Outgoing Chief Justice Tun Tengku Maimun Tuan Mat has described the unilateral conversion case involving M. Indira Gandhi’s three children by her former husband as one of the most impactful cases she presided over during her career.
During a programme titled "Live to Lead: The Chief Justice’s Journey”, held at Universiti Malaya on Monday (Jan 20), Tengku Maimun also disclosed that she faced criticism from certain groups for her stance on the case, with accusations that she had failed to defend Islam.
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00:00This series serves as a platform for prominent leaders in the Malaysian legal industry
00:04to share their inspiring journeys and their paths to success.
00:08If we were to ask you to name three pivotal cases in your career,
00:15which ones would you name?
00:18Well, there are a few when I was sitting in the court of appeal,
00:21but perhaps the one that I am still thinking about it now is the case of Indira Gagi.
00:28Most of us would know Indira Gagi as it relates to the principle of judicial power.
00:37But this was a case which I decided in the minority,
00:41it was an appeal from the decision of Justice Lee Swee Seng in Nepal, if I'm not mistaken,
00:46on the recovery order and mandamus order.
00:49What happened here was Pak Manadhan, the husband, and Indira Gagi, the wife,
00:54or rather the father and the mother, were undergoing divorce, or they were divorced,
00:59I can't remember the facts correctly now, but the thing is this.
01:03Pak Manadhan converted, in 2009, he converted to Islam.
01:07They were Hindus and they were married under the Civil Law Divorce Act,
01:14Law Reform Marriage and Divorce Act.
01:16And when he converted to Islam, he converted the children as well.
01:20I think the youngest was about barely one year old, about 11 months old, the youngest.
01:26There are two other children, the elder ones.
01:29So what happened when he converted and converted the children as well,
01:34that was the case that came up until the Federal Court on the issue of conversion
01:41without the approval of both parents and so on and so forth.
01:46But in this particular instance, when Pak Manadhan converted to Islam,
01:52he went to the Syariah Court to obtain a custody order of the children.
01:58And this part is really something which I cannot comprehend.
02:08The youngest child was being snatched from the mother when she was still breastfeeding.
02:14She was 11 months old.
02:16So what happened?
02:17The father went to the Syariah Court and obtained a custody order from the Syariah Court.
02:23The first point I would like to make is this.
02:27What was the basis for the Syariah Court to assume jurisdiction
02:31when the marriage was a non-Muslim marriage
02:34and the mother was not before the Syariah Court?
02:37For obvious reasons, she is a non-Muslim and therefore she could not appear.
02:42The Syariah Court has no jurisdiction over her.
02:44Yet, there was a custody order made by the Syariah Court.
02:50Indira Gandhi, on the other hand, had a valid custody order given by the civil court.
02:57So that was a valid order because the principles of law are trite.
03:02When you contracted a civil marriage, whatever issues arising out of that civil marriage
03:07would have to be sorted out in the civil court.
03:11That's clear principles.
03:13No quarrel about that.
03:15So now we have two so-called conflicting custody orders.
03:23And when faced with these conflicting orders,
03:28I think Indira Gandhi went to the civil court to seek for a recovery order.
03:34So the mother, Indira Gandhi, went to the civil court to ask for a recovery order
03:40and also several other proceedings were going on,
03:42contempt against the husband and so on and so forth.
03:45Because the custody order which was granted by the civil court
03:50was served on the husband and he did nothing.
03:54So what happened was, finally the wife went to the civil court
03:59and applied for judicial review.
04:01For many days, she was asking the IGP or the police
04:05to search for the children to be given back to the mother.
04:10And that was the appeal that came up before me in the court of appeal
04:13where the IGP, the High Court judge, granted the mandamus order
04:17directing the IGP to search the children and bring them back to the mother.
04:25The IGP was not happy.
04:27There was an appeal before the court of appeal and I was a lone voice there, dissenting.
04:32Because to me, there is no basis, no justification even in Islam,
04:39as I understand Islam, to deprive a child of her mother
04:46and to deprive the mother of the child.
04:49What sin has Indira Gandhi committed against anyone of us
04:52such that she has to face this agony?
04:55From then, 2009 until now, I believe she still has not been...
05:04The children are still... don't know where.
05:08I don't think she has any news of where the children are until now.
05:13So where is the justice here?
05:17And I suspect the order of the civil court on the mandamus,
05:23on the custody order, whatever else that was issued by the civil court,
05:29were not enforced by the authorities or the powers that be
05:34because of the misconception that we need to protect Islam.
05:40So then, because this is also the question that was posed to me by one VIP,
05:44a very important person, telling me that
05:48when I... making a remark to me, making some remarks to me,
05:53that when I decided cases, I had not uphold the principles of Islam
05:59and not protecting Islam.
06:01And reference was made to that mandamus order that I made quite a bit.
06:05So when I asked, which principles of Islam are we talking about here
06:10that we need to uphold?
06:12I received no reply from him, no response at all.
06:15So my conclusion is that this has got nothing to do with the principles of Islam.
06:20It's just a matter of plain and simple fairness and justice
06:24that a mother ought not to be deprived of her children and vice versa.