PUTRAJAYA: The Shamala-Muhammad Ridzwan court battle over the custody and conversion of their children took a twist yesterday when Dr Muhammad Ridzwan Mogarajah challenged the practicality of the hearing in the absence of his ex-wife and their two sons who have left Malaysia.Dr Muhammad Ridzwan, a Muslim convert formerly known as Dr Jeyaganesh C Mogarajah, raised the preliminary objection before a five-member Federal Court bench led by Chief Justice Tun Zaki Azmi which was supposed to hear constitutional issues relating to the validity of the conversion of the children yesterday.
Zaki deferred the ruling on the preliminary objection, saying that the matter was complicated and the court required two to three weeks to read all the cases before coming to a decision.
The bench included Court of Appeal president Tan Sri Alauddin Mohd Sheriff, Chief Judge of Malaya Tan Sri Arifin Zakaria, Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum and Federal Court judge Datuk Zulkefli Ahmad Makinudin.
Earlier, Dr Muhammad Ridzwan’s counsel, Muralee Menon, said the Federal Court should not entertain former bank clerk S Shamala’s application to deliberate on constitutional issues in her absence and that of their children, who are believed to be in Australia.
Muralee questioned Shamala’s right to be heard, claiming that she was still in contempt of a High Court order which granted Muhammad Ridzwan visitation rights to their children.
He said that until she has purged her contempt, the court should not hear her application and that none of the proceedings would be practical if his client could not see his children.
In the Court of Appeal on April 28 last year, Dr Muhammad Ridzwan consented to Shamala’s application to refer five constitutional issues to the Federal Court for determination.
Among the questions is whether the Administration of Islamic Law (Federal Territories) Act 1993, which gives rights to a converted parent to convert his or her children from a civil marriage without the knowledge and consent of the other parent, is inconsistent with the Guardianship of Infants Act.
Yesterday her counsel, Datuk C V Das, challenged Dr Muhammad Ridzwan’s objection, saying that Shamala should not be shut out from being heard by the court because the Federal Court’s outcome on the constitutional issues was of public interest, affecting not only Shamala but other pending similar cases.
Zaki then questioned the practicality of the proceedings, saying that it would only be ‘a paper decision’ assuming that the court decided in his favour.
“If you cannot enforce it then what is the purpose of giving a judgment? You don’t want to make a decision a futility. Why do you want to go on with the hearing if the children are not here. It is a waste of time,” he said.
Das said it was a legal question involving the Federal Constitution on whether one parent could unilaterally convert the children of a civil marriage to Islam without the knowledge and consent of the other parent.
Shamala and her children were Malaysians and she had come to the court to seek justice because she wanted to bring up her children in Malaysia and was seeking reassurance that the religious rites of her children would be safe-guarded, said her lawyer.
He added that was also obvious contempt by Dr Muhammad Ridzwan who had failed to comply with a High Court order to pay a monthly RM250 maintenance for each child.
The High Court had concluded in its decision that Dr Muhammad Ridzwan’s conduct was deplorable because he quietly went to obtain a custody order from the Syariah Court, Das said.
The couple were married in 1998 according to Hindu rites and their marriage was registered under the Law Reform (Marriage and Divorce) Act 1976.
In 2002, he embraced Islam and subsequently converted their two sons to Islam without Shamala’s knowledge and consent.
In 2004, the Kuala Lumpur High Court granted Shamala’s application for care and control of her sons but she was disallowed to teach them her religious beliefs or to make them eat pork. The High Court also granted Dr Muhammad Ridzwan visitation rights and awarded legal custody to him and Shamala where they have to agree on issues pertaining to education, health and medical care of the children.
On April 13 2004, the High Court rejected Shamala’s application for a declaration to nullify her sons’ conversion after ruling that the Syariah Court was the qualified forum to determine the status of her two children by virtue of Article 121 (1A) of the Federal Constitution. — Bernama