Civil Court right forum to decide divorce, custody in civil marriages, Federal Court rules

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Deepa with her children leaving the Federal Court yesterday. — Bernama photo

Deepa with her children leaving the Federal Court yesterday. — Bernama photo

PUTRAJAYA: The Federal Court yesterday ruled that the Civil Court is the right forum to decide on matters involving divorce and custody of children where one spouse has converted to Islam and the other remains a non- Muslim.

The unanimous decision by a five-man bench chaired by Court of Appeal President Justice Tan Sri Md Raus Sharif held that a non-Muslim marriage did not automatically dissolve when one spouse converted to Islam.

Justice Raus said the civil court had the jurisdiction under Section 51 of the Law Reform (Marriage and Divorce) Act 1976 to grant ancillary reliefs relating to divorce and custody of children born in civil marriages.

He made the ruling in the case involving a Hindu clerk, S Deepa, 32, and her former husband, Izwan Abdullah, 33, who embraced Islam and subsequently converted their two children to Islam without Deepa’s consent.

Justice Raus said a husband’s obligation in a civil marriage was not extinguished by virtue of his conversion to Islam.

It was an abuse of process for a converted spouse to file for dissolution of his marriage and custody of children in the Syariah Court, he said, adding that a converted spouse should not shield himself behind religion from his obligation in divorce proceedings.

He said the converted spouse cannot use his conversion to escape his responsibilites in the civil marriage.

Justice Raus said the Syariah Court did not have the jurisdiction to decide on dissolution of marriages and custody of children in civil marriages and that the court’s (Syariah Court’s) jurisdiction was confined to marriages solemnised according to Syariah law.

However, the custody dispute between Deepa and Izwan, who was formerly a Hindu by the name of N. Viran, ended yesterday with the Federal Court granting custody of their eight-year-old son to Izwan and their 11-year-old daughter to Deepa.

Justice Raus said the court interviewed the two children in chambers and the son stated that he wanted to be with his father and the daughter said she wanted to be with her mother.

The panel had interviewed the children in chambers for about 40 minutes before delivering the judgment.

Justice Raus said the children appeared to be settled where they were with their parents and the court should not disturb their lives.

He said the daughter was staying with her mother in Johor Baharu and studying in an international school while the son lived with Izwan and went to school in Kuala Pilah, Negeri Sembilan.

The panel, which also comprised Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin and Federal Court judges Tan Sri Abdull Hamid Embong, Tan Sri Suriyadi Halim Omar and Datuk Azahar Mohamed, varied the High Court and Court of Appeal orders that granted custody of both the children to Deepa.

The court also recorded a consent agreement between Deepa and Izwan on visitation rights to either child under their respective custody.

Both Deepa and Izwan would have to meet once every two months in the house of Deepa’s mother, Siti Aishah Abdullah, who is also a Muslim convert, in Negeri Sembilan, on a Saturday for five hours.

Both parents also agreed to give reasonable access of telephone communication with the children without any restriction.

The couple was married in March 2003 under Hindu rites.

Izwan, who became a Muslim in 2011, converted the children without his wife’s knowledge in the same year and, subsequently, obtained an order from the Seremban Syariah Court for custody of the
children.

On April 7, 2014, the Seremban High Court granted Deepa custody of the children. Two days later, Izwan was alleged to have taken the son from Deepa’s home.

Meanwhile, the same panel allowed the appeal brought by Izwan, the Inspector-General of Police and Attorney-General to set aside a recovery order issued by the High Court to direct the police to locate Izwan and return the son to Deepa.

Justice Raus said the IGP was right in not acting on the recovery order as there were two conflicting custody orders, one obtained by Izwan from the Syariah Court and the other by Deepa from the Civil High Court.

He said it was impossible for the IGP to execute the recovery order because, in doing so, it would result in contempt of court of the other order.

Outside the court, Deepa burst into tears. She said she was sad because she did not get custody of her son and was dissappointed with the Federal Court decision but would abide by it.

Deepa, who is the only remaining Hindu in her family after her mother and siblings converted to Islam, said she had wanted her children to grow up together.

Izwan said he was happy with the Federal Court decision to grant him custody of their younger child.

“I really agree with the decision because if the court gives both kids to Deepa, then I would feel upset because both are also my kids, and if I get both the kids, Deepa would also be upset,” he said.

He was all smiles with his five-month pregnant wife Sasi Begum Abdullah by his side.

They kissed Izwan’s son on his cheeks simultaneously.

Izwan said his ex-wife’s family had converted to Islam but only Deepa had not.

Izwan’s counsel, Mohamed Hanif Khatri Abdulla, said the court verdict yesterday did not decide on the conversion of the children. — Bernama