The Court of Appeal has unanimously affirmed a High Court ruling that a clerk was never a Muslim as her mother had unilaterally converted her in 2004 without the father’s consent.
A three-member bench, chaired by Justice Azimah Omar, said there was no appealable error by the High Court that warranted an intervention.
In her broad grounds of judgment, Azimah said the woman, now 28, was unable to give consent as a minor as this would be in breach of Section 117 (b) of the Selangor Islamic Religious Enactment 2003.
The provision states it is mandatory that the consent of both parents must be obtained before conversion of a minor who is below the age of 18 could take place.
“Neither the mother nor the woman had the capacity to do the conversion,” said Azimah, who sat with Justices Noorin Badaruddin and Firuz Jaffril.
The Selangor Islamic Religious Council had taken the position that this was a case of renunciation and she should go to the shariah court.
However, Azimah said it had nothing to do with the woman’s measure of faith, and was all about procedural and administrative matters.
Last year, the High Court had allowed the woman’s declaration that she was a Hindu at all times and her conversion to Islam was done unilaterally by the mother.
Azimah said a non-Muslim does not require a declaration from the shariah court that he or she is non-Muslim.
“In this case, the woman should not be unnecessarily burdened to prove in the shariah court that she is no longer a Muslim,” she said, adding that the religious court had no exclusive jurisdiction to determine the validity of an unlawful unilateral conversion.
Lawyers Ahmad Kamal Abu Bakar and Arik Zakri Abdul Kadir appeared for the council, while Rajesh Nagarajan and Nur Azyan Azimi represented the woman.
The facts of the case revealed that the woman was legitimately born as a Hindu as both her parents were from that faith when they married in 1982.
The couple separated in September 1999 and the woman and her two sisters were placed under the mother’s care and custody.
The religious status of her siblings is unclear.
In February 2004, the mother wanted to marry a Muslim man and registered as Muslim with the council’s branch office in Klang.
Subsequently, the mother converted the woman, who was seven years old in 2004.
In 2023, the woman filed an originating summons in the High Court in Klang, seeking a declaration that she was never a Muslim and the conversion by the mother was “void ab initio” or invalid from the very beginning.
The council filed an application to strike out the suit, stating the matter should be adjudicated by the shariah court.
