A Hindu family's bid to stop Mais from reburying Malaysian man as alleged Muslim convert

Malay Mail
Malay Mail

KUALA LUMPUR, Feb 20 — Selangor's Islamic authorities and a Hindu family are currently still locked in a legal dispute in court over whether the late secondary school teacher B. Raguram died as a Muslim or as a Hindu, almost three years since he was buried in a Hindu funeral ceremony.

The court case is important as it could ultimately decide whether the Malaysian man's body would be exhumed to be reburied according to Islamic funeral rites, and whether his non-Muslim widow and his two young children would be able to inherit his assets or if his assets will go to a Muslim treasury.

The Selangor Islamic Religious Council (Mais) went to the Shariah courts immediately after Raguram's March 2020 death, and in May 2020 obtained Shariah court orders declaring the man as a Muslim and ordered for his Islamic reburial.

Raguram's family say he was a Hindu when he died and went to the civil High Court to stop the Islamic reburial, but the High Court in Shah Alam on November 10, 2022 dismissed the family's lawsuit which had sought to prevent the reburial.

Mais has not exhumed Raguram's body to rebury him, as his family is appealing the civil High Court's decision.

Here’s Malay Mail's summary of why the civil High Court made such a decision, based on the 18-page written judgement dated January 6 by the High Court judge Shahnaz Sulaiman:

The facts of the case

Raguram was born and lived as a Hindu, but was purportedly converted to Islam on November 8, 2012 in a school in Selangor in the presence of two individuals.

His Hindu wife and their two children are disputing his alleged conversion, as Raguram has never been registered as a Muslim or issued a certificate of conversion to Islam. His identity card states he is a Hindu.

Raguram in December 2013 went to the National Registration Department (NRD) to clarify his religious status and in June 2014 applied for a new identity card, with both occasions showing that the official records still state his status as a Hindu.

On March 2, 2015, Raguram affirmed a statutory declaration (SD) or sworn statement to say he was intoxicated and had uttered the Kalimah Syahadah — the declaration of belief needed to convert to Islam — out of fear due to alleged threats by two individuals.

He is said to have continued living as a Hindu before his death on March 14, 2020, with two teachers stated as having gone to the hospital and attempting to carry out Islamic funeral rites but ultimately leaving without conducting any such ceremonies as they were unable to show proof of his conversion to Islam.

Raguram’s Hindu funeral was held on March 15, 2020, but the Selangor Islamic Religious Council (Mais) on the next day started 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 the wife said she was unable to attend on that day.

On May 21, 2020, the Shariah High Court in Shah Alam declared that Raguram had converted to Islam on November 8, 2012 and declared that he was a Muslim at the time of his death, and ordered 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.

On August 21, 2020, the wife and the couple’s two children filed a civil lawsuit through a judicial review application, naming Mais, the Shariah High Court in Shah Alam and the Selangor state government as the three respondents.

The family sought for the civil High Court to grant orders to quash the Shariah court’s decision and to prevent Mais from enforcing the Shariah court order — including exhuming Raguram’s body.

The family also wanted a court declaration that Raguram was a person professing the Hindu religion at the time of his death, a declaration that the Shariah court does not have the jurisdiction to determine whether a deceased person was a Muslim or not at the time of his death, and a declaration that the Administration of the Religion of Islam (State of Selangor) Enactment 2003’s Section 61(3)(b)(xi) is unconstitutional and null and void.

Section 61(3)(b)(xi) of the Selangor state law states the Shariah High Court’s jurisdiction as covering the hearing and deciding of court cases if all those part of the case are Muslims and the case involves a declaration on whether a deceased person was a Muslim at the time of his death.

In court papers for their lawsuit, Raguram’s non-Muslim widow and children say they are entitled to inherit assets left behind by him as his next of kin, and suggest the Selangor authorities are 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 died without writing a will would go to the baitulmal.

On February 24, 2021, High Court judge Datuk Seri Tun Abd Majid Tun Hamzah granted leave for the judicial review, which meant the lawsuit could proceed to be heard by the High Court.

On November 10, 2022, judge Shahnaz dismissed the family’s judicial review application.

What the civil High Court decided: It’s all about jurisdiction

The High Court judge noted that the most important issue in the judicial review was whether the civil courts have the jurisdiction to decide on Raguram’s religious status. Basically, do the civil courts have the power to consider his purported conversion and the Shariah court order?

Raguram’s family argued that only the civil courts can decide on his religious status as he was never a Muslim from the start, and as his alleged conversion to Islam was disputed — based on his statutory declaration saying he was forced to do so and his having continued to live as a Hindu.

The lawyer for Raguram’s widow and children argued any court order on his religious status would affect their rights as his immediate family.

Mais’s lawyers cited the Federal Constitution’s Article 121(1A), where the civil courts are to have no jurisdiction over matters under the Shariah courts’ jurisdiction. The lawyer for the Shariah court in Shah Alam argued it has a right to decide whether Raguram was a Muslim or had renounced Islam before his death, based on Section 61(3)(b)(xi) of the 2003 Selangor state law.

The High Court judge cited the Federal Court’s February 2021 decision in Rosliza Ibrahim’s case.

In Rosliza’s case, the chief justice had in her judgment said civil courts have the jurisdiction to decide on "ab initio” cases or cases where the person claim to "never have been a Muslim” in the first place, while the Shariah courts would have jurisdiction to decide when it involves persons who say they are no longer Muslims.

To answer the question of whether the civil courts have the jurisdiction or power to hear Raguram’s case, the High Court judge then examined all the facts relating to the purported conversion to Islam — including the lack of registration or document certifying his conversion and the NRD records showing him as a Hindu.

Noting that the Raguram’s family’s lawyer said that he had continued going to the Hindu temple for prayers and living as a Hindu after the disputed conversion to Islam, the judge highlighted the High Court’s June 2009 decision in Nagamuthu Punnusamy & Ors v Ketua Pengarah Kementerian Perubatan Malaysia & Ors.

Judge Shahnaz quoted from this line in judge Rosnaini Saub’s 2009 court ruling: "The fact that the deceased lived a lifestyle and conduct inconsistent of a Muslim convert does not alter his status as a Muslim in the eyes of the existing laws.”

In that 2009 case, Mohan Singh’s family had challenged the refusal by a government hospital in Selangor to release his body to them for cremation according to Sikh rites, as Mais claimed he had converted to Islam in 1992.

News outlet The Nut Graph had at that time reported Mohan’s Sikh family as saying he had continued living as a Sikh even after the purported conversion — which the family disputes — and that he had performed Sikh prayers as well as Sikh funeral rites for his mother, with no changes to his Sikh name or religion in his identity card after the purported conversion.

In that case, the High Court in Shah Alam on July 6, 2009 decided that the civil courts had no jurisdiction to hear his case and that Mohan’s status comes under the Shariah courts’ jurisdiction.

With the High Court rejecting a stay of the decision despite the family’s plans to file an appeal, Mohan’s body was brought out of the hospital mortuary with his Sikh family allowed to pay their last respects. Mais confirmed he was then given an Islamic burial at a Muslim cemetery at night on July 6, 2009 — which was the same day the court had given its ruling..

As for Raguram’s case, the judge in her judgment listed several details regarding his purported conversion, including evidence from the two individuals who witnessed the conversion in 2012. (These are the two individuals whom Raguram had claimed had resulted in his conversion out of fear.)

The judge said that while Raguram uttering of the Kalimah Syahadah may or may not have been done out of fear, the fact that he had made a statutory declaration in 2015 regarding that matter indicates that "there was” — in the judge’s view — "a conversion”.

"If indeed there was no question as to the conversion of the deceased, the question therefore is why there was a need for the deceased to affirm a SD. It is unclear what prompted the deceased to affirm the SD which was done after more than two years of the purported conversion,” the judge said.

Citing the facts in this case, the judge said she was satisfied that Raguram’s case is not an "ab initio” case or where he "never was a Muslim”, but it is a renunciation case or where one is "no longer a Muslim” and that this is why his case should be decided by the Shariah courts.

The High Court judge quoted this line from the chief justice’s 2021 written judgment in Rosliza’s case: "It is only in renunciation cases where one already professes or proclaims to profess the religion of Islam (irrespective of whether they actually practise the faith) with the subsequent decision to change what they profess, that the matter is removed to the jurisdiction of the Syariah Court.”

The High Court judge then commented on Raguram’s case: "Here, the deceased had uttered the Kalimah Syahadah, that is proclamation to profess the religion of Islam. The deceased was said to practise the Hindu religion after his purported conversion to Islam.

"There is also the SD affirmed by the deceased stating that he is a Hindu. The deceased affirmed a SD to the effect that he is a Hindu and would like to be buried according to Hindu burial rites, in the event of his death. For this reason, this court is of the considered view that this matter is for the jurisdiction of the Syariah Court,” the judge said.

"In conclusion, this court opines that it does not have the jurisdiction to hear the religious status of the deceased. The jurisdiction of this case in this court’s view, falls within the jurisdiction of the Syariah Court. As this court has determined it has no jurisdiction to hear this case, it will not consider the other issues raised by the applicant,” the judge concluded.

Raguram's family is represented by Kee Hui Yee, Rajo Kuppan, and Surendra Ananth.

Arham Rahimy Hariri and Mohamad Ariffuddin Hanafi represented Mais, while Selangor assistant state legal adviser Irmawatie Daud represented the Shariah High Court in Shah Alam and the Selangor state government.

What’s next

The wife and two children filed an appeal at the Court of Appeal on November 14 last year.

The Court of Appeal has yet to fix a hearing date for the appeal, and the case will be up for case management on March 13.