Indira Gandhi’s case, and other cases which dealt with identical problems remind us of the adage: pounds of pounds of law but not an ounce of justice. True, all the judgments in the cases where non-Muslim parents, largely mothers, have been denied any legal remedy reveal immense erudition in expounding the law; however, they do not help to solve the problems the non-Muslim parents are facing. Why should a biological mother, or for that matter a biological father be deprived of the company of their children in the name of religion?
For once, could all those who are concerned with the custody issues involving newly converted Muslims and non-Muslims realize that this is purely a family matter; religion is being brought in as a result of the former non-Muslim spouse who had converted Islam to bolster his or her position. We cannot ignore the suspicion that is gaining currency, and that is, by denying the affected spouse civil judicial remedy but advising him or her to go to Shariah Court is in fact a coercion on the non-converted spouse to convert and seek the remedy in Shariah Court.
While it is correct that the State orientated Shariah Courts and the religious departments have the right to deal with Islamic laws regulating the personal affairs of Muslims within their respective States the power to regulate the personal laws of non-Muslim vests with the Federal Government, therefore, in so far as the marriage and dissolution of non-Muslims are concerned, the relevant law is the Law Reform (Marriage and Divorce) Act 1976 which is a Federal legislation. Therefore, it will be prudent to look at the dissolution of the non-Islamic marriage within the compass of the aforesaid Law Reform Act 1976.
It is not a herculean task to amend section 51 of the Law Reform (Marriage and Divorce) Act 1976, and make it plain that the spouse converting to Islam shall not do anything to change the religion of the children of the marriage under the age of eighteen unilaterally until the issue of custody has been determined by the High Court. In addition, Article 121(1A) could also be amended to remove the current ambiguity in it and state clearly that where the matter has the question of Islamic ingredient and the parties are Muslims, then, the High Court shall have no jurisdiction.
What we are looking for is a solution, not the prolongation of an unrewarding conflict which traumatises every Malaysian. The clash of jurisdiction is judge-made and it can be averted provided mature common sense prevails and not treat the matter as a challenge to Islam. What we need is a humanitarian approach.
