In appeal to stop man’s reburial as alleged Muslim convert, Hindu family says Shariah court had no jurisdiction

KUALA LUMPUR, Oct 30 — A Shariah court in Selangor did not have the powers to issue a court order for the reburial of school teacher B. Raguram according to Islamic rites, his Hindu family’s lawyer argued at the civil courts today.

Raguram’s religious status continues to be disputed three years after his death, with his Hindu family saying that he was a Hindu at his death and that he had claimed he was forced to convert to Islam, while the Selangor Islamic Religious Council (Mais) claim that he had converted willingly.

Raguram was never registered with Islamic authorities as a Muslim and was also never issued a certificate of conversion to Islam, and his identity card states he is a Hindu.

Today was the Court of Appeal’s hearing of Raguram’s Hindu widow and two young children’s appeal, where they are seeking court orders to quash the Shariah court’s decision for his reburial and to prevent Mais from enforcing the Shariah court order — which would include exhuming the body for reburial.

Immediately after Raguram’s burial in a Hindu funeral on March 15, 2020, Mais had the next day filed court proceedings in the Shariah High Court in Shah Alam.

Mais via a May 20, 2020 letter sought to have the Hindu wife appear in the Shariah court to testify on May 21, 2020, but she said she was unable to attend on that day.

On May 21, 2020, the Shariah High Court in Shah Alam issued a court order, declaring that Raguram had converted to Islam on November 8, 2012 and that he was a Muslim at the time of his death, and also ordering that Mais be allowed to take necessary action to register and administer Raguram’s purported conversion and burial of his body in accordance with Islamic rites.

The Hindu widow and their two children then filed a court challenge in August 2020 in the civil High Court against the Shariah court order. The High Court in November 2022 dismissed the family’s challenge and their appeal is the one heard before the Court of Appeal today.

Today, Raguram’s family’s lawyer K. Shanmuga argued that the Shariah court had actually gone beyond its jurisdiction or powers when it decided that Raguram was a Muslim at the time of his death.

“So on that ground alone, that Shariah court order was made in excess of jurisdiction and ought to be quashed,” Shanmuga argued during the Court of Appeal’s hearing through the video-conferencing platform Zoom.

Shanmuga acknowledged that there were disputed facts in this case, as Raguram’s widow said he had converted under duress and that there are affidavits or sworn testimonies from his colleagues and friends to say he continued to live as a Hindu, while Mais produced affidavits to say that he had appeared to live as a Muslim at his workplace.

Shanmuga said Mais went to the Shariah court to obtain an order declaring that Raguram was a Muslim and asked for a subpoena to be issued to Raguram’s non-Muslim widow to testify in the Shariah court. This took place during the Covid-19 pandemic and also when there were lockdowns in Malaysia.

Shanmuga said the widow had said she was unable to go to the Shariah court due to Covid-19, with Shanmuga arguing that the Shariah court actually has no jurisdiction to issue the subpoena in the first place.

Shanmuga argued that Raguram’s widow’s inheritance rights were directly affected and she should be made a “party” or part of any court case about the husband’s religious status when he died, instead of being called as just a witness.

“And in any event, my client ought not to be a witness. My client has to be a party in any dispute involving any determining of the religion of the husband.

“There are real world implications to their legal rights, inheritance and so on, for all the appellants, as widow to the deceased. So there are real world obligations, real world legal rights that must be taken into consideration. The party whose legal rights are being challenged must be party to the dispute,” he argued.

Previously, in court papers for their lawsuit, Raguram’s non-Muslim widow and children said they are entitled to inherit assets left behind by him as his next of kin, and suggested the Selangor authorities are allegedly seeking to improperly and unlawfully obtain his assets for the baitulmal (Islamic treasury which aids Muslims only) which would cancel out the family’s inheritance rights. The assets of Muslims who die without writing a will would go to the baitulmal.

While the Shariah High Court was relying on the Administration of the Religion of Islam (State of Selangor) Enactment 2003’s Section 61(3)(b)(xi) to decide that Raguram was a Muslim when he died, Shanmuga argued that the Shariah High Court would only have the power to make the decision if “all the parties” in the case are Muslims.

Section 61(3)(b)(xi) of the Selangor state law states that the Shariah High Court shall under its civil jurisdiction hear and decide all court cases “if all the parties” to the case are Muslims and if the case relates to a declaration on whether a deceased person was a Muslim or not at the time of his death.

Shanmuga also highlighted that the same Selangor state law’s Section 74(1) prohibits the Shariah court from making any order that involves the “right or property” of non-Muslims, adding that declaring whether a person was Muslim or not at the time of his death would involve the right of his next of kin.

Having stressed that Raguram’s widow and two young children should be part of any court case to decide on his religious status, Shanmuga said that Mais however could not name the next of kin as parties in the Shariah court as they are all Hindus and not Muslims. (Shariah courts only have jurisdiction over Muslims).

Shanmuga argued that if Mais had wanted to pursue the matter of whether Raguram was a Muslim when he died, it should have filed a case in the civil courts instead and named Raguram’s family there as parties to the case.

Shanmuga argued that the Shariah High Court should not have made the court order in the first place, adding that the Shariah court should have said it could not decide on the matter as Raguram’s wife and children are Hindus and as not all the parties to the case are Muslims.

“So I respectfully submit on that ground alone, the Shariah court order ought to be quashed,” he said.

Shanmuga said if there cannot be an amicable resolution and if there is any need to obtain a decision from the courts over this case, it must be done in the civil courts and cannot be in the Shariah courts.

Court of Appeal judge Datuk S. Nantha Balan then asked the lawyers representing Mais, the Shariah High Court in Shah Alam and the Selangor state government if they would consider the possibility of a practical solution of pursuing the matter in the civil courts and to name all the parties including the family in such a court matter.

Nantha Balan suggested that such a possibility would enable the evidence on Raguram’s religious status to be tested by cross-examination.

The two other judges on the Court of Appeal’s panel today are Datuk Mohd Nazlan Mohd Ghazali and Datuk Choo Kah Sing.

Mais’s lawyer Arham Rahimy Hariri and Selangor assistant legal adviser Khairul Nizam Abu Bakar who represented the Shariah court and the Selangor state government both said they would have to discuss this.

After standing down and discussing with the two other judges, Nantha then said the panel which he was chairing had decided it will continue to hear the appeal on another date.

Nantha indicated that this would give time for those in this case to see how they want to move forward or manage the case, and for the lawyers to discuss with their clients such as Mais.

“It’s a sensitive issue, it has got implications in a number of areas. So you all take advantage of the interim period and see if you can find some sort of accommodation to take this matter to the logical conclusion, whichever way we leave it to parties.

“I think I need to make it very clear in case it’s lingering on anyone’s minds, this panel has not made up its mind on anything. So we are just encouraging parties to move forward, so don’t read anything into whatever we said. All options are on the table and we are open to being persuaded whichever way,” he said.

The Court of Appeal then fixed tomorrow for the appeal to undergo case management and for another hearing date to be fixed for continued hearing.

If the hearing continues, the Court of Appeal said it will hear arguments from Mais first.

Lawyers Rajo Kuppan, Kee Hui Yee, Evangeline Yii also appeared for Raguram’s family today, while Mais was also represented by Mohamad Ariffudin Hanafi and the Shariah High Court in Shah Alam and the Selangor state government were also represented by assistant legal adviser Nurul Izzah Abd Mutalib.

For more on this case, read Malay Mail’s summary of the civil High Court’s decision when it dismissed Raguram’s family’s challenge.