“Can a Non Muslim Mother Have a Right of Guardianship Over Her Under Age Muslim Children?"

This article won the third prize in AIKOLFEST Article Writing Competition which was held during AIKOLFEST. The writer of this article was RAIHAN MUSTAFA KAMAL and NORAZWAA SAZALI. Congratulation!!

“ Mohd Ridzuan, 40, or Patmanathan a/l Krishnan, 40, a Muslim convert who used to be a Hindu, was reported to have converted his children -- Tevi Darsiny, 12, Karan Dinesh, 11, and Prasana Diksa, 1 -- to Islam on April 12 and applied for custody at the Syariah Court although their mother is still a Hindu.”

Living in Malaysia, a multiracial and multi religions country, contributes as one of the factor which leads to the dispute between a converted Muslim parent and Non-Muslim spouse on a custody of their child/children upon a conversion. The cases like Nur Aishah Suk, Shamala Sathiyaseelan and Subashini once have attracted the attention of the whole nation of Malaysia on this matter. Latest, the case of Mohd Ridwan or Patmanathan a/l Krishnan has been reported on April 23 2009.

Among a normal question arises is, “Can a Non-Muslim Spouse have a Right of Guardianship over his/her under age Muslim Children”? To be specific, “Can a Non-Muslim Mother have a right of guardianship over her under age Muslim Children?”

To begin, the library research is the methodology used to prepare this article. The research showed that before determining the Right of Guardianship belongs to whom, 3 factors need to be well thought-out. They are the provisions of laws, the best interest of the child and the principle of guardianship.

In order to answer this question as I mentioned above, we must construe first what is the meaning of Right of Guardianship, what is the other terms related to it and what is the meaning of under age children. Then, we have to identify what is the right of guardianship. Lastly we will discuss on the factors which are taken into concern to determine whether a Non-Muslim Mother can have a Right of Guardianship over her under age Muslim Children or not.

2.0 Definitions

First of all, ‘Guardian’ is a term which is multifarious meaning. In the context of custody and guardianship today, ‘Guardian’ means one who has powers over a child’s upbringing, care, discipline and religion. ‘Custody’ refers to the state of having certain rights over a child, which rights may include care and control of the child . Minor or infant may be both refer as ‘infant’ or ‘child’. The meaning of under age children subject to law can be referred to The Child Act 2001 which defines a “child” as a person under the age of 18. Inter Alia the Age of Majority Act 1971 also emphasizes on the age of majority as at 18 years old. The Act itself acquire a person who is under 18 years old should have the parent custody which including the protection and care . These laws are applicable for Muslims and Non-Muslims.

Bare in mind, when we argue about guardianship, it must also include the custody. Custody is a part of guardianship. But guardianship does not consist of custody wholly. The Right of Guardianship includes the right of child’s upbringing, care and discipline and right to determine the child’s religion . To simplify, it is appropriate for us to state that guardianship includes child’s upbringing, care, discipline, religion and further more custody. As far as this article is concerned, to the best of my knowledge, I believe it is appropriate for me to emphasize more on the Right of Guardianship in the context of determining the religion of the children.

Now, we move forward to the next point that is really crucial for us to discuss. Who has the merit to have the Right of Guardianship of the under age Muslim children? Whether it is the converted Father or the Non-Muslim Mother?

There are 3 essential factors in discussing who can have the Right of Guardianship. There are the provisions of laws, the best interest of the children and the principle of guardianship.

3.0 The Provisions of Laws

Under both laws; Civil law and Shariah Law, a same modus operandi need to be adhered in determining who can have the Right of Guardianship. This principle has been introduced in Law Reform (Marriage & Reform) Act, (1976) for the Non-Muslim couple marriage per se and Islamic Family Law (Federal Territories) Act, (1984) for Muslim couple marriage per se. Both laws necessitate the best interest of the child as the utmost paramount consideration. However, both laws are silence, when it involves spouses whom included Muslim party and Non-Muslim party. As consequence, numerous cases which implicated this issue cannot be settled and thus created more tensions and un-gratification on the part of the losing party.

In Islam, a converted parent has a Right of Guardianship in changing a religion of their child. Allah s.w.t mentioned in Al-Qur’an, (Surah At-Thuur 52:21):-

21. And those who believe and whose families follow them in Faith, to them shall We join their families. Nor shall We derive them (of the fruit) of anything of their works, (yet) is each individual in pledge for his deeds.

According to Islamic School of Thoughts, Jumhur Ulama’ (Al-Hanafiyyah, Al-Shafi’iyyah and Al-Hanabilah) in a view that a child of a converted parent must follow the religion of Islam regardless the converted parent is the father or the mother.

In Malaysia, two important provisions which are significant to this matter are Article 12 (4) of Malaysian Federal Constitution and Article 12 (3) of Malaysian Federal Constitution. According to Article 12 (4) of Malaysian Federal Constitution, “For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian”. Article 12 (3) of Malaysian Federal Constitution states that “No person shall be required to receive instruction in or take part in any ceremony or act of worship of a religion other than his own.”. It is to be noted that, these two provisions must be read together with Article 3 of Malaysia Federal Constitution. From here, it seems that the weight is more on the converted Muslim parent. A Muslim parent has Right of Guardianship to determine the child religious education which also includes the religion of their child in this context and since Islam is the religion of Federation.

However, the weight will not be always on the Muslim Father’s side, whereby the court will consider fact of the case and some circumstances occurred. The skeptical idea among the non-Muslims Malaysians is that once a father converted to Islam, the child/children will follow them as in Civil Law, which applies a principle of ‘a child must follow the religion of his/her father’. It is totally vise versa. We may refer to the case of Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals (2008) , where the Right of Guardianship vested on the father’s hand and in Nur Aishah Suk@ Sukwinder (1999) , where the Right of Guardianship vested in the hand of the converted mother.

4.0 The best interest of the child

The best interest of the child is very utmost fundamental factor in deciding who has the Right of Guardianship. The best interest of the child includes welfare of the child as to protect the child themselves. It must be taken into consideration in deciding, who is the one who deserve to have a Right of Guardianship over their under age Muslim children. Tuan Haji Zainul Rijal suggested that to settled this dispute, the best interest of the child should be taken into consideration. He referred to Kitab Sayid Sabiq, “ The right of the person over whom the custody exercised is stronger than the right of the person who has the custody “ .

Both Civil Laws and Shariah Laws unanimously agreed that the best interest of a child should be taken into consideration in deciding who has the Right of Guardianship. For Civil Law, we may refer to Section 88 of Law Reform (Marriage and Divorce) Act, (1976) and Article 16 (1) (d) of Convention on the Elimination of All Forms of Discrimination against Women. These 2 provisions remark the interest of the children shall be paramount in nature in consideration to the parent’s right and parental responsibilities.

In Islam, as far as a converted Muslim father is concern, he can have the Right of Guardianship in determining the child’s religion. He can preach them together and embrace Islam. This acts are consider as the best interest of the child since it is for the protection of the children. This is because the principle of “al-shaghir yatba’u khayr al-abawayn dinan” which means “the child follows the best religion of his parent” do applied . Since Islam is deemed to be the best religion, therefore, the child follows the religion of his/her Muslim parent (either mother or father) and it is considered as the best interest of the child itself.

Wan Azhar Wan Ahmad again in his article has highlighted that :-

If only one parent crosses over to Islam, either father of mother, their underage child becomes Muslim too. Between 2 parents, the position of the one who embraces Islam is stronger compared to the non converting spouse. Therefore, the child follows the religion of the stronger party.

To support this, there are many evidences to show Islam is considered to the best religion of the child. One of them can be seen in the hadith which involved Rafi’ b. Sanan:-

Rafi’ b. Sanan narrated a tradition to me. He said that he accepted the faith of Islam but his wife refused to accept it. She went to the presence of the Prophet and said, “My daughter’s feeding by me has been stopped (by the father)”. Rafi’ said, “She is my daughter”. The Prophet asked Rafi’ to take his seat at one side and the woman on the other side and directed them to make the daughter sit between them. Thereafter he asked both of them to call their daughter to them; (call being made) the daughter (seemed) inclined towards her mother. Thereupon, the Prophet prayed, “May God guide her (the child). Then she got inclined towards her father. Consequently Rafi’ picked up his daughter.

5.0 Principle of Guardianship

Principle of guardianship always been referred as a principle of parental responsibilities. This principle requires the equality in guardianship between parents in the marriage. However the laws are silence when it involves the Converted Muslim Parent and Non-Muslim Parent.

According to Memorandum: Safeguard Rights Of Wives And Children Upon Conversion Of Husbands To Islam (2007) sent by Joint Action Group for Gender Equality (JAG), they claimed that by allowing the converted parent to convert his child’s religion to Islam will infringed another’s parent right over the child.

They also contended that Section 5 Guardianship of Infants Act, (1961) promotes the equality of parental rights and this law shall be applicable to the converted Muslim by virtue of Section 1 (3) of the same Act. These provisions may connote that the Act is applicable to Muslim as long the Act has been adopted by law made by the Legislature of that State and as long it does not contrary to Islam. Hence, once a parent converted to Islam, the converted parent should have the equal parental responsibilities with the other non-Muslim parent. However, the Guardianship of Infants Act, (1961) is not applicable to Muslim by virtue of Section 1 (3) of the same Act. If the exception in Section 1 (3) of Guardianship of Infants Act, (1961) has been contented by JAG group, unfortunately, there is none of the State Legislatures who adopt Guardianship of Infants Act, (1961) in the State Law which involve Muslim family law indirectly. Therefore, Muslim party is not subject to this Act. Therefore, both parents can have right of Guardianship over their under age children.

This is also supported by Article 16 (1) of Convention on the Elimination of All Forms of Discrimination against Women, (1979) which promotes the equality right for both parent over their child and no discrimination on women on this matters.

Furthermore, Article 8 of Malaysian Federal Constitution states “All persons are equal before the law and entitled to the equal protection of the law”. This article promotes equality between men and women in all aspects including marriage and education. That’s why the equal right between both parents in right of guardianship in determining the child’s religion is very significant.

Then, Article 12 (4) of Malaysian Federal Constitution states “For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or guardian”. However, the word parent in Article 12 (4) of Malaysia Federal Constitution may be read collectively (both parent consent needed) or non-collectively as in Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals (2008). A parent has right to determine the child’s religion’s education which include the child’s religion. No consent needed to be obtained by another parent as regard to the child’s religion.

According to Mohd Haniff Katri Abdullah (2008), a member of Sarawanan’s legal counsel; “..it is wrong to assume that upon conversion to Islam, the husband no longer has any legal obligations towards his family……the obligation is still exist. Only now, they must be based on Islamic principles.”

6.0 Conclusion

In conclusion, to answer the question, there is no direct answer as whether a Converted Muslim Father or Non-Muslim Mother can have a Right of Guardianship over their under age Muslim Children. There are three points to be well-thought first before deciding who can have such right regardless of the religion of the spouse. The paramount consideration should be taken in solving this matter. If the weight is more on the Non-Muslim Mother’s side, it will be the merit for the mother to have the Right of Guardianship over her under age Muslim children and also vise versa.

This article suggests tolerance as the key to settle this problem. An amicable tolerance should be inserted in a negotiation made between parents by holding Islam as a yard-stick. The discussion among the Muslim scholars and other religions should be made in order to settle this issue. The discussion conducted should achieve to an ended-solution by not neglecting the major principles in Islam as Islam is the religion of Federation. The legislation also shall play their role in making a clear-cut provision on this issue to end a non-settled dispute by law. This matter is not as gigantic as it was publicized by media. It can be settled provided it has been done in a proper way.