The High Court has given joint legal custody of the two boys to Muslim convert Dr M Jeyaganesh (alias Muhammad Ridzwan Mogarajah) and his Hindu wife, bank clerk S. Shamala in accordance with Section 5 of the Guardianship and Infant Act 1961.

Actual custody (day to day care and control) would vest with the mother subject to the father's visitation rights and maintenance obligations because, according to the judge (Datuk Faiza Tamby Chik), '... nothing in the world can replace or change the mother's love'.

The judge said that the children were born to Hindu parents and not Muslim parents and the father deliberately converted them without consent of their mother when he knew the wife had filed for custody. Under circumstances of which the 'secular' Guardianship and Infant Act 1961 would apply over Syariah law, which would have otherwise given custody (hadanah) to the Muslim parent.

The judge, however, put a caveat that the children were 'mualaf' (Muslim converts) and hence '... the mother would lose her rights to actual custody if there are reasonable grounds to believe she would influence the children's present religious belief, for example teaching them her belief (Hinduism) or making them eat pork'.

This caveat is the part that is difficult to reconcile.

Firstly, if civil law (the Guardianship and Infant Act 1961) supercedes Syariah law to accord joint legal custody to the parents in the first instance, then the Act should apply throughout.

As nowhere under the Act is it stated or implied that 'influencing the children's present religious belief' is ground for losing custody obtained, why should the mother's right to custody be subject to this caveat?

The next question that may be asked is whether the children, who are only three and five years old, have any 'present religious belief'. In fact, according to the report from a professor in child and adolescent psychiatry (Dr Kasmini Kassim) cited by the judge, the older child, Sakthiswaran, specifically "...does not want his new Muslim name or to live with their father's new lady friend".

This being the case, how could it be said that the five-year-old had any 'present religious belief' much less the other three-year-old?

The judge said that when the children reached the age of 'discernment' (i.e. age of consent at 18), they could then make a choice to live with either parent. Until then, the Guardianship and Infant Act and provisions of joint custody should apply.

The complex issue here is not just about the adjustment of rights between a man and a woman in an estranged matrimonial relationship. It should also involve the rights of the children as individuals caught in an unhappy situation of adults' infidelity and custody fights.

From the angle of the children's interest, if they were not old enough at this moment to exercise free will to choose between the parents as to whom they want to live with, how could they be old enough to make a decision on religion?

Or to have a religion attributed to them as their 'present religious belief' just because their father thought it fit to earlier register them as converts to frustrate their mother's custody rights under civil law?

The judge further said: "Although the father is a mualaf Muslim, he cannot literally convert the children without the consent of the mother. They were converted in a shroud of secrecy and hence there was no automatic conversion," he said, adding that although the conversion was endorsed by the Syariah Court it was not binding on the mother.

If the conversion were not binding on the mother (because the conversion was procured without the consent of both parents as would be required by the Guardianship and Infant Act, which still applies in relation to custody), why should the conversion procured under such circumstances of be binding upon the two boys?

How can it be binding on a three and five-year-old who have not reached an age of 'discernment' to make a rational choice on which parent they would like to live with or what religion to adopt for themselves?

This issue is respectfully raised because the wife's entitlement to custody was granted subject to the caveat that "... the mother would lose her rights to actual custody if there are reasonable grounds to believe she would influence the children's present religious belief, for example teaching them her belief (Hinduism) or making them eat pork."

She was accorded the right to custody because of the stated assumption that it was for the best protection of the children's interests that the mother has actual day to day care and custody as "... nothing in the world can replace or change the mother's love."

This being the case, she should lose the custody when it is shown that she does not accord the maternal love or has ignored her maternal duties to the detriment of the children's interests.

She should not lose the custody right by the caveat which essentially renders such right nugatory when the husband points and alleges that the way she lives, as a Hindu, will be always be inconsistent with the 'existing religious belief' of their children.

It cannot be asserted that it would be against the best interests of the children for the mother to do things inconsistent with their conversion, when the children have no notion of the implications of the conversion foisted upon them by the father with the extraneous motive of defeating the custody challenge of his estranged wife.

What is in issue here is the constitutional right of the children under the Federal Constitution to freedom of religious belief and whether one parent without the consent of the other can change the infants' religion by conversion?

It is also strange that when the Guardianship and Infant Act triumphs over Syariah law on the narrow issue of custody on account of the wife's consent not being obtained in relation to the conversion, it cannot, with consistency, be equally extended to apply to the status of the conversion itself.

If it were that the Act applies in the first instance and that joint consent of both parents as guardians was required under the Act for conversion of infant children, then the conversion itself procured by one without the consent of the other, should not be allowed to stand.

It cannot stand much less serve as a caveat to monitor the non-consenting party's merits in the discharge of her maternal and custody obligations.

One can only be subject to one stream of law, whether civil or Syariah, and not one stream for custody, interlaced or qualified by certain aspects from the other stream in relation to revocation of that custody, which will only obfuscate rather than clarify the purported resolution of the conflict.