Press Conference on
Section 51 of the Law Reform Act
22 August 2003

Women's Aid Organisation (WAO ) recognizes the right of every citizen to choose his or her faith. However, while upholding the freedom of religious beliefs, a conversion of an individual does impact the immediate family and it is critical that the conversion does not have negative and discriminatory effects.

In a marriage when a conversion takes place, the non converting spouse is generally the wife and the converted spouse, the husband tends to have a more advantaged position as he is positioned in a culture that confers more privileges to men. The non converting spouse who is usually the wife, is placed in a disadvantaged position whereby she may face several forms of discrimination:

• Upon conversion of her husband she is faced with limited choices, either she converts or she may begin divorce proceedings.
  
  
• She is deprived the right to decide on the religion of her children as some converted Muslim fathers have chosen to convert their children without consultation nor agreement with the mother who is an equal guardian by law.
  
  
• She is deprived the right to have a say in the custody of her children as the Syariah Court has predominantly given custody to the converted husband without taking into consideration the mother's rights.
  
  
• She is deprived the right to have a say in the dissolution of her marriage as divorce proceedings can be initiated in the Syariah Court without her attendance or participation.
  
  
• She is subject to the jurisdiction of a judicial system that has no jurisdiction on Non - Muslims.

These and other forms of disparity and discrimination are faced by the non converting spouse, and it is thus urgent for the judicial system to recognize this injustice and rectify it.

Furthermore Malaysia has ratified the Convention on the Elimination on all Forms of Discrimination Against Women in 1995 and has further a constitutional provision whereby Article 8 ( 2) of the Federal Constituent clearly states that:

"Except as expressly authorized by this Constitution, there shall be no discrimination against citizens on the ground only of religion, race, descent, gender or place of birth, in any law or in the appointment to any office or employment under a public authority or in the administration…."

WAO social workers are presently providing counselling and support in a case (SHAMALA A/P SATHIYASEELAN VS DR. JEYAGANESH A/L C. MOGARAJAH [S8 - 24 - 3586 - 2002 & S8 - 24 - 297 - 2003). Our client Shamala a/p Sathiyaseelan, the non converting wife is facing issues of double jurisdiction.

In summary, the facts of the case are:

The couple contracted a civil marriage in November 1998 in a Hindu temple. In 2002, the husband chose to convert and has changed his name to Muhammad Ridzwan bin Mogarajah.

On 31 December 2002, Shamala, the non converting wife initiated a custody order in the High Court seeking an order for custody, care and control of their 2 children aged 2 and 4 years. This custody hearing was first heard in the High Court on 16 January 2003 and was adjourned to 25 February 2003, on the request of the husband as he wanted more time to appoint solicitors. Meanwhile the husband was able to obtain an exparte Hadanah (custody ) Order from Mahkamah Tinggi Syariah Shah Alam on 28 January 2003. Furthermore the Syariah Court also issued a warrant of arrest against Shamala for non attendance at the Syariah Court.

Shamala continued with her custody order in the High Court and the High Court gave her an Interim Access Order on 17 April 2003, allowing her to have de facto custody of the children with the husband had limited access to their children.

On 17 April 2003, the court gave an Interim Access order as follows:-

1. that the Defendant (husband) be given access to the children from 1.00 pm to 2.00 PM on Saturday to 1.00 PM to 2.00 PM on Sunday.
   
   
2. That the Defendant (husband) is prohibited from taking the children out of the Alor Setar District.
   
   
3. That the Defendant (husband) pays a sum of RM250.00 as maintenance for each child.
   
   
4. The execution of the warrant of arrest issued by the Syariah Court is stayed pending the disposal of the second suit ie S8-24-297-2003 which matter the court fixed for hearing on 17 June 2003.
   (now 2 September 2003)

Parallel to this on 8 May 2003, the Mahkamah Tinggi Syariah Selangor gave a Hadanah Order to the husband. The husband used the Civil court Order which allowed him access to the children and relied on the Syariah Court order to keep the children. The husband took away took the children out of Alor Setar on 24 May 2003. The children are now with the husband and the wife has reasonable access to the children. Furthermore, the husband has also initiated a divorce proceedings in the Mahkamah Rendah Syariah Daerah Hulu Langat

The wife was summoned to the Syariah Court for both Hadanah and divorce proceedings. However it is Shamala's position that as a person of another faith, a Hindu in this case, she is not subject to the jurisdiction of a Syariah Court.

At the next High Court hearing on 2 September 2003 the High Court will hear all the three applications:

1. The main application for the declaration that the Syariah Court Order is not binding on a non-Muslim.
   
   
2. The Plaintiff's application to refer a constitutional question to the Federal Court.
   
   
3. The plaintiff's (Shamala) application to the cite the defendant ( the husband) for contempt for failing to comply with the Interim access Order dated 17 April 2003.

WAO has initiated a watching brief for the Case of SHAMALA A/P SATHIYASEELAN VS DR. JEYAGANESH A/L C. MOGARAJAH [S8 - 24 - 3586 - 2002 & S8 - 24 - 297 - 2003) and we have engaged the services of . En. Haris Bin Mohamed Ibrahim.

Encik Haris has agreed to conduct a watching brief on behalf of 4 women's groups namely Women's Aid Organisation, (WAO), All Women's Action Society (AWAM), Women's Center for Change, Penang (WCC) and Sisters In Islam (SIS) to monitor the proceedings and intervene when necessary to safeguard the following principles:

1. Equal guardianship of both the parents in custody issues
2. The right of the parents', in this case, the mother's, interest to be represented in custody issues.
3. If a marriage is solemnized under civil law, then its dissolution and matters pertaining to it should be settled first in the civil courts to avoid conflict of jurisdictions.
4. The right of both parents to have a say in the issue of converting their children
   

Ivy Josiah
Executive Director

For further information, contact us.