KUALA LUMPUR, May 11 — Hindu mother Loh Siew Hong has today failed to challenge her three children’s unilateral conversion to Islam after the High Court declared their conversion by her ex-husband to be lawful, despite done without her consent
In delivering the judgment, High Court judge Datuk Wan Ahmad Farid Wan Salleh said the welfare of the children must take precedence as was raised in the Federal Court’s 2018 decision in M. Indira Gandhi’s case.
In his findings, the learned judge said there was no evidence before the court that neither the three children have reverted to the Hindu religion nor stopped professing the religion of Islam under their mother’s custody.
“There is another aspect of Indira’s case that has rarely been discussed in subsequent reported cases. It concerns the welfare of the children that must take precedence.
“Having regard to all the circumstances of the case, there is no evidence before me that the three children are not happy staying with the applicant. Therefore, the welfare of the children, within the meaning of Indira Gandhi, dictates that the status quo should remain,” he said.
Wan Ahmad Farid stressed he was not departing from the Federal Court’s 2018 landmark ruling, but rather “refined its interpretation” in light of the majority judgment in a recent Court of Appeal case back in January.
The case revolves around a woman who was born to an ethnic Indian father who was Hindu and an ethnic Chinese mother who was originally Buddhist but later converted to Islam.
The High Court had granted her application for a declaration that she is “not a person professing the religion of Islam”, but was later overturned at the Court of Appeal.
“Despite the vigorous dissenting judgment of the minority in the 37-year-old Selangor-born woman case, I am bound by the doctrine of stare decisis.
“This Court, being a High Court, is bound by the majority decision of the Court of Appeal,” Wan Ahmad Farid said.
Children’s certificates of conversion not disputed
In his broad grounds, Wan Ahmad Farid said there was no dispute arising pertaining to the certificates of conversion issued against the three children by the Registrar of Mualaf after having satisfied the legal requirements under the state’s legal provision which allows for one parent to convert a child unilaterally were adhered to.
Citing the aforementioned appellate court case, Wan Ahmad Farid said the majority held that a certificate of conversion to Islam shall be conclusive proof of the facts stated therein; which can similarly be applied in Loh’s case.
Wan Ahmad Farid also noted the second respondent’s affidavit, namely the Perlis Islamic Religious and Malay Customs Council (MAIPs), where its chief executive Mohd Nazim Haji Mohd Noor affirmed that the three children had expressed their faith and determination to remain in the religion.
In the affidavit, Mohd Nazim had said that the children expressed their intention through their actions and behaviour a day after they were ordered by the court to be released to their mother’s custody in February 2022, where it was said they were still performing Subuh prayers; with one child even expressing an ambition to be a shariah lawyer in the future.
“In response, the applicant (Loh) denied this in her further affidavit. It was a bare denial. After having obtained custody of the child pursuant to the habeas corpus order, the three children were staying with the applicant.
“However, the applicant did not deny the affirmative assertion that the three children continued professing the religion of Islam in performing the daily Subuh prayers when they were in her custody,” he said.
Thus, even if the certificates of conversion were not conclusive proof in view of its unilateral nature, Wan Ahmad Farid said the “force of the evidence” would suggest that the three children continued professing the religion of Islam.
Wan Ahmad Farid also made no order to cost in view of the public interest regarding the case.
Appearing for Loh were lawyers A Srimurugan and Shamsher Singh Thind, while Perlis state legal advisor Mohd Radhi Abas appeared for the Registrar of Mualaf, Perlis state mufti Datuk Mohd Asri Zainul Abidin and the Perlis state government.
Lawyer Mohamed Haniff Khatri Abdulla represented the Religious and Malay Customs Council of Perlis.
In Loh’s case, she is contesting her ex-husband’s move to change their three underaged children’s religion from Hinduism to Islam without her knowledge and consent in 2019.
Among others, she is seeking declarations that her children are Hindu and that the children are legally unfit to embrace Islam without her approval.
She is also seeking a declaration that her former husband, Muhammad Nagashwaran Muniandy is legally unfit to allow the Registrar of Muallaf to convert their children without her approval.
Furthermore, Loh is seeking a certiorari — Latin for quashing order — to reverse her children’s registration of conversion to Islam dated July 7, 2020 issued by the registrar.
She is also seeking a declaration that the Perlis state’s legal provision that allows for one parent to unilaterally convert a child is unconstitutional.
