Civil Marriage – Conversion of children’s religion to Islam – Non-fulfilment of statutory requirements – Whether civil court has jurisdiction to review decision by Registrar of Muallaf – Whether certificates of conversion to Islam can be issued – Whether consent of both parents needed – Administration of the Religion of Islam (Perak) Enactment 2004, sections 96 and 106 – Federal Constitution, article 12(4)
Indira Gandhi Mutho v Pengarah Jabatan Agama Islam Perak & Ors
[Civil Appeal No.01(f)-6-03/2017(W)], Federal Court
The appellant, Indira Gandhi a/p Mutho was married to the respondent, Patmanathan a/l Krishnan. Their marriage was registered under the Law Reform (Marriage and Divorce) Act 1976 (“civil marriage”) and they had three children. The respondent converted to Islam subsequently. A dispute arose when the respondent converted the children to Islam without the appellant’s consent and obtained the custody of the children from the Syariah Court. Three certificates of conversion to Islam (“the Certificates”) and document showing that the Registrar of Muallaf (“the Registrar”) had registered the children as Muslims were delivered to the appellant. However, the children were not present before the Registrar and did not utter the two clauses of the Affirmation of Faith required by the Administration of the Religion of Islam (Perak) Enactment 2004 (“the Perak Enactment”). At the High Court, the appellant filed a judicial review application and was granted an order (“the Order”) to quash the Certificates. The appellant was also granted custody of the three children and her divorce petition for civil marriage was allowed. Upon appeal, the Court of Appeal set aside the Order. Aggrieved, the appellant appealed.
The issues were whether (i) the High Court has jurisdiction to review the Registrar’s actions; (ii) a child of a civil marriage aged below 18 years old must comply with the statutory requirements
before the Registrar registers his conversion; and (iii) the surviving mother and father of a child of a civil marriage must consent before the Certificates can be issued.
In allowing the appeal, the Federal Court held that the High Court is seised with jurisdiction to review the Registrar’s decision, as such judicial power is essential in the basic structure of the Federal Constitution and is not ousted by article 121(1A) of the Federal Constitution. The Federal Court also ruled that the Registrar has no jurisdiction to issue the Certificates, as the requirements under sections 96(1) and 106(b) of the Perak Enactment are not fulfilled. On a purposive interpretation of article 12(4) read with the Eleventh Schedule of the Federal Constitution, and the application of sections 5 and 11 of the Guardianship of Infants Act 1961, it was decided that the consent of both the appellant and the husband are required before the Certificates can be issued.
Sections 96(1) and 106(b) of the Administration of the Religion of Islam (Perak) Enactment 2004