212.4.6 Shamala Sathiyaseelan v Dr Jeyaganesh C. Mogarajah & Anor 22

CHAPTER 3: JUDICIAL RESPONSE: EFFECTS OF CONVERSION ON MAINTENANCE OBLIGATION

3.1 Introduction 233.2 Right To Maintenance

3.2.1 Concept Of Maintenance Of Wives 233.2.2 Maintenance Of Children 25

3.3 Decided Cases3.3.1 Letchumi v Ramadason 263.3.2 Tan Sung Mooi v Too Miew Kim 273.3.3 Eeswari Visuvalingam v Gov of Malaysia 293.3.4 Koh Yian Geok v Zulkifli Tan Bin Abdullah 323.3.5 Majlis Agama Islam Wilayah Persekutuan lwn Lim Ee Seng

& Satu lagi 33

CHAPTER 4: CHANGE OF RELIGION: RECENT CASES IN MALAYSIA

4.1 Introduction 344.2 The Reported Cases

4.2.1 Rayapan 344.2.2 Kalliamal 374.2.3 Muhammad Shafi Saravanan Abdullah 374.2.4 Lina Joy 38

4.3 Conclusion And Recommendation 39

BIBLIOGRAPHY 43APPENDICES 46

LIST OF CASES

PageAbdul Razak v Lisia Binti Mandaaie alias Maria Menado [1965] 1 MLJ XVi

10

Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah Bukit Mertajam & Anor [1992] 1 MLJ 7

9

Eeswari Visuvalingam v Government of Malaysia [1990] 1 MLJ 86 29Koh Yian Geok v Zulkifli Tan Bin Abdullah [1995] 2 AMR 1525 32Letchumy v Ramadason [1984] 1 MLJ 143 26Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Ors [2005] 4 CLJ 666

8,38

Majlis Agama Islam Wilayah Persekutuan lwn Lim Ee Seng & Satu Lagi [2000] 2 CLJ 597

9,33

Ng Siew Pian lwn Abd. Wahid Bin Abu Hassan, Kadi Daerah Bukit Mertajam & Satu Lagi [1993] 1 CLJ 391

18

Pedley v Majlis Ugama Islam Pulau Pinang & Anor [1990] 2 MLJ 307 14Public Prosecutor v David John White Alias Abdul Rahman [1940] MLJ 214

19

Re Timah Binti Abdullah [1941] MLJ 51 34Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah & Anor [2004] 2 CLJ 416

22

Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia (PERKIM) Kedah & Anor [1999] 1 MLJ 489

8

Tan Sung Mooi v Too Miew Kim [1994] 3 MLJ 117 27Teoh Eng Huat v Kadhi Pasir Mas & Anor [1990] 2 MLJ 300 4Tey Siew Choo v Teo Eng Hua [1999] 6 CLJ 308 21U Viswalingam v S Visvalingam [1980] 1 MLJ 10 16

LIST OF STATUTE

PageDistribution Act 1958 33Islamic Family Law (Federal Territory) Act 1984Law Reform (Marriage and Divorce) Act 1976Federal Constitution 4,5,22,23Administration of The Religion of Islam (State of Selangor) Enactment 2003 2,3Administration of Islamic Law (Federal Territory) Act 1993 22,23Guardianship of Infant Act 1961 (Act 351) 23

LIST OF APPENDICES

PageAppendix A: Berita Harian 46Appendix B: NSTP e-Media 47-48Appendix C: New Straits Times 49-50

Glossary

bigamy : the offence of marrying someone while already married to

another person

decree nisi : a conditional decree of divorce, nullity or presumption of death.

For most purposes the parties to the marriage are still married

until the decree is made absolute

fasakh : annulment of a marriage by reason of any circumstance permitted

by the Islamic law

fatwa : a legal decision on hukum syara’ issued by a mujtahid

ipso facto : dissolve on the spot

kitabiyah : a woman whose ancestors were from Bani Ya’kub; or

a Christian woman whose ancestors were Christians before the

prophethood of the Prophet Muhammad; or

a Jewess whose ancestors were Jews before the prophethood of

the Prophet Isa

muta’ah : consolatory gift that is reasonable according to Hukum Syara’

which given to the divorced wife

hadhanah : custody

Hadith : the words, action, silent that relate to Prophet

redress : remedy

Sahabah. : companions

Shahada : submission

ABBREVIATION

AMR All Malaysian ReportsCLJ Current Law JournalH hijriyyah MLJ Malayan Law Journaln.a no author/no artistn.d No datep. Pagep.b.u.h Peace be upon himSAW salla Allãh alayh wa sallamSWT subhānahu wa ta’ālāvol. Volume

PROPOSAL

Background Of The Study

The consequence of Moorthy’s case or Moorthy @ Mohamad Abdullah has given

controversy especially to the position and jurisdiction of Syariah Court and Civil Court.

Moreover, it has touched many aspects including the constitution. This controversy is

attention-grabbing because there are points of view that he is not a Muslim. But the

Syariah High Court of Kuala Lumpur decided that Moorthy must be buried according to

Hukum Syarak because he has been registered as a Muslim at Majlis Agama Islam

Wilayah Persekutuan.

Statement To The Problem

The main concern of this study is to find out how change of religion gives effects on

marriage and maintenance.

Purpose Of The Study

The purpose of the study is to identify whether Syariah Court or Civil Court have the

jurisdiction when it comes to the issue of change of religion either by Muslim or Non-

Muslim. Does the action of change of religion will effect on one status? For example,

will it effect on his identity, validity of the marriage, obligation and personal possession?

Significance Of The Study

This study seeks way to better understanding about the change of religion in Malaysia

based on judicial response. It will emphasize on the cases that been decided by court

either by Syariah Court or Civil Court. It will shows the way of judges decide those cases

based on the evidence that bring up to the court. Through this study, the writer will

describe and explore the problems that existed about the change of religion among the

Malaysian.

Limitations Of The Study

This study is limited to only judicial response in Malaysia. The writer will bring up the

current cases that happened in Malaysia.

Review Of Literature

According to Ahmad Ibrahim in The Administration of Islamic Laws In Malaysia,

a person who has embraced Islam is still bound by his former personal law. Where one of

the parties has embraced Islam and the other does not, it may be said that the marriage has

broken down. It will be difficult for the parties to live together as there are many duties

and obligations on a Muslim which cannot be carried together by the couple. Moreover,

there may be problems relating to the custody, upbringing and education of the children

and the right of succession on death.

Then Mimi Kamariah Majid in her book Family Law In Malaysia, if a non-

Muslim couple converts to Islam simultaneously, they remain as husband and wife. A

joint conversion or a simultaneously conversion occurs when one party recites the

required verses before the other party completes reciting his. If a man converts to Islam,

his wife has a period of three months to follow suit. Failing to do so, their marriage will

dissolve from the moment the husband converts.

Hamid Jusoh in Kedudukan Undang-Undang Islam Dalam Perlembagaan

Malaysia : Suatu Rujukan Khas Terhadap Kes-Kes Konversi Dalam Undang-Undang

Keluarga, mentioned that usually someone convert to Islam as their faith or else

intentionally convert to it to marry the Muslim. Both of these situations has emergence a

conflict to the Malaysian Legal System.

Research Methodology

In undertaking this academic research, the writer has make use of one method of research

only which is obtaining information from library research. In order to get more

information and references, the writer do some research in a number of public and

universities libraries such as National Library, Islamic Center, USIM, UKM and UIAM.

The writer uses the secondary data collection plan such as journals, books, magazines and

websites.

CHAPTER 1

AN OVERVIEW ON CHANGE OF RELIGION IN MALAYSIA

1.1 Introduction

Religion and matters of faith play powerful roles in everyone’s lives, including the

lives of nonbelievers.1 Meanwhile, conversion is understood differently in different

religious and social contexts. What Christians call conversion or ‘metanoia’, Muslim

would probably call ‘submission’ and Buddhists would speak of ‘Going for Refuge’. In

some countries (Egypt and some other Muslim countries, and until recently, Nepal)

conversion is forbidden by law while other societies we encounter ‘rice bowl

conversion’.2

Islam require the act of submission to Allah to be made in the presence of

witnesses, but clearly more than a recitation of the shahada – There is no god but God

and Mohammed is His messenger – is envisaged. A convert is also expected to say yes to

the full tradition of Quranic teaching, hadith and Syariah.3

When it comes to change of religion, it will automatically relate with laws. In

fact, the provision is only stated that the change of religion is from or to Islam only on its

implication.4 There is no provision that mention about change of religion from other than

Islam to another religion which is not Islam.

1 Roger J.R. Levesque. 2002. Not By Faith Alone: Religion, Law And Adolescence. New York: New York University Press. p. 1592 Christopher Lamb. 1999. Religious: Contemporary Practices And Controversies. London: Cassel. p.6-73 ibid. p.84 Dr. Hassan Bin Abd Rahman. 2006. “Kesan Pertukaran Agama Dari Menurut Perspektif Perundangan Malaysia”. (Paper). Pertukaran Agama Dan Kesan Dari Perspektif Syariah & Perundangan. Kolej Universiti Islam Antarabangsa Selangor, Selangor Darul Ehsan. 15 July. p. 1.

Hence, the discussion will prolong to the effect of change of religion (from Islam

to other religion) and other religion to Islam. The act of change of religion will give

impact on one’s status such as his identity, marriage status, obligation and also subject

matter including the conflict of jurisdiction which court has the power to dispute the

matter regarding the Muslim an the non-Muslim.

The problems will arise in many dimensions. This is the effect of the Item 1 of

the state list states that Syariah Courts shall have jurisdiction only over persons professing

the religion of Islam.5 In fact, the law in Malaysia makes statutory provision for the mode

of conversion to Islam, but there is no statutory provision for conversion to any other

religion.6

With this background, change of religion according to the Malaysian law can be

seen in the aspect of the personal law such as family law and inheritance.

When someone changes his religion, it will change his religion status that

consequently relates with laws upon him. For example, if he is a Buddhists then the Law

Reform (Marriage and Divorce) Act 1976 hereinafter LRA is affect on him. Once he is a

Muslim, the LRA will no longer have an effect on on him. In addition, this matter also

effect on his obligation to others and vice versa.

Section 108 from the Administration of The Religion of Islam (State of Selangor)

Enactment 2003 stated that by moment of conversion to the religion of Islam:

A person is converted to the religion of Islam and becomes a

Muslim as soon as he finished uttering the two clauses of the

Affirmation of faith provided that the requirement of Section 107

5 Farid Sufian Shuaib. 2003. Powers And Jurisdiction Of Syariah Courts In Malaysia. Singapore: Lexis Nexis. p. 89.6 Ahmad Mohamed Ibrahim. 2000. The Administration Of Islamic Law In Malaysia. Kuala Lumpur: IKIM. p. 332

are fulfilled; and that person shall thereupon be referred to as a

muallaf.

From the same Enactment, Section 109 provided the duties and obligations of a

(muallaf) that professes as a Muslim:

From the moment of his conversion, a muallaf becomes subject to

same duties and obligations as any other Muslim

Next, Section 113 (1) and 113 (2) of the same enactment mentioned the

recognition of Muallafs as Muslim:

(1) A person who has converted to the religion of Islam and has

been registered in the Register of Muallafs shall, for the purposes

of any Federal or state law, and for all time, be treated as a Muslim

(2) A person whose conversion to the religion of Islam has been

registered under any law of any state shall, for all purposes in the

State of Selangor and for the purposes of implementing the

provisions of any law in the State of Selangor, be treated as a

Muslim

Hence, if a convert (muallaf) that was registered during his life past away and

there is no heir (also Muslim) that will bury him accordance to syarak, and then it is a

responsibility to Muslim society or religious authority to deal with it.

1.2 Right To Freedom Of Religion

The modern concept of freedom of religion is the product of the Universal

Declaration of Human Rights (UDHR) of United Nations (UN) of 1948 which are being

applied through constitutional as well as international law. Hence, the international

guarantee of freedom of religion in 2001 is 53 years old only.7

In Malaysia, conflicts and tensions that have rocked the federation have taken

various forms. Some have been ethnic in nature, while others have been based on

regional interest, religion, culture and development.8 In most cases, conflicts and tension

have been the result of interplay of several factors, instead of being based entirely on any

one factor alone.

According to Article 3(1) of the Federal Constitution mentioned that:

Islam is the religion of the Federation; but other religions may be

practised in peace and harmony in any part of the Federation

Article 3 of the Federal Constitution declares that Islam is the religion of the

federation. That provision was added to the original draft of the Reid Constitutional

Commission upon the recommendation of the Alliance Party. The recommendation from

the Alliance Party was accepted and the Article 3 has appeared with the necessary

qualification that other religions may be practised in peace and harmony in any part of the

federation9.

The infant who is below 18 years old do not had capacity to choose his or her own

religion. In the case of Teoh Eng Huat v Kadhi Pasir Mas & Anor10, it is the right of the

father and lawful guardian to decide religion, education and upbringing of infant. As the 7 Dr. Abm. Mahbubul Islam. 2002. Freedom Of Religion In Shariah: A Comparative Analysis. Kuala Lumpur: A.S Noordeen. p. 55 8 Jayum A. Jawan. 2003. Malaysian Politics & Government. Selangor: Karisma Publication. p. 1049 Wan Arfah Hamzah. 2003. An Introduction To The Malaysian Legal System. Selangor: Penerbit Fajar Bakti. p. 14310 [1990] 2 MLJ 300

law applicable to the infant at the time of conversion is the civil law, the right of religious

practice of the infant shall therefore be exercised by the guardian on her behalf until she

becomes major.11 In short, a person under 18 years old does not have right to choose his

or her own religion and in the case of non-Muslim, the parent or the guardian normally

has the choice of the minor’s religion.

Article 11 contains the right to freedom of religion which, under the provision,

consisted of (i) the right to profess (ii) to practice and (iii) to propagate one’s religion. It

is to be noted that the rights under Article 11 may be claimed by both individuals and

groups. Unlike the preceding provision, the rights under Article 11 are available to

persons, citizens and non-citizen alike. Apart from the above rights, an individual also

has the right not to be compelled to pay any tax that may be used, wholly or in part, for

the purposes of a religion other than his or her own.

Article 11(3) provides that every religious group has the right (i) to manage its

own religious affairs, (ii) to establish and maintain institutions for religious and charitable

purposes and (iii) to acquire and own property and hold and administer it in accordance

with law.

It appears that the right to religious freedom under Article 11 is subject to certain

limitations such as to the position of Islam and the Muslims as well as the legal

restrictions pertaining to public order, public health or morality. What appear to be

limitation on the basis of Islam is the prohibition of propagating religions other than Islam

to Muslim to be found in the Article 11(4). It is to be noted that the constitution does not

provide similar provision for the non-Muslim. Given the limitations to be found in

Article 11(5) this view seems viable but the end result still favours Islam which,

coincidently, is in line with the history and socio-political realities in country.

11 Tun Dato’ Seri Abdul Hamid Omar. 1996. On The Bench: Judgments Of Tun Abdul Hamid Omar. Selangor: Pelanduk Publications. p. 219

On religious pluralism, no compulsion in religion, freedom of religion, freedom to

change religion and duty of the Muslim to obey Islamic injunctions and order their lives

and to structure their social and political live according to the command of Allah SWT

there are clear verses of the Quran. They are set out below in three different

classifications according to the subject matter dealt with by them.

In the holy Quran mentioned about freedom of religion or no compulsion in

religion:

“Let there be no compulsion in religion: Truth stands out clear

from error”12

In the other verse, it is mentioned about freedom to change one’s religion and the

consequences for changing from Islam to another religion:

“And if any of you turn back from their faith and die in unbelief,

their works will bear no fruit in this life and the hereafter: They

will be companions of the fire and will abide therein”13

Then it is a Muslim’s duty to obey the injunctions of the Quran and Sunnah, the

duty to propagate Islam, and the duty to order, and the right to be enabled to order life

according to Islamic injunctions:

“O you who believe! Obey God, and obey the Messenger, and

those charged with authority among you. If you differ in any

anything among yourselves, refer it to God and His messenger, if

12 Al-Quran. Al-Baqarah 2:25613 Al-Baqarah 2:217

you do believe in God and the Last Day: That is the best and most

suitable for final determination”14

1.3 The Scenario In Malaysia

Malaysia has maintained as an excellent record of religious harmony,

understanding, respect and tolerance for each other’s religious beliefs and practices. It is

imperative to keep the momentum of this tranquil environment in order to sustain and

strengthen political and social stability, and peace and understanding for achieving all

round progress.15

Legislation has been enacted in some countries whereby conversion to Islam by

either of the spouses would not ipso facto dissolve the marriage. Rather such legislation

allows the unconverted spouse to petition for divorce.16

The case of Kalliamal vs Majlis Agama Islam Wilayah Persekutuan, Hospital

Kuala Lumpur and Government of Malaysia17 is the best example to refer the effect on

identity. In this case, M. Moorthy (Mohamad Bin Abdullah) has been buried according to

Hukum Syarak based on the decision of Syariah High Court of Kuala Lumpur. The

argument that being upheld that he (Moorthy) has been registered as a convert (muallaf)

at Majlis Agama Islam Wilayah Persekutuan. Meanwhile if there is a person that

originally a Muslim practice the way of life contrary to Islam such as worships other god

than Allah and do acting of devotion like a Buddhists, whenever he passed away the

14 Al-Nisaa 4:5915Mohammed Imam. 1994. “Freedom Of Religion Under Federal Constitution Of Malaysia- A Reappraisal”. [1994] 2 CLJ. p. 1x16Muhammad Altaf Hussain Ahangar. 1994. “Effects Of Change Of Religion On Marriage And Maintenance Obligation: Judicial Responses In Malaysia”. IIUM Law Journal. Selangor: IIUM Press. Vol. 4. No. 1 & 2. p.12717 Dr. Hassan Bin Abd Rahman. 2006. “Kesan Pertukaran Agama Dari Menurut Perspektif Perundangan Malaysia”. (Paper). Pertukaran Agama Dan Kesan Dari Perspektif Syariah & Perundangan. Kolej Universiti Islam Antarabangsa Selangor, Selangor Darul Ehsan. 15 July. p. 3.

responsibility to handle his corpse according to Islam is no longer on the Islamic

Religious authority but to his heir which is non-Muslim.

In the case of Nyonya Tahir18 that happened in Negeri Sembilan early in year 2006

has clearly show that the Syariah High Court of Seremban held that she was not a Muslim

at the time she passed away. Her family handed over her corpse according to the

Buddha’s ritual.

However, the written law that existed convokes heated discussion in ascertaining

the status of one when he or she (who is a Muslim) claims that he or she is no longer a

Muslim without the declaration from the Syariah Court which has the jurisdiction in it.

In the case of Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Ors19, the

appellant which is a Muslim had renounced Islam and embraced Christianity. Thereupon

the appellant applied to change her Muslim name in her NRIC into Lina Joy. After the

second application, she was successful to change her name and proceeded to efface the

word “Islam” in her NRIC. However, the Appeal Court dismissed the appeal.

The case of Soon Singh a/l Bikar Singh v Pertubuhan Kebajikan Islam Malaysia

(PERKIM) Kedah & Anor20, the appellant who was brought up as a Sikh has converted to

Islam without the knowledge and consent of his widowed mother while he was still a

minor. Upon reaching 21 years of age, he went through a baptism ceremony into the Sikh

faith, thereby renouncing Islam. He then executed a deed poll in which he declared

unequivocally that he was a Sikh. Subsequently, he filed an originating summons in the

Kuala Lumpur High Court seeking a declaration that he was no longer a Muslim. Counsel

for the Jabatan Agama Islam Kedah raised a preliminary objection against the application

contending that the High Court had no jurisdiction as the matter came under the

18 Kes No. 05100-099-0021-200619 [2005] 4 CLJ 66620 [1999] 1 MLJ 489

jurisdiction of the syariah courts. The learned High Court judge upheld the objection and

dismissed the application. The appellant appealed.

In the case of Dalip Kaur v Pegawai Polis Daerah, Balai Polis Daerah Bukit

Mertajam & Anor21, this appeal arose from the dismissal by the High Court Penang on 16

October 1991 of an application by the appellant for a declaration that her son, Gurdev

Singh s/o Guruvak Singh, was at the time of his death on 3 October 1991 not a Muslim

and had renounced the Islamic faith and also for the consequential declaration that she

was entitled to claim the body of the deceased from the district hospital mortuary, Bukit

Mertajam.

1.4 The Problems Arose Due To Change Of Religion

Whenever someone has converted to Islam, it will warrant their immediate

governance by the rules of Islamic law. The rules of Islamic law will be consisting of

every sphere of life such as marriage, worship, obligatory alms (zakat) and so on.

Succession is concerned with the transfer of property on death, particularly

through disposition by will and succession on intestacy. Although accounts of law

traditionally deal with wills before intestacy is relatively is relatively compact and far less

extensive than the law relating to wills.22

On the death of any person issues arise both in relation to the administration of his

or her estate and relation to succession, that is to say, to the distribution of the deceased’s

property. In regard to the administration of the estate of the deceased, debts will have to

be dealt with and matters of maintenance in relation to potential beneficiaries may arise.23

21 [1992]1 MLJ 722 Andrew Barkowski. 2002. Textbook On Succession. New York: Oxford University Press. 2nd Edition. p.1 23 RH Hickling. 1995. Conflicts Of Laws In Malaysia. Kuala Lumpur: Butterworth. p. 198

This can be seen in the case of Majlis Agama Islam Wilayah Persekutuan lwn Lim Ee

Seng & satu lagi.24

CHAPTER 2

JUDICIAL RESPONSE: EFFECTS OF CONVERSION ON MARRIAGE

24 [2000] 2 CLJ 597

2.1 Introduction

Issues pertaining to religion are always sensitive among the Malaysian public,

what more when there involves a Muslim abdicate his religion.25 In a multi-religious

society like Malaysia, conversion from one religion to another is not a new phenomenon.

Since Islam is the religion of the Federation, conversion to Islam is actually

propagated and encouraged. However, conversion in itself does not terminate a marriage

which was contracted under the non-Muslim law but one party must apply to the court to

have it terminated. This is where Section 51 of the LRA plays an important role.26

It is generally assumed that according to Sunni School of law, a Muslim man may

marry a Muslim woman or a kitabiyah. A kitabiyah is defined as a woman who believes

in a heavenly or revealed religion with a kitab or a divine book that has come down to the

followers of that religion.

The validity of this rule has been challenge in the Syariah Court in Singapore in

the case of Abdul Razak v Lisia Binti Mandaaie alias Maria Menado.27 Unfortunately,

the judgment in that case was a consent judgment and therefore the question at issue was

not argued. It appeared that in that case the wife was at the time of the marriage a

25 Suwaid Bin Tapah. 1996. “Pemelukan Islam: Perbincangan Daripada Perspektif Undang-Undang Di Malaysia”. Jurnal Syariah. Kuala Lumpur: Fakulti Syariah Akademi Islam Universiti Malaya. Vol.. 4. No. 1. January. p. 10726 Noor Aziah Hj Mohd Awal. 1999. “Section 51 Of The Law Reform (Marriage And Divorce) Act 1976: An Overview”. IKIM Law Journal. Kuala Lumpur: IKIM. Vol. 3. No. 2. Jul-Dec. p.12727 [1965] 1 MLJ XVi

Christian but that her ancestors were not originally Christians but were converted to

Christianity after the coming of the prophet of Islam.

Islamic law allows marriage with the women of ahl al-kitab (people of the book)

but not vice versa.28 In the states of Malaya and Singapore however it would appear that

a marriage between a Muslim and a non-Muslim cannot be solemnised or registered

either under the Muslim law or under the civil law. The various states enactments dealing

with the solemnization and registration of Muslim marriages only deal with marriages

between Muslims.29 It is undoubtedly true that the marriage with a non-Muslim is

frowned upon in Muslim law.

2.2 Effect of conversion on marital status by the Islamic Law in Malaysia

Section 46, Islamic Family Law (Federal Territories) Act 1984 provided that:

(1) The renunciation of Islam by either party to a marriage or his or her

conversion to a faith other than Islam shall not by itself operate to

dissolve the marriage unless and until so confirmed by the court.

(2) The conversion to Islam by either party to a non-Muslim marriage

shall not by itself operate to dissolve the marriage unless and until

so confirmed by the court.

Although Syariah Court has the power to dissolve this marriage, it cannot give an

order to the husband such as order to give maintenance, muta’ah, hadhdanah and harta

sepencarian (jointly acquired property). This is because the Syariah Court has no

jurisdiction to the non-Muslim.

28 Abdur Rahman I. Doi. 1989. Shariah: The Islamic Law. Kuala Lumpur: A.S. Noordeen. p. 46029 Ahmad Ibrahim. 1990. “The Need To Amend Section 51 Of The Law Reform (Marriage And Divorce) Act 1976”. Malayan Law Journal. Kuala Lumpur: xxx. 29 June 1990. p. 1viii

With this provision although the Syariah Court have the power to dissolve the

marriage, it (Syariah Court) cannot give an order upon the apostate husband such as

maintenance, muta’ah and hadhanah. This is because the Syariah Court do not have

jurisdiction on the non-Muslim.

In the view of fiqh, the scholars are unanimous about this matter. According to

Mazhab Syafiee, Hanbali and Maliki, if the husband or the wife apostate before the

consummating, the marriage can be nullified and fasakh. This also happen whenever

both of the party altogether apostate. The second situation is if they apostate after

consummating, the marriage is fasakh with legal retirement (iddah). If they repented and

show the action to become a Muslim during the iddah period, their marriage will be

continuously. However, if they failed to believe in Islam until to the end of iddah period

they must be separate. In case if there is a sexual intercourse during the iddah period,

they will not convict to zina which the execution is hudud but they will receive takzir by

the reason of syubhat.

According to Mazhab Hanafi, if it is confirmed about the act of apostate, both of

the party must be break up. Besides that according to Imam Abu Hanifah and Imam Abu

Yusuf, fasakh is directly happen without waiting the judgment from the judge.

In the leading Shafiee textbook, the Minhaj at-Talibin of Imam Nawawi, it is

stated to the effect that:

“A non-Muslim of whatever religion who is converted to Islam

while married to a woman whose religion is founded upon some

holy scripture keeps her as his wife; but if she is an idolatress or

fire-worshipper, and is not converted with him, separation takes

place immediately ipso facto, where the marriage has not yet been

followed by cohabitation. Otherwise the continuation of the

marriage depends upon whether the woman embraces the faith

before the end of her period of legal retirement (iddah). If, before

the expire of this period the wife’s conversion has not taken place,

the marriage is considered to have been dissolved from the

husband’s conversion; and the same rule is observed if it is the wife

who is converted, while the husband remains in his former faith.

Where on the other hand both parties embrace the faith at the same

time, the marriage remains valid”

The conclusion is the laws that related with the procedure to go outward from

Islam is still unfixed and not in detail. Hence, the person who desires to apostate simply

cannot change his or her religion. Commonly in Malaysia, the person who wants to

change his religion to other religion will not be approved by the law and consequently he

is still bound to the Syariah Court.

2.3 Effect of conversion on marital status under LRA

There are cases in Malaysia that show non-Muslim couples that convert to Islam.

According to Islamic law, if one party converts to Islam, the wife is given three months to

follow her husband converting to Islam. Otherwise, their marriage will be dissolved. But

in Malaysia, the person that converts to Islam does not have the right to dissolve his

marriage only if the other party makes a petition to the Civil Court.

Section 4 in the Law Reform (Marriage and Divorce) Act 1976 (hereinafter LRA)

provided that:

i) Nothing in this Act shall affect the validity of any marriage

solemnised under any law, religion, custom or usage prior to the

appointed date.

ii) Such marriage, if valid under the law, religion, custom or usage

under which it was solemnised, shall be deemed to be registered

under this Act.

iii) Every such marriage, unless void under the law, religion, custom or

usage under which it was solemnised, shall continue until

dissolved-

(a) by death by one of the parties

(b) by order of a court of competent jurisdiction; or

(c) by a decree of nullity made by a court of competent

jurisdiction.

2.4 Decided cases

2.4.1 Pedley v Majlis Agama Islam Pulau Pinang and Anor30

Section 51(1) of Law Reform (Marriage and Divorce) Act 1976 mentioned that:

Where one party to a marriage has converted to Islam, the other

party who has not so converted may petition for divorce:

Provided that no petition under this section shall be presented

before the expiration of the period of three months from the date of

the conversion.

In the case of Pedley v Majlis Agama Islam Pulau Pinang and Anor, the facts were

that the plaintiff, a Roman Catholic has married a Roman Catholic lady according to

Catholic rites on the 12th February 1966. On 12 January 1987 the wife embraced the

religion of Islam without the plaintiff’s knowledge and assumes a Muslim name.

30 [1990] 2 MLJ 307

It appeared that on the 12th April 1987 the Chief Kadi of Penang wrote to the

plaintiff to the effect that his wife has embraced Islam and therefore he was advised also

to follow her and embrace Islam within 90 days. The letter stated that f he not do so, the

relationship between him and his wife as husband and wife would be terminated

according to Islamic Law. The husband applied for a declaration that the conversion of

his wife had not determined the marriage.

The learned judge of the High Court held that the assertion of the Chief Kadi did

not and will not affect the plaintiff’s legal position in the eyes of his own personal laws

and civil laws of the country. Under the civil law, a non-Muslim marriage is not

dissolved upon one of the parties converting to Islam. It only provides a ground for the

other party, who has not so converted, to petition of divorce.

The effect of a declaration by a Kadi under Section 46(2) of the Islamic Family

Law (Federal Territories) Act, 1984 or its equivalent in other states has been considered

in some cases in Malaysia.

The power of the court to make a declaratory judgment is discretionary. The court

will not make a declaratory judgment when the question raised is purely academic. In

fact, the court should not be required ‘to answer academic questions’.

The judge find that the declaration request for is purely academic. The plaintiff is

not going to benefit in any way from the declaration. He is not asking for any

consequential relief. He is only asking for a declaration of a mere legal right.

In the view of the judge, the assertion of the said Kadi Besar did not and will not

affect the plaintiff’s legal position in the eyes of his own personal laws and the civil laws

of the country. He will therefore not benefit in any way by the declaration prayed or

request for.

Wan Adnan J therefore dismissed the application.

2.4.2 U Viswalingam v S Viswalingam31

The position of kitabiyah under the Islamic Law in Malaysia was referred to in the

English case of U Viswalingam v S Viswalingam. The facts in that case were that the

husband had embraced Islam but the wife was a Christian originally from Ceylon.

The mufti of the Federal Territory gave an opinion that the marriage between the

parties was dissolved under the Islamic Law as the wife was not a Kitabiyah and she had

not agreed to follow the husband in embracing Islam. The opinion was accepted in the

High Court and the Court of Appeal as laying done correctly the law relating to such a

case in Malaysia.

The position under the Islamic Law in Malaysia is that if the husband or wife

embraces the Islamic faith and the other party does not follow him or her during the

period of iddah, the marriage automatically comes to an end. In the Islamic Law (Federal

Territories) Act, 1984, it is stated however in Section 46(2) as follows:

“The conversion to Islam by either party to a non-Muslim marriage

shall not by itself operate to dissolve the marriage unless and until

so confirmed by the court”

In 1977 the wife filed her petition seeking a decree of dissolution of marriage

from her husband the appellant, on the grounds of his unreasonable behaviour. It was

alleged on behalf of the husband that the marriage had already ceased to exist because he

had embraced the Muslim faith.

31 [1980] 1 MLJ 10

At the trial a fatwa from the Mufti of the Federal Territory of Kuala Lumpur was

accepted which stated that the marriage had ceased to subsist by reason of the husband’s

conversion to Islam and the failure of the wife to follow suit. The learned trial judge held

that although by Malaysian Law the marriage had ceased to exist on the date of the

husband’s conversion to Islam.

The court in England was not bound to recognise the happenings in Malaysia as

having already put an end to the marriage and, in the exercise of its residual discretion,

the court should grant a decree of divorce on the ground of the husband’s unreasonable

behaviour and make an award of a lump sum to the wife.

Three questions arise on this answer. First, was the marriage brought to an end by

the husband’s conversion to Islam, according to the law of the Federal Territory? Second,

if so, is this court bound to accept that the marriage has come to an end, or is there what

has been called a “residual or remaining” discretion to decline recognition? Thirdly, if

there is such discretion should it be exercised in favour of the husband or the wife?

Under the Shafii rules a member of the Anglican Church is not kitabiyah,

apparently because it is held that the Anglican Church was not in existence at the time of

the birth of the prophet Mohammed. Dr Yaacob (the lawyer for the husband) supported

his argument by reference to a document, called a Fatwa, which was issued by the Mufti,

the highest authority in Malaysia on such problems. Having accepted Dr Yaacob’s

evidence on these matters, the learned judge found as a fact that the marriage had

automatically come to an end on the husband’s conversion to Islam. For the purposes of

this appeal we must accept this as proof of the relevant law.

In this case the material date for determining the question of domicile, in the view

of the judge, is the date of the husband’s conversion to Islam. 13 August 1976 at which

time the learned judge found and it is not disputed, that the wife retained her domicile of

choice in Malaysia, or, more precisely, in the Federal Territory. She was still intending to

return to Kuala Lumpur when the boys’ education in England had been completed.

Omrold LJ subsequently examined some features in the facts of the case which he

thought would result in serious injustice to the wife if a change in her status were to be

recognized by the court. Amongst the features were the secrecy which the husband has

kept his conversion, and the unsatisfactory circumstances in which the fatwa was

obtained by the husband. The appeal dismissed with costs.

2.4.3 Ng Siew Pian v Abd Wahid Bin Abu Hassan, Kadi Daerah Bukit Mertajam

& Satu lagi32

In the case of Ng Siew Pian v Abd Wahid Bin Abu Hassan, Kadi Daerah Bukit

Mertajam & Satu lagi, the plaintiff and the second defendant who were Buddhists were

married under the Civil Marriage Ordinance, 1952. Subsequently the husband, the

second defendant embraced Islam and he applied to the Qadi’s Court to annul the

marriage on the ground that the plaintiff, his wife, had refused to embrace Islam with him.

The first defendant, the Qadi, gave notice to the plaintiff, to attend at the court of

the Qadi. Subsequently the first defendant in the absence of the plaintiff annulled the

marriage on the ground that the plaintiff had refused to follow the second defendant in

embracing Islam.

The defendant husband had converted to Islam and the wife remained a Buddhist.

The husband applied to the Syariah Court in Bukit Mertajam for a decree of dissolution of

32 [1993] 1 CLJ 391

marriage on the ground that he had converted to Islam. The court, in the absence of the

plaintiff wife, dissolved the marriage.

The plaintiff applied, inter alia, for a declaration that the Syariah Court in Bukit

Mertajam had no jurisdiction to make the order of dissolution of marriage. Abdul Hamid

Mohamed J decided that the relevant Syariah Court did not have jurisdiction to entertain

the application of the defendant husband when he requested for dissolution of his

marriage because his wife was not a Muslim and the relevant Pulau Pinang Enactment

requires both parties before the court to be Muslims.

When discussing whether the High Court had jurisdiction to do so, his Lordship

referred to Section 51 and noted that Section 51 only allows the non-converting party to

petition for a divorce. The converting party cannot seek a decree of divorce on the

ground of his or her conversion.

In a situation like in this case, there is a lacuna in the law. The learned judge

suggested that the High Court should be empowered to dissolve such a marriage since the

marriage was a non-Muslim one and the Syariah Court does not have jurisdiction to

dissolve such a marriage. An amendment to Section 51 is therefore urgently needed.

2.4.4 Public Prosecutor V David John White Alias Abdul Rahman33

A person who enters into a marriage relationship with a woman according to

monogamous rites (the practice of being married to or having a sexual relationship with

only one person at a time) takes upon himself all the obligations springing from a

monogamous relationship and acquires by law the status of “husband” in a monogamous

marriage and he cannot, whatever his religion may be, during the subsistence of that

33 [1940] MLJ 214

monogamous marriage marry or go through a legally recognised form of marriage with

another woman.

Held, applying the principle above pronounced clearly that the first marriage

being a monogamous one, the accused had committed the offence of bigamy.

On 10 January 1936, his wife being alive, the accused and Miss Webb were

converted to Mohammedanism by Haji Mohamed, the Kadhi of Seremban, and thereupon

the accused and Miss Webb, having been named Abdul Rahman and Aisha respectively,

were married according to Mohammedan law by the Kathi in the presence of witnesses.

The accused in his statement from the dock admits the facts.

Section 494 of the Penal Code punishes the offence, known as bigamy and is in these

terms:—

“Whoever, having a husband or wife living, marries in any case in

which such marriage is void/not valid by reason of its taking place

during the life of such husband or wife, shall be punished with

imprisonment of either description for a term which may extend to

seven years, shall also be liable to fine.

Exception. — This section does not extend to any person whose

marriage, with such husband or wife, has been declared void by a

Court of competent jurisdiction, nor to any person who contracts a

marriage during the life of a former husband or wife, if such

husband or wife, at the time of the subsequent marriage, shall have

been continually absent from such person for the space of seven

years, and shall not have been beard of by such person as being

alive within that time, provided the person contracting such

subsequent marriage shall, before such marriage takes place,

inform the person with whom such marriage is contracted, of the

real state of facts so far as the same are within his or her

knowledge.”

Horne J convicted the accused with the offence of bigamy (the offence of

marrying someone while already married to another person).

2.4.5 Tey Siew Choo v Teo Eng Hua34

The issue in this case are whether marriage dissolved upon Tey Siew Choo

(hereinafter the petitioner) converted to Islam. Secondly, whether the marriage still

subsisted and could the petitioner resort to civil law for redress or remedy.

The court held that under the Syariah law, the petitioner’s marriage immediately

dissolves upon her conversion because she has become subject to Muslim personal and

religious laws. Notwithstanding the marriage between the petitioner and the respondent

remains unaffected and still subsists. Hence, it requires a judicial pronouncement to end

the marriage.

Generally, it is accepted that when only one of the parties of a non-Muslim couple

embraces Islam, in the eyes of Syariah law, not only is that earlier marriage avoided

against the converted person but the unconverted party loses all holds over the former

unless within three months he or she follows suit.

Sections 3(3), 4 and 51(1) of the LRA and the authorities make it clear that the

unconverted spouse may petition for a divorce. Section 3(3) mentioned that this Act shall

34 [1999] 6 CLJ

not apply to Muslim or to any person who is married under Islamic law. Section 4 stated

that subsisting valid marriages deemed to be registered under this Act and dissoluble only

under this act.

Regardless of the change in the petitioner’s religious and social status, which by

itself would make it just and reasonable to pronounce a decree of dissolution, the High

Court is statutorily required to have regard to one of the proofs of breakdown under

Section 54 of LRA.

In this case, the petitioner, apart from admitting her conversion also adverted to

the statutory “fact” of Section 54(1) (d) as the fact alleged as causing or leading to the

breakdown of the marriage. The evidence showed, however, that the respondent had not

bothered to reply her affidavit pertaining to this matter. Legally he was therefore deemed

to accept that fact.

This is also meant that without that contest the petitioner had, prima facie, proved

that the marriage had irretrievably broken down. In the circumstances, it was just and

reasonable to dissolve the civil marriage. The petition allowed and marriage pronounce

dissolved.

2.4.6 Shamala Sathiyaseelan v Dr Jeyaganesh C Mogarajah & Anor35

This was an application by the plaintiff Hindu wife sought, inter alia, for a

declaration that the conversion of her two children to Islam by the defendant husband

without her consent was null and void. The marriage between the parties has been

performed according to Hindu rites at a temple in Alor Setar, Kedah and the marriage has

been registered under the Law Reform (Marriage and Divorce) Act 1976.35 [2004] 2 CLJ

The children of the marriage were Hindus at the time of birth. The husband then

converted to Islam and subsequently converted the children (who were minor) to Islam

without the consent of the wife. At the outset of this hearing, the husband raised two

preliminary objections where were only one was relevance herein, ie, whether this court,

being a civil court, had a jurisdiction to hear this application.

The court held that the use of the singular word “parent” in both Article 12(4) of

the Federal Constitution and Section 95(b) of the Administration of Islamic Law (Federal

Terrritories) Act 1993 (‘Act 505’) renders the consent of a single parent enough to

validate the conversion of a minor to Islam. Section 5 of the Guardianship of Infant Act

1961 (‘Act 351’) on equality of parental rights did not apply to the husband by virtue of

Section 1(3) of the same as he was now a Muslim.

The husband was the natural father of the two children. He was also a muallaf or

a person converted to Islam. The wife never questioned the validity of the husband’s

conversion. Article 12(4) of the Federal Constitution read in conjunction with Section

95(b) of Act 505 gave the husband as a natural parent and Muslim father the capacity to

convert the two children to Islam.

The two temporary statutory Certificates of Conversion issued in respect of the

two children, although temporary, were conclusive proof of the facts stated therein by

virtue of Section 90 of Act 505. Section 91 of Act 505 provides that a person whose

conversion to Islam has been registered in the Register of Muallafs, shall for the purposes

of any Federal or State Law, and for all time, be treated as a Muslim. Section 92 of Act

505 is a written law made for the Syariah Court for the Federal Territories to determine

whether a non-registered person is a muallaf.

In fact, the children in the present case were already temporarily registered as

muallaf. The wife, however, was not a Muslim. Therefore, she could not take advantage

of Section 92 and the Syariah Court had no jurisdiction to hear her. It was not for this

court to legislate and confer jurisdiction to the Civil Court but for the parliament to

provide the remedy.

The only way open to the wife was to seek the help of Majlis Agama Islam

Wilayah Persekutuan since the two children were now considered as “saudara baru” or

“muallaf”. It followed that by Article 121(1A) of the Federal Constitution, the Syariah

Court was the qualified forum to determine the status of the two children.

CHAPTER 3

JUDICIAL RESPONSE: EFFECTS OF CONVERSION ON MAINTENANCE

OBLIGATION

3.1 Introduction

Maintenance is the right of one’s wife and children to get food, clothing, a

residence and some other essential services and medicine even if the wife happens to be a

rich lady.36 Where both spouses are above the age of puberty, it is the duty of the

husband.

In some western countries nowadays the husband supply his wife and children

with food, clothes and lodging on a scale commensurate with the social position of the

partners and in accordance with the customs and habits of the society in which they live.

3.2 Right to maintenance

3.2.1 Concept of maintenance of wives

In maintenance cases, there are some circumstances when the claimant, usually

the wife, may not able to produce evidence. This is due to the fact that support is one of

the infernal affairs in the marriage. While generally, women in Malaysia are more

reserved and prefer not to disclose their marital problems to other people. As a

consequence, some of them, who are genuine claimants, fail in their trials in upholding

their rights.37

36Abdur Rahman I. Dor. Shariah: The Islamic Law. Kuala Lumpur: A.S. Noordeen. p. 204 37 Zaleha Kamaruddin. 2004. Islamic Family Law: New Challenges In The 21st Century. Kuala Lumpur: IIUM. Vol. 2. p. 217

Maintenance is an ordained duty of the husband upon his wife. Most of the great

Muslim scholars have not made a stringent or exhaustive definition of support. However,

it or nafaqah is described and explained by them in the light of Quranic verses, Sunnah as

well as Ijma’. The Muslim scholars also unanimously agreed that it is an obligation on

each husband to provide maintenance to his wife unless the latter is disobedient to her

husband (nusyuz).

In the holy Quran Allah says:

“Let the man of means spend according to his means: and the men

whose resources are restricted, let him spend according to what

God has given him. God puts no burden on any person beyond

what He has given him”38

This verse indicates that Allah has not burdened His servants by prescribing

something which we could not afford. Accordingly, every man has to spend according to

his status and wealth. This also includes the payment of maintenance where the husband

pays based on his resources. This is in line with the Hadith of the Prophet (s.a.w) to the

effect:

Aishah told that Hind, a daughter of Utbah said “O Prophet! Abu

Sufian does not give me and my son enough maintenance except

what I take from him without his knowledge.” The prophet replied,

“Take what is enough for you and your son to the extent which is

recognized by law”

This hadith is a clear injunction that the responsibility to pay maintenance is

obligatory on the husband. This can be inferred by the permission of Prophet (s.a.w) to

38 Al-Quran. Al-Talaq 65: 7

34

Hind to take the wealth of her husband even without his knowledge. However, can this

act can be considered as stealing, or does this hadith allow us to steal the money in the

case of emergency? The writer opines that the above hadith is only to acknowledge that

if her husband fails to pay maintenance to her, a wife can make a complaint to the

authority to preserve her right.

In another verse Allah says:

“The husband shall bear the cost of their food and clothing on

equitable term”39

This verse also prescribes that it is the husband who bears maintenance of the wife

and the children. The Prophet (s.a.w) also has said and narrated by Jabir Bin Abdullah, to

the effect that:

“Fear Allah regarding women. Verily your married them with

trust of Allah and made their private parts lawful with the word of

Allah. You have got rights over them that they entertain nobody to

your bed, which you dislike. If they do this, give them beating

without causing injury. They have got right over you in respect of

their food and clothing according to means agreed” Sahih Al-

Bukhari

The above mentioned hadith indicates that the responsibility of the husband to pay

maintenance to his wife arises from their marital bond. Based on this hadith, when the

wife surrenders herself to her husband, she has the right to get her support.

39 Al-Quran. Al-Baqarah 2:233

35

3.2.2 Maintenance of children

Under the law, the father is obliged to pay for the maintenance of his children.

The law provides for the court to take into account the financial means of the father.

Unfortunately, in practice, it is often very difficult to produce the required evidence to

prove the financial means of the father. The law also allows the maintenance order to be

varied due to change in circumstances.

For example, if the children are going for further studies or need special care for

medical reasons. It is also provided that the court may order deductions for maintenance

to be made from the man’s salary. Such deductions are possible if he is a salaried

employee, especially in government service. If he is working in a private company, the

employer’s co-operation could facilitate enforcement of the maintenance order. Problems

of enforcement often arise when the man works for his family-owned business or is self-

employed.

Many rules on issues of custody and guardianship are not stipulated directly by

the Quran, but are derived through Islamic scholarly processes. Thus, contemporary

Muslim jurists need to be apprehensive about modifying these rules and formulating

alternatives that are relevant to modern-day situation.

3.4 Decided cases

3.4.1 Letchumi v Ramadason40

In this case the petitioner had obtained a divorce from the respondent on the

ground of desertion or neglect. Then she claimed for maintenance but the husband

becoming Muslim. The issue here is whether order for maintenance can be made against

him. For this purpose, the court refers to Section 3 and 77 of Law Reform (Marriage and

40 [1984] 1 MLJ 143

36

Divorce) Act 1976.

The Judicial Commissioner, who made an order that the respondent pay the

petitioner which was his former wife the sum of RM200 per month as maintenance for

herself. The respondent subsequently applied to set aside the maintenance order on the

ground that he was a Muslim and according to Islamic law the petitioner has no right to

claim maintenance because she has not converted into Islam with the husband within the

iddah period.

The court held that Section 3(3) of the Law Reform (Marriage and Divorce) Act

1976, precludes the operation of the provisions of Section 77 to a Muslim and as the

respondent is now a Muslim they cannot be made to apply to him. The petitioner

obtained her divorce from the respondent on the ground of desertion. The record shows

that this order has never been complied with.

In Vohrah J view, Section 51(2) would only apply if the divorce had been granted

to the petitioner under Section 51(1) on the ground of the respondent’s conversion to

Islam whereupon the Court upon dissolving the marriage could make provision for the

petitioner. In this situation the petitioner obtained her divorce not on the ground of

conversion but on the ground of desertion.

Then, in the view of the judge, Section 3(3) precludes the operation of the

provisions of Section 77 to a Muslim and as the respondent is now a Muslim I do not

think they can be apply to him. It would have been different if the divorce had in fact

been granted under Section 51 on the ground of the respondent’s conversion to Islam.

In the premises Vohrah J set aside the order of the Judicial Commissioner as

37

prayed by the respondent. Application allowed

3.4.2 Tan Sung Mooi v Too Miew Kim41

The petitioner and respondent were married in 1967 under Chinese customary

rights and cohabited until 1982 when they decided to live apart. In year 1988, the

petitioner left the matrimonial home and in 1989, she filed a divorce petition under

Section 53 of LRA.

In 1991, the High Court granted a decree nisi to be made absolute after three

months. Pending that, the petitioner filed an application against the respondent under

Section 76 and 77 of the LRA for an order of division of matrimonial assets and for

maintenance. However, the respondent raised the issue that the High Court had no

jurisdiction over him with respect to the ancillary relief arising from the divorce because

of his conversion to Islam.

The issue here is whether the High Court entitled to exercise its continuing

jurisdiction to grant ancillary relief, in the view of the fact that the High Court had

dissolve the marriage? The judges confirmed that the High Court has jurisdiction to hear

the case notwithstanding the respondent’s conversion to Islam after the divorce.

The judges have two main reasons why the High Court has jurisdiction to

continue to hear the application. Firstly, the High Court would have jurisdiction to hear

and determine the ancillary proceeding despite the fact that the respondent had converted

to Islam after the divorce but before the hearing of the ancillary application. In short, the

court have jurisdiction to hear the application because the ancillary application has not

been heard yet.

41 [1994] 3 MLJ 117

38

Secondly, under Section 3 of LRA makes reference to Section 51. It states:

… but nothing herein shall be construed to prevent a court before

which a petition for divorce has been made under Section 51 from

granting a decree of divorce on petition of one party to a marriage

where the other party has converted to Islam…

It is clearly envisaged a situation that where one party to a non-Muslim marriage

converted to Islam, the other party who has not converted may petition to the High Court

for divorce and seek ancillary relief. In other words, upon dissolving the marriage, the

court may make provision for the wife or husband for the support, care and custody of the

children of the marriage. In addition, the court may attach any condition to the decree of

dissolution.

From the wording of Section 51(2), the legislature clearly intended to provide

ancillary relief for non-Muslim spouses and the children of the marriage as a result of one

party’s conversion to Islam. In the context of legislative intent of Section 3 of LRA and

the overall purpose of the act (LRA), the respondent’s legal obligations under a non-

Muslim marriage cannot surely be extinguished or avoided by his conversion to Islam.

As a result, the judges remitted the case to the High Court for final disposal of the

ancillary application.

3.4.3 Eeswari Visuvalingam v Government of Malaysia42

The cases have shown how unfairly the law can operate. It will be seen in this

42 [1990] 1 MLJ 86

39

case that although the appellant could petition for divorce, she did not do so. This left the

husband, who had converted to Islam, without any remedies under the civil law.

Although the parties had presumably lived apart for over six years, the husband could not

petition for a divorce under the civil law. He had no right to do so under Section 5(1) of

the LRA as he was regarded as the party at fault, and he could not do so under Section 54

of the act, as, being a Muslim. The act did not otherwise apply to him.

He could have gone to the Syariah Court, but the Syariah Court has no jurisdiction

as one of the parties was not a Muslim. All that the Syariah Court could do was to

confirm that the marriage has been dissolved. This would not have put an end to the

marriage as Section 4(3) of LRA provides that the marriage shall continue until dissolved

either by order of a Court of competent jurisdiction or by a decree of nullity made by a

court of competent jurisdiction. Court is defined to mean the High Court or a judge

thereof or where the judge of the session court has jurisdiction, the session court or a

judge of that court.

The person who has become a Muslim thereof punished not only by giving his

spouse a right to petition for divorce against him but by depriving him of the right to put

an end to his marriage, which has clearly broken down.

In this case the appellant sought a declaration that she was a dependant as defined

in s 4 of the Pensions Adjustment (Amendment) Act 1983 and also a declaration that she

was entitled to a derivative pension under s 15 of the Pensions Act 1980.

The High Court held that the appellant was not entitled to the derivative pension.

The appellant appealed. Appellant came within the definition of ‘widow’ being the

surviving spouse of a deceased officer whose marriage is recognized in Malaysia as a

valid marriage under any written law, religion, custom or usage.

40

The respondent contended that the appellant was not a ‘widow’ under the pension

laws as claimed because she did not convert to Islam within the three months of her

husband’s conversion.

The issue before the High Court was, whether the non-conversion of the plaintiff

from her religion to that of Islam within three months of the conversion to Islam of her

spouse dissolves the marriage between the plaintiff and her husband and thereafter

disentitles her from being a dependant.

The word ‘dependant’ is defined in s 4 of the Pensions Adjustment Act 1980 as

follows:

‘dependant’ means a widow, widower, child, mother or father of a

deceased officer.

The word ‘widow’ is defined in the Pensions Regulations 1980 as follows:

‘widow’ or ‘widower’ means the surviving spouse of a deceased

officer whose marriage is recognized in Malaysia as a valid

marriage under any written law, religion, custom or usage.

The answer to the question posed is therefore straightforward. There is no

evidence that the marriage has been dissolved. The appellant is therefore suing as a

widow as defined under the pension laws.

In this case, the law applicable to the appellant had always been her own personal

laws and the civil laws of the country. Since the appellant’s marriage remained valid

41

under the civil law at the time of the death of Visuvalingam s/o Ponniah, she is therefore a

dependant under the pension laws and is entitled to a derivative pension.

The Pensions Act 1980 and the 1980 Regulations are civil laws of general

application and if a person is entitled under the Act, that person is entitled, regardless of

whether he is a Muslim or a non-Muslim. The court allowed the appeal and ordered that

the appellant be entitled to the declarations sought.

3.4.4 Koh Yian Geok v Zulkifli Tan Bin Abdullah43

The petitioner and the respondent were married on 21 July 1980 and have a

daughter who is now 19 years old. The petitioner has filed a petition seeking dissolution

of the marriage on the ground of the respondent’s conversion to Islam of 27 December

1993.

The petitioner wife sought a divorce on the ground of the respondent husband’s

conversion to Islam. She also sought various ancillary orders pertaining to assets

acquired during the marriage. These applications were under Section 51 and Section 76

of the LRA, respectively.

The court held that the petitioner has clearly adduced sufficient documentary

evidence to show that she had been working as a masseur from 1983 until February 1995.

On the other hand, the respondent has failed to prove that he has been working and

receiving income and that being so, the petitioner’s contention that the respondent was

unemployed since 1983 is accepted. Since 1983, the respondent has no income and did

not make any contribution towards living expenses for the family or provide any form of

the maintenance to the petitioner and their daughter.

43 [1995] 2 AMR 1525

42

The matrimonial property (house) was acquired by the sole effort of the petitioner.

There were a number of receipts and document has been produced by the petitioner to

show that the respondent never made any contribution towards the purchase of the said

house nor towards the monthly installments.

In the sight of Mohd Ghazali Bin Mohd Yusof J, the respondent has failed to

prove that he has not been working and receiving income and that being so, the judge

accept the petitioner’s contention that the respondent was unemployed since 1983. In

addition, in the view of the judge the respondent did not seem to be very concerned with

the upbringing of their daughter.

In conclusion, the respondent still bound with his previous marriage. The

conversion to Islam does not liberate him upon the maintenance of the wife and their

daughter.

3.4.5 Majlis Agama Islam Wilayah Persekutuan lwn Lim Ee Seng & satu lagi44

The matter that been argued in this case is the property of a man namely Chew

Toong Lee @ Ali Cheow Bin Abdullah that in sum of RM 265,315.71 (provisional).

Chew has converted to Islam and been registered as a Muslim on 23 January 1973 and

passed away on 28 July 1988.

During his life as a Muslim, he (Chew) neither returns to his origin religion nor to

another religion. The first defendant was the Chew’s wife which solemnised under the

civil law. From that marriage, they have two daughters which are the second defendant

and other. “Surat Kuasa Mentadbir” (LA) has been issued on 27 August 1992 to the

defendants.

44 [2000] 2 CLJ 597

43

The issue in this case is whether the defendants have beneficial interest on the

Chew’s heredity property.

Distribution Act 1958 No. 1/1958 Section 2 stated that:

Nothing in this Act shall apply to the estate of person professing

the Muslim religion or shall affect any rules of Muslim law as

varied by local custom in respect of the distribution of the estate of

any such person …

According to the Re Timah Binti Abdullah [1941] MLJ 51, Gordon Smith J at that time

said that:

The Shafii school or the interpretation of Muhammadan Law is

applicable in Malaya and both according to Tyabij’s Principles of

Muhammadan Law (2nd Edition) page 834 paragraph 4 and

Howard’s Translation of the Minhaj et Talibin, paragraph 9 page

253, an infidel is excluded from and cannot succeed to the estate

of a Muhammadan.

The court held that the principle of Re Timah has been used in this case. The

beneficial interest does not exist to the defendants. Consequently, they do not have rights

to succeed the estate.

Based on the principles been used and Section 34 of the Probate and

Administration Act 1959, it is fitting to the court to annulled the mentioned letter that has

been issued to the defendants.

CHAPTER 4

44

CHANGE OF RELIGION: RECENT CASES IN MALAYSIA

4.1 Introduction

The phenomenon of change of religion will continuously from time to time. The

globalisation has made human to expose with each other in many aspects of live. They

attempt to know better each part of the culture and religion for their own purposes. The

world without boundary will bring those human to communicate without limit.

4.2 The Reported Cases

4.2.1 Rayappan45

The case of Rayappan Anthony has caused a stir within Malaysia and has been

taken up by the international press. Rayappan died of complications from diabetes at

Kuala Lumpur Hospital on 29 November 2006. Rayappan lived at Shah Alam in

Selangor state.

Instead of having the body given to his family, the hospital had refused to hand

over the body until there was clear indication of his religious status. Rayappan is an

ethnic Indian who had been a Christian. However, in 1990 he had converted to Islam on

January 20 1990 in order to marry an Indian Muslim woman. He had changed his name

to Muhammad Rayappan Abdullah.

45Zainul rijal Abu Bakar. 2006. “Cara Baik Selesa Status Agama: Kes Nyonya Tahir Contoh Penentuan Dilaksana Tanpa Ketegangan”. Berita Harian. 20 December.

45

The body of van driver Rayappan Anthony, who died on November 29, has

remained in a hospital morgue while his family was locked in a legal dispute with Islamic

authorities over who should perform the burial.

Islamic authorities had argued that Rayappan, converted to Islam in 1990, and that

they should be given the body for an Islamic burial. But Rayappan's family maintained he

renounced Islam and returned to Roman Catholicism in 1999 without informing Islamic

authorities. The Selangor Islamic Religious Department refused to accept that Rayappan's

conversion back to Christianity was valid as such decisions can only be made by an

Islamic (Syariah) court.

The lawyer of Rayappan’s family, A. Sivenesan said that the late Rayappan

decided to return to his family and applied to renounce the faith after about eight years of

being a Muslim. He claimed that Rayappan had made a sworn declaration before a

Commissioner for Oath to renounce Islam. On 10 May 1999, Rayappan had applied to

the National Registration Department (NRD), and had been issued with a new

identification card or Mykad. This carried his original name which is Rayappan

Anthony.46

The Selangor Islamic Religious Department (MAIS) announced that it had

dropped its claim, according to its chairman, Mohamad Adzib Mohamad Isa. He said that

there was additional evidence to show that Rayappan was not a Muslim. He announced

that they have two sets of facts. Some stating that he was not a Muslim and some stating

that he was. But the existing facts were more towards him being a non-Muslim.

The Selangor Islamic Religious Council said Thursday it has decided not to claim

Rayappan's body for burial after consulting religious experts, according to national news

agency Bernama.

46n.a. n.d. http://www.westernresistance.com/blog/archieves/003453.html

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The Shah Alam Syariah Court adjudicated in a closed session upon the issue of

whether or not Rayappan was to be buried as a Muslim or a Christian. Syariah High Court

judge, Abu Zaky Mohammad ruled that the body should be buried according to Muslim

tradition. He ruled that on Monday (4th December 2006), the Selangor Islamic Religious

Department could claim the body of Rayappan from the Kuala Lumpur hospital.47

Council chairman Mohamed Adzib Mohamad Isa was quoted by Bernama as

saying there was "overwhelming" evidence showing Rayappan was not a Muslim. "With

this, we withdrew the case from the court today and will not make any other claim," he

said. "I hope the matter is solved and we don't think the people will view us negatively

because we make the decision based on the existing facts and not emotion."48

The prime minister, Abdullah Ahmad Badawi announced on Wednesday (6th

December 2006) that the cabinet had discussed the situation. He said that the cabinet had

ordered that the case should be handed over to the Attorney General, as it was important

for the case to be resolved.49 The status of Rayappan must be identified first to settle this

controversy case. The corpse will be return to the party that is entitled.

The Attorney General, Tan Sri Abdul Ghani Patail, said that all parties must

respect each others' religions. He said: "Let us sit down and discuss the problem.

Solutions can only be found if all parties sit down and look at the problem in a fair and

equitable manner. Everyone must respect each other's religion and try to solve it amicably

without immediately taking any stand. I will be meeting with several Islamic religious

bodies including the Majlis Agama Islam Selangor (Selangor Religious Affairs

Department or MAIS),'' he said. The Attorney General noted that he could only give

advice. He had no legal power to influence the decisions of a Syariah court.

4.2.2 Kaliammal50

47Adrian Morgan. 8 December 2006. Malaysia: No Muslim Burial For Christian. http://www.speroforum.com/site/article.asp?id=696648n.a. n.d. “Malaysia’s Islamic Authority Drops Claim Over Man’s Body, Ends Religious Row”. http://au.health.yahoo.com/061207/40/p/107pi.html.49 Kamaruddin Mape. 2006. Buletin Utama. (TV). 6 December. Kuala Lumpur: TV3.

ii

The case comes nearly a year after a national debate over the body of commando

Maniam Moorthy, a former Hindu who was buried by Islamic authorities after the Islamic

court ruled he converted to Islam before his death. Moorthy had never told his family of

the conversion, and the High Court said it had no jurisdiction to hear his wife's appeal in

the case.

In year 2005, a case involving a Hindu Lt. Corporal Maniam Moorthy made

headlines around the world. His wife's claims that he had never converted to Islam were

ignored by Islamic authorities, who had Moorthy buried as a Muslim on28 December

2005. His widow Kaliammal, had an appeal to the High Court unheeded, as the judge

claimed that under Article 121 (1A), he had no power to contradict decisions of the

Islamic courts.

4.2.3 Muhammad Shafi Saravanan Abdullah51

In landmark ruling, the Court of Appeal also held that a Muslim could make an

application to the Syariah Court to convert his or her underage children without the

permission of the non-Muslim spouse.52

Subshini and Saravanan (Shafi) were married on 26 July 2001 and have two sons

namely Dharvin Joshua and Sharvind. Shafi and his son Muhammad Shazrul Dharvin

Muhammad Shafi (Dharvin Joshua) embraced Islam on 18 May 2006.

The following month, Shafi commenced proceedings at the Syariah Court to

dissolve his marriage and obtain custody of Shazrul. In August, Subshini filed a petition

50 Dr. Hassan Bin Abd Rahman. 2006. “Kesan Pertukaran Agama Dari Menurut Perspektif Perundangan Malaysia”. (Paper). Pertukaran Agama Dan Kesan Dari Perspektif Syariah & Perundangan. Kolej Universiti Islam Antarabangsa Selangor, Selangor Darul Ehsan. 15 July. p. 3. 51 V. Anbalagan. 2007. “Non-Muslim Spouse Must Seek Remedy In Syariah Court”. New Straits Times. 14 March.52 ibid

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in the High Court to annul her marriage, seeking custody of her sons, a RM 500 monthly

allowance and another RM 1000 for looking after the children.

On 11th September, she obtained an ex-parte injunction from the High Court to

prevent her husband, his lawyer or his agents from going to the Syariah Court. However,

Shafi challenged the court order as he had converted to Islam along with Shazrul.

On 25th September 2006, the High Court gave the green light to Shafi, a

businessman to have his civil marriage dissolved at the Syariah Court and to obtain

custody of his 3 years old son.

The ruling was made after the court allowed him to set aside a 11 th September

2006 order obtained by his wife Subshini to stop him from seeking legal remedy in the

Syariah Court. But Shafi could not implement the order he sought from the High Court

as judicial commissioner Datuk Aziah Ali granted Subshini a stay order pending her

appeal to the Court of Appeal.

4.2.4 Lina Joy v Majlis Agama Islam Wilayah Persekutuan & Ors53

The appellant, a Muslim at birth, had renounced Islam and embraced Christianity.

Thereupon the appellant applied, successfully after a second application, to have her

Muslim name in her NRIC changed to Lina Joy. Having had a Christian name, the

appellant then proceeded to apply to have the word “Islam” in her NRIC, which denotes

her religion, effaced. In her statutory declaration, the appellant affirmed, as reasons for

the application to delete the said word “Islam”, that she had never professed the religion

of Islam, that she had embraced Christianity and that she intended to marry a Christian.

This case has brought to the Federal Court which the last destination for her to

bring her case. If she lose in this stage (Federal Court), she no longer can appeal.

4.3 Conclusion And Recommendation:

53 [2005] 4 CLJ 666

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Chapter 1 provides an overview of change of religion in Malaysia. It concludes

the right to freedom of religion which every person has the right to profess and practise

his religion. Besides that, the religion of a person under the age of eighteen years shall be

decided by his parent or guardian. The change of religion also gives an effect on one’s

personal law. The change of religion by a non-Muslim does not dissolve his or her

marriage until it been declared by the court that governs them. Hence, they are still

bound by his or her previous civil marriage act.

Chapter 2 and 3 focuses on the effects of Change of religion on the marriage and

maintenance obligation to a person that convert to Islam. These two chapters are based

on the decided cases by the court. The decisions by the court are based on the arguments

of the parties, evidence, provisions, enactments, acts and by looking the previous cases.

Chapter 4 discusses the recent cases and recommendations regards to this matter.

The cases that included in this chapter are the best example to illustrate the phenomenon

of change of religion in Malaysia. The matters pertaining to the change of religion has

become a big issue because it relates with the faith itself besides the consequence to the

marriage and also to the maintenance obligation.

In a multi-religious society like ours, conversion from one religion to another is a

very sensitive issue. Sensitivity must not be used as an excuse not to act. Failure to act

either by the courts or the legislature may cause grave injustices to all parties concerned

particularly to women and children of the marriage.54

Due to diversity in the components of the population in Malaysia and India, both

countries experience interpersonal conflicting legal systems in cases of conversion of one

54 Noor Aziah Hj Mohd Awal. 1999. “Section 51 Of The Law Reform (Marriage And Divorce) Act 1976: An Overview”. IKIM Law Journal. Kuala Lumpur: IKIM. Vol. 3. No. 2. Jul-Dec. p.141

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spouse in marriage since pre-independence and the situation continues even after

independence.55

It can be seen that marriages between Muslims and non-Muslims (non-kitabiyahs)

are prohibited under the Islamic law. In Islam, difference of religion could not be

tolerated. Based on this principle, if both of the parties to a marriage convert to the

Islamic faith, the existing marriage is considered valid. On the other hand, if one party to

marriage converts and the other remains a non-Muslim, non-consummation of the

marriage would cause an automatic dissolution of marriage according to the Syafiee’s and

the Hanbali’s. However, the view of Hanafi’s school of law is preferred as the

dissolution of marriage would not be automatic in order to give time to the non-Muslim

spouse to convert.

The jurists however, agree that the dissolution of marriage shall only happen after

the period of iddah in cases where the other spouse does not convert upon conversion

after consummation of marriage. It is clear that the rejection of faith by the non-Muslim

spouse according to all schools of law. The divorce shall preferably be fasakh as the

separation takes place without the pronouncement of talak. On top of that, the application

of fasakh would not reduce the number of talak upon re-solemnisation of another

marriage after the conversion of the other spouse.56

Dr Zaleha gave her opinion regarding to the matter related with this matter, which

is to establish a Family Court which cover the civil law and also Islamic law.57 This is a

need to be an alternative for the case that failed to be solved either by Syariah Court or

Civil Court.

55 Nuraisyah Chua Abdullah. 2004. Conversion To Islam – Effect On Status Of Marriages And Ancillary Reliefs. Selangor: International Law Book Services. p. 29.56 ibid. p. 1157 N. a.. 21 July. “Hak Sama Atasi Konflik Pertukaran Agama”. http://www.jksm.gov.my

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In addition, she mentioned that Civil Court is not the only remedy to solve this

critical matter. But, one system of justice must be waived which can be accepted in

general to harmonies the Islamic law and Civil law.

In all of these cases, there are interests of newly converted Muslims to be

safeguarded by the law of the religion they choose to profess. On the other hand, the

interests of the non-Muslim parties involved should also be considered. Perhaps statutory

provisions should be considered to deal with the above conflict of interests58.

Ahmad Ibrahim in his article suggested that a better approach to the problem

would have been to regard the conversion of one of the parties to Islam as evidence that

the marriage has broken down and to give both the parties to the marriage the right to

petition for divorce.59

In addition, Ahmad Ibrahim suggested that Section 51(1) of the LRA should be

amended in order to secure justice for both parties. Section 51(1) mentioned that:

“Where one party to a marriage has converted to Islam, the other party who has

not so converted may petition for divorce”

Ahmad Ibrahim suggested that the phrase “the other party” to be modify to “either

party”. It will be read as:

“Where one party to a marriage has converted to Islam, either party to the

marriage may petition for divorce”

58 Farid Sufian Shuaib, 2003, Powers and Jurisdiction of Syariah Courts in Malaysia, Malayan Law Journal Sdn. Bhd., Kuala Lumpur, page 8859 Ahmad Ibrahim. 1990. “The Need To Amend Section 51 Of The Law Reform (Marriage And Divorce) Act 1976”. Malayan Law Journal. Kuala Lumpur: xxx. 29 June 1990. p. 1viii

vii

It is an urgent need for legislative intervention whereby Islamic law relating to

conversion and its effect on marriage and matrimonial obligation is rehabilitated. Till a

comprehensive legislation restoring Islamic law relating to conversion is enacted, it is

hereby suggest an enactment on the lines of Indonesian law which provides that divorce

may be obtained on the grounds of disturbance of harmonies in the household on account

of change of religion by a spouse.60

60 Muhammad Altaf Hussain Ahangar. 1994. “Effects Of Change Of Religion On Marriage And Maintenance Obligation: Judicial Responses In Malaysia”. IIUM Law Journal. Selangor: IIUM Press. Vol. 4. No. 1 & 2. p.143

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