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Islam and Christian–Muslim Relations

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Conversion to Islam in relation to

divorce in Malaysian family law
a
Zuliza Mohd. Kusrin
a
Centre for the Study of Islam and Christian–Muslim Relations ,
University of Birmingham , Birmingham, UK
Published online: 20 Nov 2006.

To cite this article: Zuliza Mohd. Kusrin (2006) Conversion to Islam in relation to divorce in
Malaysian family law, Islam and Christian–Muslim Relations, 17:3, 307-315

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 Islam and Christian– Muslim Relations,
Vol. 17, No. 3, 307 –315, July 2006

Conversion to Islam in Relation to

Divorce in Malaysian Family Law

ZULIZA MOHD. KUSRIN

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Centre for the Study of Islam and Christian –Muslim Relations, University of Birmingham, Birmingham, UK

ABSTRACT Malaysia is a multi-religious country that recognizes two types of family law based
upon the Law Reform Marriage and Divorce Act 1976 and the Islamic Family Law. The former
administers the marriage matters of non-Muslims, and the latter deals with Muslim family affairs.
This paper aims to elucidate the matter of the conversion of a non-Muslim spouse to Islam in
connection with an application to dissolve a marriage in Malaysia. When both the husband and
wife have solemnized and registered their marriage under the Law Reform Marriage and Divorce
Act but one of the parties subsequently converts to Islam, Section 51 of the Law Reform Marriage
and Divorce Act contains a provision for the dissolution of the marriage. On the other hand, the
Islamic Family Law also has certain provisions to be applied in the case of conversion. As a
consequence of the conversion, neither party to the marriage continues to be bound by the same
family law provision. Thus there arise several issues to be identified and clarified, such as who
has the right to file the divorce petition, which court has the jurisdiction to adjudicate the
petition, and whether there is any conflict of interest between the parties in the process of
dissolving their marriage. This paper attempts to highlight and discuss the issue of conversion, by
making a comparative study between the provisions in the Law Reform Marriage and Divorce
Act and the Islamic Family Law.

Introduction
Malaysia is a multi-racial and multi-religious country that recognizes the freedom of its
subjects to practise their religion, whether that be Islam, Buddhism, Taoism, Hinduism,
Christianity or other. Even though Article 3 of the Federal Constitution regards Islam
as the official religion of the Federation, there is also a provision in the Constitution
that guarantees freedom of religion to other believers to profess, practise and propagate
their own religions or beliefs within the limitations permitted by law. Freedom of religion
in Malaysia also extends to the freedom of anybody who is 18 years old and above to
change his or her religion or belief. Thus the phenomenon of changing religion, or
conversion, is common in Malaysia.
As regards the multi-racial and multi-religious population, there exist two types of
family law that cover family matters problems, known as the Law Reform Marriage

Correspondence Address: Zuliza Mohd. Kusrin, Centre for the Study of Islam and Christian–Muslim
Relations, University of Birmingham, Elmfield House, Bristol Road, Birmingham B29 6LG, UK.
Email: zulifpi@yahoo.co.uk

0959-6410 Print=1469-9311 Online=06=030307–9 # 2006 CSIC and CMCU

DOI: 10.1080=09596410600794988
 308 Z. M. Kusrin

and Divorce Act 1976 (Act 164) and the Islamic Family Law. The provisions in the
Law Reform Marriage and Divorce Act cover all family matters related to non-
Muslim marriages, ranging from the minimum age of marriage, consent of the
parents, solemnization of marriage, registration of marriage, to petition for mainten-
ance, petition for divorce, guardianship and so on, while the Islamic Family Law
deals with family matters related to Muslim marriages. Malaysia is a federation consist-
ing of 13 states (Johore, Kedah, Kelantan, Malacca, Negeri Sembilan, Pahang, Penang,
Perak, Perlis, Sabah, Sarawak, Selangor and Terengganu) and three federal territories
(Kuala Lumpur, Labuan and Putrajaya) and matters of Islamic religion are under the
jurisdiction of each state ruler. Every state has its own Islamic Family Law, passed
by its own State Legislative Assembly. In the three federal territories, the federal gov-
ernment administers Islamic family matters. The Islamic Family Law covers all Muslim
matrimonial matters such as betrothal, minimum age of marriage, petition for
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maintenance, divorce and guardianship.

The issue of the conversion of one or other previously non-Muslim spouse who had
solemnized and registered their marriage under the civil family law, that is the Law
Reform Marriage and Divorce Act, occurs frequently in Malaysia. Following such a con-
version, the first and crucial legal issues that need clarification are the status of the
subsisting marriage, the court that has jurisdiction to adjudicate the case, the effect on
both parties of not dissolving the marriage, and other related issues.

Provisions on Conversion in the Civil Family Law in Malaysia

The provisions for conversion in civil family law are stated in the Law Reform Marriage
and Divorce Act 1976 (Act164). Clause (1) of Section 51 of the Act states,

(1) Where one party to a marriage has converted to Islam, the other party who has
not so converted may petition for divorce:
Provided that no petition under this section shall be presented before the expiry of
the period of three months from the date of the conversion.

This provision clearly explains that, in the case of conversion, only the other party who
has not converted to Islam has the right to file a petition for divorce in the civil law court.
The provision also states that the application will be allowed to commence only after the
expiry of a period of three months from the date of the conversion. The three-month period
is the same as the period of cidda for a divorced woman in Islam. Section 51 of Act 164 is
meant as a permission rather than an obligation to petition for the dissolution of the said
marriage. The practice of these provisions was illustrated in the case of Pedley v. Majlis
Ugama Islam Pulau Pinang ([1990] 2 Malayan Law Journal, p. 307), where the court held
that even though the civil law court has the right to dissolve the civil marriage when either
of the parties converts to Islam, it merely provides grounds for the non-converted party to
file a divorce petition.
In the Malaysian Islamic Law context, the marriage of a Muslim man with a Jewess or a
Christian is legal when she is a kitābiyya. The definition of kitābiyya as stated in Section 2
of the Islamic Family Law (Federal Territories) Act 1984 is:

(a) a woman whose ancestors were from Bani Yacqub; or

 Conversion in Relation to Divorce 309

(b) a Christian woman whose ancestors were Christians before the prophethood of the
Prophet Muhammad; or
(c) a Jewess whose ancestors were Jews before the prophethood of the Prophet cĪsā.

In the case of Abdul Razak v. Lisia Bintie Mandagie alias Maria Menado ([1965] 1
Malayan Law Journal, p. xvi), the Singapore Sharica Court1 decided that the marriage
that had been solemnized between the plaintiff, who was a Muslim man, and the defen-
dant, who was a Christian woman, was void according to the Shāficı̄ School of Law.
The decision was based on the fact that before the solemnization of the marriage the defen-
dant was a Christian whose ancestors became Christians after the prophethood of the
Prophet Muhammad (pbuh). The court had relied on the meaning of kitābiyya as
defined in the Minhaj al-tālibı̄n as a person whose ancestors were Christians or Jews
˙
before the prophethood of the Prophet Muhammad (pbuh) and believed in the Book of
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the Injı̄l that had not been altered by the theologians. The case of U. Viswalingam v. S.
Viswalingam ([1980] 1 Malayan Law Journal, p. 10) reaffirmed the provision concerning
marriage with a kitābiyya by elaborating that a Muslim woman is only permitted to marry
a Muslim man, although a Muslim man is allowed to marry either a Muslim woman or a
Christian or a Jewess to whom this definition of kitābiyya applies.
As Ahmad Ibrahim has commented, it is impossible to find a kitābiyya in Malaysia
nowadays, so it is quite surprising to see that the petition for divorce in Section 51 of
the Act 164 is only permissible rather than obligatory (Ibrahim, 1966, p. 59). Thus, accord-
ing to Malaysian law, marriage between a Muslim and a non-Muslim is not permitted, so
the petition for divorce in Section 51 should be enforced as an obligation rather than a per-
mission, since from the date of the conversion the parties are divided by having different
family laws applied to them.
A similar provision that may be applied in the case of conversion can also be found in
the Islamic Family Law (Federal Territory) Act 1984. Clause (2) of Section 46 of the Act
states,

The conversion to Islam by either party to a non-Muslim marriage shall not by itself
operate to dissolve the marriage unless and until so confirmed by the Court.

The law that can be understood from this provision is that the convert party has a right
under his or her new personal law, that is, Islamic law, to file a divorce petition in the
Sharica Court. However, in Malaysia there are provisions that relate to the matter of con-
version during marriage in the civil law as well as in Islamic law, and all cases concluded
till the present time undoubtedly indicate that only the civil court has the jurisdiction to
adjudicate in such cases of conversion. This is because the jurisdiction of the Sharica
Court applies only to Muslims whereas the civil court’s jurisdiction embraces both
Muslims and non-Muslims. This situation was illustrated in the case of Ng Swee Pian
v. Abdul Wahid and anor ([1992] 2 Malayan Law Journal, p. 425). In this case, the plain-
tiff and the second defendant were Buddhists who had contracted their marriage under the
Civil Marriage Ordinance 1952. Subsequently, the husband, who was the second defen-
dant, embraced Islam and then applied to the Sharica Court in Bukit Mertajam to dissolve
his civil marriage on the ground that his wife (the plaintiff) had not embraced Islam. A
notice had been served by a Qadi, the first defendant, on the wife, that is the plaintiff,
informing her that she should attend the Sharica Court for the divorce procedure. Later,
 310 Z. M. Kusrin

in the absence of the plaintiff, the Qadi dissolved the civil marriage on the ground that the
plaintiff had refused to follow her husband and embrace Islam. Following that decision,
the plaintiff brought an action in the civil High Court seeking a declaration, inter alia,
that the Qadi had no jurisdiction to make an order to dissolve the marriage and therefore
the said order should be made void. The plaintiff also claimed that she had a right to
present a divorce petition under Section 51 of the Law Reform Marriage and Divorce
Act 1976. Upon this petition, the civil High Court held that the Qadi Court had no juris-
diction to hear the petition and make an injunction to dissolve the marriage, since one of
the parties to the marriage was a non-Muslim. The Qadi Court only has jurisdiction if both
parties to the marriage are Muslims.
In the case of Shamala a/p Sathiyaseelan v. Dr. Jeyaganesh a/l C. Mogarajah ([2004]
2 Malayan Law Journal, p. 241) the civil High Court judge in his judgement states,
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although s. 46 of the Islamic Family Law (Federal Territories) Act 1984 gives the
Syariah Court power to confirm that the conversion to Islam by either party to a
non-Muslim marriage may dissolve the marriage, this does not seem to be effective
to terminate the marriage as far as the other party is concern. This is because by
virtue of ss. 4 and 8 of the Act, such marriage, if valid, shall continue until dissolved:
(a) by the death of the parties, (b) by order of a court of competent jurisdiction or (c)
by a decree of nullity made by a court of competent jurisdiction.

Section 4 of the Law Reform Marriage and Divorce Act 1976 states,

A subsisting valid marriage deemed to be registered under this Act can be dissolved
only under this Act.
Every such marriage, unless void under the law, religion, custom or usage under
which it was solemnized, shall continue until dissolved—
(a) by the death of one of the parties;
(b) by order of a court of competent jurisdiction; or
(c) by a decree of nullity made by a court of competent jurisdiction.

Section 8 of the Law Reform Marriage and Divorce Act 1976 states,

Continuance of marriage
Every marriage solemnized in Malaysia after the appointed date, other than a
marriage which is void under this Act, shall continue until dissolved—
(a) by the death of one of the parties;
(b) by order of a court of competent jurisdiction; or
(c) by a decree of nullity made by a court of competent jurisdiction that the marriage
is null and void.

The obiter dictum given in the Shamala case has proven that Sections 4 and 8 of the Law
Reform Marriage and Divorce Act, which accorded the Civil Court power to dissolve that
particular marriage, simultaneously invalidate the applicability of Islamic Family Law
to adjudicate the said case. Clauses (b) and (c) of these sections explicitly affirm that
the marriage shall be dissolved only by the court that has a competent jurisdiction to do
so, which in this case is the Civil Court.
 Conversion in Relation to Divorce 311

The general rule in the Family Law in Malaysia is that Muslim family matters will only
be dealt with in the Sharica Court. However, in the case of conversion, any order made
by the Civil Court will bind the convert party. This provision is stated in clause (3) of
Article 3 of the Law Reform Marriage and Divorce Act as follows:

This Act shall not apply to a Muslim or to any person who is married under Islamic
Law and no marriage of one of the parties which professes the religion of Islam shall
be solemnized or registered under this Act; but nothing therein shall be construed to
prevent a court before which a petition for divorce has been made under Section 51
from granting a decree of divorce on the petition of one party to a marriage where the
other party has converted to Islam, and such decree shall, notwithstanding any other
written law to the contrary, be valid against the party to the marriage who has so
converted to Islam.
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The above provision unambiguously verifies the applicability of the Civil Court’s decision
concerning the Muslim party in a case involving conversion, despite its apparent contra-
diction of the provisions of both family laws.
The question of conflict of jurisdiction between the Civil Court and the Sharica Court
has been dealt with by the addition of clause (1A) of Article 121 in the Federal
Constitution that came into force from 10 June 1988. Article 121 of the Federal
Constitution states,

Judicial power of the Federation

121 (1) There shall be two High Courts of co-ordinate jurisdiction and status,
namely—
(1) one in the States of Malaya, which shall be known as the High Court in Malaya
and shall have its principal registry in Kuala Lumpur; and
(2) one in the States of Sabah and Sarawak, which shall be known as the High Court
in Sabah and Sarawak and shall have its principal registry at such place in the States
of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;
(3) (Repealed ),
and such inferior courts as may be provided by federal law and the High Courts and
inferior courts shall have such jurisdiction and powers as may be conferred by or
under federal law.
(1A) The courts referred in Clause (1) shall have no jurisdiction in respect of any
matter within the jurisdiction of the Syariah courts.

The effect of the amendment is that the High Court has no right to interfere in cases that are
within the jurisdiction of the Sharica Court. However, in order not to deprive the party con-
cerned of his or her rights, in some exceptional cases, such as the case of conversion, the
High Court will be allowed to adjudicate even though the case falls within the jurisdiction
of the Sharica Court. This can be understood from the case of Tan Sung Mooi v. Too Miew
Kim ([1994] 3 Malayan Law Journal, p. 117). In this case the petitioner and respondent
were married in 1976 under Chinese customary rights and cohabited until 1982 when
they eventually decided to live apart. In 1988 the petitioner left the matrimonial home
and in 1989 filed a divorce petition under Section 53 of the Law Reform Marriage and
Divorce Act 1976, on the ground that her marriage with the respondent had irretrievably
 312 Z. M. Kusrin

broken down. In 1991 the High Court granted a decree nisi to be made absolute after three
months. In the meantime, the petitioner filed an application against the respondent under
Sections 76 and 77 of the Act for an order of division of matrimonial assets and for main-
tenance. The respondent raised the issue that the High Court had no jurisdiction over him
with respect to the ancillary relief arising from the divorce because of his conversion to
Islam. The petitioner, however, contended that, since she remained a non-Muslim, she
could not come under the jurisdiction of the Sharica Court and so the High Court
should continue to exercise its jurisdiction in the matter. The High Court held that, as
the petitioner’s application under Sections 76 and 77 concerned matters affecting both
parties’ legal obligation as non-Muslims incidental to the granting of the divorce, the
High Court would have jurisdiction to hear and determine the ancillary proceedings
despite the fact that the respondent had converted to Islam after the divorce but before
the hearing of the ancillary application. It would result in grave injustice to non-Muslim
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spouses and children whose only remedy would be in the civil courts if the High Court
no longer had jurisdiction, since the Sharica Courts do not have jurisdiction over non-
Muslims. Although the new clause (1A) of Article 121 has taken away the jurisdiction
of the High Court in respect of matters falling within the jurisdiction of the Sharica
Court, it does not have jurisdiction over a petitioner who is a non-Muslim. Therefore
Article 121 (1A) of the Federal Constitution does not affect the jurisdiction of the High
Court to hear the application under Sections 76 and 77 of the Act.

Effect of Non-Application of Divorce by the Non-Convert Party

The Status of a New Contract of Marriage
As mentioned in Section 51, conversion merely provides grounds for the non-Muslim
party to file a divorce petition. The main question that might arise is that if the non-
Muslim party does not file a divorce petition, is the convert party still bound by the
provision in the civil law act? Since the Law Reform only recognizes monogamous
marriage, will the convert party be charged under bigamy if he or she contracts another
marriage under his or her personal law? In the Shamala case ([2004] 2 Malayan Law
Journal, p. 241) the husband and wife were both Hindus at the time of their marriage in
1998. Subsequently on 19 November 2002, the husband converted to Islam. Nevertheless,
the wife, who could have petitioned for divorce under Section 51 of the Law Reform
Marriage and Divorce Act, did not do so. The judge in his judgement states,

The defendant husband by converting to the Islamic faith is in effect converting his
marital status from a monogamous marriage to a polygamous marriage . . . The word
used in the section is ‘may’, i.e. to maintain the status of the civil marriage (Hindu
Marriage) if the unconverted wife wishes to remain the wife of her converted
husband although the converted husband can take another wife if he can do
justice as the Holy Qur’an Al-Nisa(iv) Ayah 3.

The judgement clarified that the convert party was free to contract any new marriage under
his new personal law, regardless of the continuation of his or her civil marriage.
 Conversion in Relation to Divorce 313

Continuation of Responsibility for Maintenance

In civil law, the former husband or wife has a responsibility to maintain their spouse
regardless of the dissolution of the marriage. Section 77 of the Law Reform Marriage
and Divorce Act states,

Power of Court to order maintenance of spouse

(1) The court may order a man to pay maintenance to his wife or former wife—
(a) during the course of any matrimonial proceedings;
(b) when granting or subsequent to grant of a decree of divorce of judicial separ-
ation;
(c) if, after a decree declaring her presumed to be dead she is found to be alive.
(2) The court shall have the corresponding power to order a woman to pay mainten-
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ance to her husband or former husband where he is incapacitated, wholly or par-

tially, from earning a livelihood by reason of mental or physical injury or ill
health, and the court is satisfied that having regard to her means it is reasonable
so to order.

The provision implies that a man is responsible to maintain his wife as well as his
former wife. A woman, by order of the court, is also responsible to support her husband
or former husband if he is incapacitated whether wholly or partially. By referring to
this provision, it seems that the convert husband or wife who previously under his or
her civil marriage was responsible for supporting his or her spouse will remain respon-
sible, regardless of his or her conversion to Islam. In this case, if the convert party remar-
ries under his or her new personal law, he or she will definitely have to support two
families.
In the case of Kung Lim Siew Wan (P) v. Choong Chee Kuan ([2003] 6 Malayan Law
Journal, p. 260) the plaintiff married the defendant in 1984 under the Law Reform
Marriage and Divorce Act 1976. There were two children of the marriage. Following
domestic problems, the spouses separated in July 2000. The plaintiff filed an originating
summons seeking, inter alia, care, custody and control of the children of the marriage,
support for the children of the marriage and for the plaintiff herself, and costs. The defen-
dant applied to strike out the plaintiff’s originating summons on the grounds that the Civil
Court had no jurisdiction to hear the plaintiff’s application, since the defendant, since and
at the time of his marriage to the plaintiff, had embraced Islam. The High Court held that
although Section 3(3) of the Act states that the Act does not operate as against a person
professing the Islamic faith, or on persons married under Islamic Law, the defendant
was estopped and prevented from using his identity as a person of the Islamic faith for
the express purpose of evading his responsibilities under the Act, in view of the fact
that the defendant at the time of registration of the marriage to the plaintiff had declared
himself a Buddhist.
In the Shamala case ([2004] 2 Malayan Law Journal, p. 241), the judge in his ratio
decidendi states, ‘The fact that the husband had converted to Islam did not change the
status of their civil marriage contracted on 5 November 1998. The husband’s obligation
under the Hindu marriage could not be extinguished or avoided by his conversion to
Islam.’ He further asserts, ‘I think Islam must not be used as escapism by non-Muslim
 314 Z. M. Kusrin

men to run away from their legal obligations which they contracted when they were non-
Muslims by merely changing their religion to Islam.’

The Right of Inheritance

According to the Islamic law of inheritance, a non-Muslim is prohibited from inheriting
any goods from a deceased Muslim. However, in the case of the conversion of a marriage
partner, the non-converted spouse is legally entitled to inherit any goods left by his or her
deceased spouse, provided that the civil marriage was still in existence at the time of the
death. In the case of Eeswari Visuvalingam v. Government of Malaysia ([1990] 1 Malayan
Law Journal, p. 86) the appellant was married according to Hindu rites and the marriage
was registered. Her husband subsequently embraced Islam. He was a pensioner under the
Pensions Act 1980 and later died. During the lifetime of the deceased, the appellant had
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not sought a divorce from him under the Law Reform Marriage and Divorce Act 1976.
The High Court held that the appellant was not entitled to the derivative pension. She
appealed against the High Court’s decision. The Supreme Court upon the appeal held
that, since there was no evidence that the marriage had been dissolved, the appellant’s
marriage remained valid under the civil law at the time of the death of her convert
husband. The appellant came within the definition of ‘widow’ in the Pension Regulations
1980 as being the surviving spouse of a deceased officer whose marriage was recognized in
Malaysia as a valid marriage. She was therefore a dependant under the pension laws and
entitled to the derivative pensions.

Conclusion
The dissolution of civil marriages on the grounds of conversion is among the most com-
plicated of matters and needs to be dealt with carefully in order to take account of the
rights of the parties concerned. Since the family matters of Muslims and non-Muslims
in Malaysia are administered by different family laws and different courts, it is inevitable
that conflicts of interest between the spouses will arise during the divorce proceedings,
from the question of which court should have jurisdiction in the case, to other matters con-
sequent on conversion. The above discussion has explicitly indicated that the Civil Court
is competent to judge in conversion cases because its jurisdiction covers non-Muslims as
well as Muslims. Even though, from an Islamic perspective, this solution seems to deprive
the convert party of his or her right to apply Islamic law, as shown in the cases that have
been decided, almost all the judges in the Civil Court assert that this is appropriate and
reasonable, since the Sharica Court is not competent to adjudicate the case.
In fact, it is not really important whether the Civil Court or the Sharica Court adjudicates
in such cases as long as the parties involved receive their rights equally and justly, but in
the present situation the Civil Court is the only court that has jurisdiction to hear cases
resulting from conversion. However, the sensitivity of the Muslim parties and the
Muslim community at large might be overcome by referring to expert opinion from
Sharica Court judges when dealing with conversion cases. Even though judges would
not be bound to follow such expert opinion, at least it might give them some understanding
of Islamic provisions in specific matters.
Before the independence of Malaya, Islamic law was regarded as the law of the land.
Nowadays, due to the colonial administration of the British government in Malaya, the
 Conversion in Relation to Divorce 315

scope of the application of Islamic law has been restricted to Islamic family law, as per-
mitted in the Federal Constitution. It is therefore essential to implement these provisions
strictly, in order to avoid further erosion of the implementation of the principles of Islamic
law. As a provisional solution, the judges in the civil court could play an important role in
interpreting the law by considering the provisions in Islamic law in order to develop a
harmonious relationship between Muslims and non-Muslims.

Notes
1. At that time Singapore was still part of Malaysia.

References
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IBRAHIM , A. (1996) Tinjauan Kepada perundangan Islam (Kuala Lumpur: Institut Kefahaman Islam Malaysia).