PETALING JAYA: Although S. Deepa got custody of her daughter, their lives will now come under close scrutiny as Sharmila is now Nurul Nabila after her unilateral conversion by her father.
There has not been any court order or direction with regards to the religious instruction of upbringing of the children since the case began.
Asked if Deepa was in danger of being arrested if she took her daughter to a temple, allowed her to take part in religious ceremonies or provided her with religious instructions, family law practitioner Honey Tan said this could well be the case.
“The Federal Court could have attached other orders under Section 89 of the Law Reform Act when it gave Deepa custody of her daughter.”
Tan said Part II of the Control And Restriction (The Propagation Of Non-Islamic Religions Amongst Muslims) (Negri Sembilan) Enactment 1991 listed offences which could prove to be a problem.
Clause 5(1) talks about subjecting a Muslim under the age of 18 years to influences of a non-Islamic religion.
And an offence is committed if such a child:
> receives instruction in a non-Islamic religion;
> takes part in any ceremony, act of worship, or religious activity of a non-Islamic religion; or
> takes part in any activity which is sponsored or organised by or is for the benefit or interest of a non-Islamic religion or any body or institution associated with a non-Islamic religion.
“This is not a syariah enactment but a state enactment. This means Deepa can be prosecuted,” added Tan.
Constitutional and syariah law expert Nizam Bashir said the present thinking in Malaysia was that with a custody order, the custodial parent was free to determine the religious instruction of the child.
“Nevertheless, Clause 4 of the 1991 enactment states that a person commits an offence if he or she encourages or influences etc a Muslim to be a non-Muslim.
“To be certain of her ability to provide religious instruction, Deepa ought to resolve the status of the certificate of conversion.
“In my view, as the subject matter pertains to conversion, the matter falls within the jurisdiction of the Syariah Court.
“Deepa, being Hindu, is not subject to the jurisdiction of the Syariah Courts.
“Nevertheless, personal jurisdiction is something she can waive and she is free to pursue her remedies in the Syariah Courts vis a vis the certificate of conversion.”
He added, however, that Deepa could still raise constitutional arguments in the civil courts as they were the only appropriate forum to hear her complaints that her constitutional rights have been infringed upon.