KUALA LUMPUR, Nov 12 — The Malaysian Hindu Sangam is checking with its…
A five-man panel of the nation’s most senior judges, led by Chief Justice Tun Zaki Azmi, ruled to close the case of the 38-year-old mother who wants the Federal Court to recognise her right to raise her two young children as Hindus.
“We feel disappointed with the decision. We are also checking with our lawyers on what next we can do because from the first day we have been involved,” the Hindu society’s president Mohan Shanmugam told The Malaysian Insider.
“The conversion was not done right,” an upset-sounding Mohan added.
The society has been keeping tabs on the court case of Shamala’s bid to raise her children Saktiwaran and Theivaswaran in the religion they were born into, for the last eight years.
Shamala had married anaesthetist Dr Jeyaganesh C. Mogarajah in 1998. Her husband was a Hindu at that time but embraced Islam four years later.
He converted their two children into his new-found religion shortly after without Shamala’s knowledge or agreement.
Both parents are in a bitter fight to gain custody over Saktiwaran and Theivaswaran, now aged 11 and nine respectively, and to be allowed to raise them in their respective religions.
Under Malaysian Islamic law, a child necessarily becomes Muslim when one parent enters the faith.
But Shamala claims the federal constitution, the supreme law of the land, provides that she has an equal right as a parent and guardian to decide the religion for children below 18.
Malaysia has a dual-track justice system that allows Muslims to seek legal redress in the Syariah Court, but not non-Muslims.
Dr Jeyaganesh, now also known as Muhammad Ridwan, went to the Syariah Court and won full custody while Shamala, a Hindu, resorted to the civil High Court.
She was awarded custody as well, but was ordered to allow her estranged husband weekend visits.
Shamala appealed the ruling but fled the country with the two children in 2004 before the court could hear the case.
For a while, they were believed to be in Australia, but Shamala’s current whereabouts, as well as that of Saktiwaran and Theivaswaran , remain unknown.
Today’s ruling dealt a hard blow to the battle to end one-sided religious conversions, which has caused a deep rift in this multicultural and secular nation but where Islam is recognised as the official creed.
Zaki, in his grounds of judgment, noted that Shamala had gained an unfair advantage over her husband when she breached a court order allowing the father the right to visit the two children.
“By doing so, she had unlawfully had custody of the children and even if the court were to examine the children now as to who would they chose to live with, most likely they will choose to live with the wife,” the top judge said.
The Federal Court said it cannot adopt a “fugitive doctrine of heads I win, tails you lose” in deciding the basic rights for either parent.
“Parties must have equal footing and not unfair representation,” Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum said in his judgment.