A group of women's organisations has called for amendment of Section 51 of the Law Reform (Marriage and Divorce) Act 1976, saying that it discriminates against women whose husbands convert to Islam.

In tandem with this, the group - spearheaded by the All Women's Action Society of Malaysia (Awam) - has launched a public awareness campaign to discuss related issues.

Section 51 states that, within three months of the conversion of a spouse to Islam, the non-converting spouse has the option to petition for a divorce, following which the marriage is considered by Syariah law to be annulled.

The campaign took off from a round table discussion with the Ministry of Women's Development and Family on April 8. Apart from Awam, it involves the Women's Aid Organisation, Sisters in Islam and Penang-bases Women's Centre for Change.

Left in lurch

Awam legal officer Pushpa Ratnam said the need to amend the law was based on several reasons, drawn from real-time experiences of women whose husbands have become Muslims.

"The provision is unfair to women, because annulment of the marriage (upon the husband's conversion) takes effect without their consent at times - and sometimes without her even being aware of it," she said.

"It is discriminatory because, by and large, it is usually the men who convert and leave women in the lurch."

She also argued that in the area of children's custody, non-converting wives are deprived of their rights as equal guardians as enshrined in the constitution. They argue that under Syariah laws, children are automatically placed under the custody of the Muslim parent.

The women's NGO also advocated a revision of Section 51 because, they claimed, questions abound regarding inheritance rights upon the death of the Muslim spouse.

"Under the country's Muslim laws, Muslims can only inherent from and bequeath to Muslims. In the event of a conversion, the non-Muslim spouse and children are left without any means of livelihood," Pushpa said.

The issue is exasperated, the group says, by article 121(1A) of the Federal Constitution, which states that matters pertaining to the Syariah courts (for Muslims) and those matters pertaining to the civil courts (for non-Muslims) are mutually exclusive.

"The exclusiveness of these two court systems is oppressive because in several cases, the wife did not even know her husband had converted. Its only later that she finds out, the same time she discovers that she has been divorced by her husband!" Pushpa said.

Clarification needed

Whereas many people have expressed concern that Islamic laws were encroaching upon their rights as non-Muslims, the discussion at Awam seemed to suggest some overlapping of jurisdiction between the Syariah and the civil courts.

Clarifying Awam's position, Pushpa said, "What we are suggesting is the coordination of the two systems so that some unscrupulous husbands don't use the loopholes in order to get what they want, whether that's just to marry another (Muslim) woman, to be free of one's non-Muslim spouse, or to gain custodial rights over the children. Some even convert out of spite."

Asked to comment on the proposal, chairperson of the Bar Council Kuthubul Zaman Bukhari today said he is in support of a revision of the section concerned if only to clarify the law so that there is no doubt.

"If what these NGOs want is a revision of the said act in order to make it more clear, then I support it because there is a need for such clarification," he told malaysiakini today.

Section 51 needs to be more clear, said Kuthubul, because it's not only the wife who might be affected by the husband's conversion, but the husband as well because his status in the marriage as registered with the civil authorities is left hanging.

Clarifying further, Kuthubul said, "When anybody converts, whether it's the husband or the wife, it is as if he or she is taken out of the jurisdiction of the civil system (with regards to his marriage) and placed in the Syariah legal system under which he is bound."

"But that leaves the question of his civil marriage unaddressed. So in fact, if he wants to remarry, he is questioned as to whether that would amount to him committing bigamy, which is prohibited in the civil legal system," he continued.

Protection by courts

Kuthubul said both parties, whether Muslims or non-Muslims, should be able to approach the civil courts to petition for divorce.

Echoing the Kuthubul's comments, the council's Syariah Committee chairperson Shamsuriah Sulayman said calls for amendments to Section 51 should address all sides to the issue.

Shamsuriah said the courts have taken into account possibilities of wives and children being neglected upon conversion of the man, and such concerns have been written into the law.

She made reference to the case of Tan Sung Mooi v. Too Miew Kim, wherein sub-section 51(2) was cited "as a protection to non-Muslim spouses and children of the marriage against a Muslim convert".

"If certain parties are protesting against the acts of men converting out of spite, I would also like to point out that some wives choose not to petition for divorce in the civil courts out of spite, even though they do not want to live with their husbands anymore," added Shamsuriah.

"In that way, the husband would not be allowed to marry for fear that the civil laws recognise him as still being married to his non-Muslim spouse."