Thursday 28 Mar 2024
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PUTRAJAYA: The civil court has no jurisdiction to hear a custody dispute initiated by a Hindu mother as her former husband has converted their two children to Islam, the Federal Court heard yesterday. 

Lawyer Mohamed Haniff Khatri Abdulla, appearing for Muslim convert Izwan Abdullah, told the five-man bench that the Guardianship of Infants Act 1961 prohibits the civil court from making custody orders on Muslim children. 

He also said Section 51 (2) of the Law Reform (Marriage & Divorce) Act 1976 only allows the civil court to issue custody orders on non-Muslim children once a divorce petition is filed due to conversion to Islam by one of the spouses. 

“The civil court (High Court) cannot decide on the custody issue because Izwan has unilaterally converted his children to Islam,” he said of the appeal brought by Izwan against a Court of Appeal ruling last year granting custody of the children to his former wife S Deepa.

Mohamed Haniff said Deepa, the respondent in the custody appeal, also did not contest the conversion.

On April 7 last year, the High Court in Seremban granted Deepa custody of the couple’s two children, Sharmila (Nurul Nabila), now 10, and Mithran (Nabil), seven.

The decision overrode an April 2012 Syariah Court order granting Izwan custody of the children.

However, two days after the High Court order, Izwan abducted Mithran from Deepa’s home in Jelebu, and had been holding on to the boy since then.

Deepa then obtained a recovery order from the High Court on May 21 last year to get police to search for Izwan, whose Hindu name is N Viran, and Mithran. 

However, on Jan 14, the Federal Court allowed Izwan to keep Mithran, pending the outcome of his appeals against the custody and the recovery order.

On Dec 17, the Court of Appeal upheld the High Court order granting custody of the children to Deepa. 

The appellate court also dismissed Izwan’s appeal against the recovery order obtained by Deepa to get her son back, saying the order was correct in law.

Lawyer Fahri Azzat, who appeared for Deepa, told the bench chaired by Tan Sri Md Raus Sharif that the Guardianship of Infants Act is only applicable if the children’s parents are dead, which is not the case here.

“It is the High Court that has jurisdiction because the marriage of Deepa and Viran [now Izwan] was registered under civil law,” he added. 

Fahri said that although Izwan is a Muslim, he could submit to the civil court to settle all matrimo-

nial issues with Deepa because the civil marriage is governed under the Law Reform (Marriage and Divorce) Act. 

The lawyer said a syariah court is an inferior tribunal, and the High Court has a supervisory role over any religious court that acts beyond its jurisdiction.

Senior federal counsel Suzana Atan told the court that the police were unable to enforce the recovery order obtained from the High Court as Izwan had secured a similar order from the syariah court. 

“The police were in a quandary because there were two conflicting orders,” said Suzana, who represented Inspector-General of Police Tan Sri Khalid Abu Bakar as intervener.

Fahri, in response to Suzana, said the recovery order was closely tied to the custody order issued by the High Court, and the police were in contempt for refusing to act.

“Unlike the order obtained from the High Court, the syariah court order had no direction to the police,” he added.

Khalid applied to be a party in the suit because the order was directed at the police to look for Mithran. 

The order, served on Bukit Aman on June 26 last year, stated that Izwan must return Mithran to Deepa, failing which the police must locate the ex-husband to take the child from his unlawful custody.

Before adjourning the case, Md Raus instructed Mohamed Haniff and Fahri that their clients must bring along the children when the court delivers its ruling at a date to be fixed later. — The Malaysian Insider

 

This article first appeared in The Edge Financial Daily, on June 26, 2015.

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