S Shamala and M Jeyaganesh were married in 1998 according to Hindu rites, with their marriage registered under the Law Reform (Marriage and Divorce) Act 1976.

Sometime in November 2002, Shamala's husband converted to Islam, taking on the name Muhammad Ridzwan Mogarajah.

Subsequently he converted their two underage sons (then aged four and two respectively) to Islam without Shamala's knowledge or consent.

She filed an application for custody of the children at the Kuala Lumpur High Court, and obtained an interim order from the court to grant custody of their children, while her husband was granted access.

However, before the interim custody order was made, Ridzwan obtained a hadanah custody order from the Syariah Court.

Shamala did not attend the Syariah Court hearing because she was a non-Muslim, and subsequently a warrant of arrest was issued against her, and also for failing to produce the children in the Islamic court.

After realising the children had converted to Islam, Shamala filed at the High Court for a declaration that the conversion of her two sons was null and void.

This is based on the Federal Constitution and the Guardianship of Infants Act granting her equal rights in determining the religion of the children.However, in April 2004, the High Court dismissed her application stating that this was a matter for the Syariah Court.

Father took children away

Ridzwan meanwhile, obtained interim access from the High Court, and used his weekly visitation rights under the civil court to see the children.

At one instance, the father took the children from Shamala and refused to return them because he had obtained a Syariah Court hadanah (custody order).

Following this, Shamala filed for committal proceedings against her husband. He eventually returned the children after the High Court cited him for contempt, and held that he violated the interim custody order issued by the High Court.

In July 2004, the High Court granted Shamala 'actual custody' of the children, and decided that she would share ‘legal custody' with her husband.

However, the court held she would lose custody if "there are reasonable grounds" to believe she would influence the children's Islamic beliefs.

 

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