PROHAM’S POSITION ON INDIRA GANDHI’S RIGHT AS A WIFE & MOTHER

Indra, Ivy & Deepa - (file photo- Malay Mail July 24, 2014)

PROHAM fully supports each individual’s absolute right to profess the religion of his or her choice.  However, in a marriage when the converting spouse takes away the rights of the non - converting spouse, the law must not only offer redress but uphold the rights of members of the family whose rights are affected.

In the case of Indira Gandhi her rights as a wife and mother under civil law came to nought when she was told that courts accepted the unilateral conversion of her children. In the case of Indira Gandhi too, the rights of her two children were overlooked if not ignored.

The best interest of the child must be central principle to any decision pertaining to the child’s welfare, education and religion.

PROHAM urges the relevant authorities not to ignore Malaysia’s 1995 ratifications of the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) and the UN Convention on the Rights of the Child (CRC).  Each of these treaties contains unequivocal provisions that oblige governments, to ensure that each parent has equal rights (and equal responsibilities) in raising their children.

There is furthermore a guarantee in Section 5 of the Guardianship of Infants Act 1961, which gives each parent equal guardianship rights over the children, as well as Section 11 which provides for the courts to consider the wishes of both parents, where applicable.  A mother’s equal right to guardianship, to make decisions relating to long term and at times irreversible issues such as religion, welfare and education and must be fully upheld and protected, one parent’s consent cannot suffice.

Another important consideration is that rights conferred to a woman under civil law in her legal position as a wife and mother cannot be erased and retreated in favour of another interest, non-retrogression is an essential principle in constitutional law.

PROHAM concurs with women groups as outlined in their 2007 JAG Memorandum “Safeguard Rights of Wives and Children upon Conversion of Husbands to Islam” whereby the call to uphold specific rights were raised, namely:

(a)      The right of married non-Muslim women to continue to rely on the rights and obligations contained in a civil law marriage agreement when their spouses convert to Islam;

(b)      The right to have all issues relating to a civil law marriage settled according to civil laws and adjudicated only in civil courts;

(c)       The right to petition for divorce on the basis that conversion to Islam has led to a breakdown of her marriage;

(d)      Upon divorce, the right to receive maintenance, for herself and her children, as provided for in the civil laws;

(e)      The equal right, as a parent, to decide on matters relating to her children’s upbringing;

(f)        The continued right to inherit from a family member who converts to Islam; and

(g)      The right to be informed of her spouse’s conversion to Islam.

PROHAM urges the Cabinet to muster political will to uphold its own decision made on April 22, 2009, that there should be no unilateral conversion of children and that the children of parents where one parent chooses to convert to Islam must continue to be raised in the common religion at the time of the marriage.

​Released on behalf of PROHAM by: ​

Ms Ivy Josiah, Datuk Kuthubul Zaman Bukhari, & Datuk A Vaithilingam

Jan 12, 2016