“Whether children born out of wedlock to a Muslim mother and a non-Muslim father are Muslims by operation of law”
CASE:
BRIEF FACTS:
- Nivethah Thamayandiran [Nivethah] and Swetha Thamayandiran [Swetha] were sisters born out of wedlock to a Muslim mother and a Hindu father.
- Their birth certificates recorded their religion as Hindu.
- Later the National Registration Department (“NRD”) issued NRICs identifying them as Muslims, based on the sisters’ lineage.
- The Sisters refused to accept the identity cards and commenced proceedings in the High Court seeking declarations that they were and had always been Hindu, that Selangor Islamic enactments did not apply to them, and an order compelling the NRD to issue NRICs reflecting Hindu as their religion.
- The High Court allowed the application, holding that s 2(1)(b) Administration of the Religion of Islam Enactment 2003 [ARIE] was inapplicable because the sisters were illegitimate.
- The NRD and the Majlis Agama Islam Selangor appealed.
DECISION OF THE COURT OF APPEAL (“CURRENT COURT”)
The Court of Appeal allowed both appeals, set aside the High Court’s decision, and held as follows:-
- Illegitimacy does not render s 2(1)(b) ARIE 2003 inapplicable.
In cases of illegitimacy, the term “parent” in section 2(1)(b) cannot only refer to the father, but may still refer to the mother. - On the facts, the respondents’ mother was Muslim at the time of their birth.
Accordingly, the sisters were Muslims by operation of law under section 2(1)(b) ARIE 2003. - As persons legally identified as Muslims, the sisters fell within Item 1, List II, Ninth Schedule of the Federal Constitution, and Selangor Islamic enactments applied to them.
- The sisters’ claim that they were Hindu in belief and practice did not alter their legal identity as Muslims.
- Ancillary arguments were rejected:
1. Birth certificates stating the sisters were Hindu was relevant but not conclusive.
2. The parents’ Hindu customary marriage, which was not registered under Islamic law, was irrelevant.
3. Actual religious belief or practice was legally irrelevant once Muslim identity was established by law.
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