Memorandum
Safeguard Rights Of Wives
And Children Upon Conversion
Of Husbands To Islam
5 February 2007

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This memorandum is submitted by and on behalf of the Joint Action Group for Gender Equality (JAG), which comprises six Malaysian women’s rights groups, namely Women's Aid Organisation (WAO), Women's Centre for Change Penang (WCC), Sisters in Islam (SIS), All Women's Action Society (AWAM), Women's Development Collective (WDC) and Malaysian Trades Union Congress (MTUC) - Women's Committee. 

We call for a review of the relevant laws relating to conversions of non-Muslim spouses to Islam, based on the principles of justice, equality and non-discrimination, in order to protect the rights of non-converting spouses and children.

JAG’s vision is to uphold the fundamental principle of equality between men and women in every sphere, which we believe encompasses not only formal but also substantive equality, i.e. the equality of opportunity and of results.  Such equality must inevitably include equality of access to laws and of just results under those laws for both men and women.  We are concerned that due to inherent or systemic gender inequality and ambiguity in our laws, whether in their substance, structures (interpretation and application) or in the cultural matrix in which these laws exist, women experience discrimination at various levels.

The women’s groups in Malaysia have long been receiving requests for assistance from non-Muslim women whose spouses have converted, or are planning to convert, to Islam.  These women have grave concerns about the impact such a conversion will have on their rights and expectations, which are based on the civil law marriage they entered into, and what options they have once the conversion has occurred.  Their fears centre on issues of divorce, division of assets, maintenance, distribution and inheritance. Custody and guardianship of children, and the ability to have an equal say in determining their religion and upbringing, are also matters of great concern.

These apprehensions are well-founded as the law governing such situations is either unclear, inadequate, or has been interpreted inaccurately or unjustly, leaving such women with little hope that their rights will be protected.  The plight of Shamala a/p Sathiyaseelan,[1] who unsuccessfully contested her husband’s unilateral conversion of their children to Islam, and the dilemmas of others like her, reinforces these fears.  Shamala’s case demonstrates that Malaysia’s legal system can leave someone with no court in which she can seek a legal remedy, even while acknowledging that she had been wronged.[2]

JAG is especially concerned about the following specific rights:

1. The right of married non-Muslim women to continue to rely on the rights and obligations contained in a civil law marriage agreement when their spouses convert to Islam;
2. The right to have all issues relating to a civil law marriage settled according to civil laws and adjudicated only in civil courts;
3. The right to petition for divorce on the basis that conversion to Islam has led to a breakdown of her marriage;
4. Upon divorce, the right to receive maintenance, for herself and her children, as provided for in the civil laws;
5. The equal right, as a parent, to decide on matters relating to her children’s upbringing;
6. The continued right to inherit from a family member who converts to Islam; and
7. The right to be informed of her spouse’s conversion to Islam.

JAG fully supports each individual’s absolute right to profess the religion of her/his choice.  However, we are concerned where the exercise of that right impinges upon the rights of that individual’s family and where such an impingement has a retrogressive effect, leaving family members with fewer rights and thus worse off than before.  We urge that special provision be made to take account of non-converting family members and to protect their rights under the civil laws.

For example, the law must be reformed, where necessary, to ensure that when an individual embraces Islam, the convert’s spouse (or ex-spouse), children and other family members’ rights and entitlements under civil laws remain unchanged.  Regardless of such conversion, all issues arising out of the marriage must be settled according to civil law, and not state Islamic law enactments,[3] since the marriage was solemnised or registered under civil law.  Furthermore, legislation must be adopted to specify that only the civil courts have jurisdiction to hear any matter arising out of such a marriage, including jurisdiction over the converting spouse.

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[1] Shamala Sathiyaseelan v. Dr Jeyaganesh C Mogarajah & Anor [2004] 2 CLJ 416, and Shamala Sathiyaseelan v. Dr Jeyaganesh C Mogarajah [2004] 1 CLJ 505.

[2] The High Court stated that one parent could not convert a child without the consent of the other parent, and that any such unilateral conversion would not be binding on the non-consenting parent. However, the court still declined to review her application to nullify the children’s conversion.

[3]We note that “Islamic law” is in fact fiqh, i.e. human interpretations of the Syariah.  It has constantly changed over centuries and has never been permanent.  The fact that each Muslim nation has a different law demonstrates that these laws are not sacred and immutable revealed Syariah, but are fiqh as interpreted and codified by humans.  To reflect this, we use the term “state Islamic law enactments” in this memorandum instead of “Syariah law”.

by Women's Aid Organisation on behalf of Joint Action Group for Gender Equality (JAG)

Related Resources:

• FAQ (Frequently Asked Questions): Status, Rights and Responsibilities: What Happens When A Spouse Converts To Islam
• Press Statement: Protect Rights of Wives and Children Upon Conversion of Husbands to Islam