The Ipoh High Court ruled that the Perak Islamic religious & Malay customs council, and the state government had failed to discharge the burden of proving that the 26-year-old plaintiff was ever a Muslim.
PETALING JAYA: The High Court in Ipoh has declared a man born out of wedlock a non-Muslim, ruling that the designation of “Islam” on the 26-year-old’s MyKad was not conclusive proof of his religious status.
In a written judgment delivered last month, Justice Bhupindar Singh said he was guided by the Federal Court’s 2021 decision in Rosliza Ibrahim v Kerajaan Negeri Selangor & Others, when ruling in the plaintiff’s favour.
The plaintiff had filed an originating summons seeking a declaration that he was not a Muslim.
In 2012, the national registration department (JPN) marked the plaintiff’s identity card with the term “Islam”. His application to JPN seven years later to have the term removed was rejected, prompting the present legal action.
The defendants — the Perak Islamic religious & Malay customs council, and the state government — had argued that the plaintiff was a Muslim by virtue of the label on his MyKad and his father’s religious status at the time of the plaintiff’s birth in 1999.
However, Bhupindar ruled that the burden of proof lay with the defendants, who failed to produce credible evidence that the plaintiff had ever professed Islam.
“After considering the evidence comprehensively, there is no proof that the plaintiff professed the religion of Islam since birth or at any time thereafter,” he said.
The judge noted that the council, in its affidavit, conceded it had no additional evidence to support its claim of conversion.
The plaintiff was also shown never to have taken Islamic studies while in school. Instead, he had practised the Hindu faith, participating in various Hindu festivals while under the care of his mother, and later his aunt.
The defendants relied on Section 2(b) of the Administration of the Religion of Islam (Perak) Enactment 2004 (ARIE), which defines a Muslim as someone whose parent or parents were Muslim at the time of birth. However, Bhupindar found this provision inapplicable, as the plaintiff was born out of wedlock.
He noted that the Hindu marriage ceremony between the plaintiff’s parents was neither recognised nor solemnised under Hindu customs, as the man’s father was not of the Hindu faith.
The defendants also did not dispute the absence of a valid marriage under shariah law, with a letter from the plaintiff’s solicitors to the Ketua Pendaftar Nikah, Cerai & Ruju’ seeking confirmation left unanswered.
The judge also noted that the plaintiff’s birth certificate bore the endorsement “permohonan seksyen 13,” indicating registration as an illegitimate child.
“As the evidence stands, there is no proof that the parents were legally married, and the contemporaneous evidence undoubtedly reveals that the plaintiff was born as an illegitimate child,” the judgment read.
Bhupinder further noted that the term “parents” in Section 2 of ARIE refers only to the parents of a legitimate child.
“The plaintiff in this case is an illegitimate child of the couple and therefore, he cannot be deemed a Muslim under Section 2(b) of ARIE 2004,” the judge said.
Premised on the factual matrix and evidence before the court, Bhupindar concluded that the case involved an “ab initio” claim — that the plaintiff was never a Muslim — rather than a renunciation of the faith.
“Accordingly, the plaintiff is entitled to the declaration sought in the originating summons that he is not a person professing the religion of Islam,” the judge said.
Lawyers Kee Hui Yee and Asma Azmi represented the man.
Adham Jamalullail Ibrahim appeared for the council, while senior federal counsel Fitri Sadarudin acted for the Perak government.
The defendants are appealing the decision to the Court of Appeal.
