ICC NOTE: In the latest court hearing between parents of differing faiths and the custody of their children, the findings could be substantial towards future court hearings pertaining to religion. In a previous case, M. Indira Gandhi a Hindu mother filed for custody of her children from her former Muslim husband. The husband has converted the children to Islam placing the case in a Sharia court. The current case involving S. Deepa, the mother, and her former husband Izwan (a Muslim) is also a custody case but this one is being decided on whether it can be heard in civil court. A civil court would likely provide a more impartial hearing compared to a Sharia court which would likely vote in favor of the Muslim fathers. The ramifications of this case could set a precedent for future cases including Christian family members and or Christian plaintiffs.
2/9/2016 Malaysia (Malaysia Insider) – The decision of the apex court will be of interest to many, including the legal fraternity, as it will have a bearing on the Court of Appeal ruling in a similar case involving M. Indira Gandhi that conversion matters must be heard in the Shariah Court.
Lawyer Mohamed Haniff Khatri Abdulla, appearing for Muslim convert Izwan Abdullah, said the Federal Court informed parties of the judgment date early this week.
“Both parents will have to bring along the children under their custody as instructed by the court earlier,” he told The Malaysian Insider.
The case to be decided tomorrow involves S. Deepa, who filed for custody after her former husband Izwan converted Sharmila (Nurul Nabila), now 11, and Mithran (Nabil), 8, to Islam.
A five-man bench chaired by Tan Sri Md Raus Sharif, who is also Court of Appeal president, heard submissions from lawyers for Deepa and Izwan on June 25 last year.
Haniff submitted that the civil court had no jurisdiction to hear the custody.
He told the bench that the Guardianship of Infants Act 1961 prohibited the civil court from making custody orders on Muslim children.
He also said section 51 (2) of the Law Reform Act 1976 only allowed the civil court to issue custody orders on non-Muslim children once a divorce petition was filed due to conversion to Islam by one of the spouses.
“The civil court (High Court) cannot decide on the custody issue because Izwan had unilaterally converted his children to Islam,” he said in the appeal brought by Izwan against a Court of Appeal ruling in 2014 granting custody of the children to Deepa.
Haniff said unlike Indira, Deepa did not contest the conversion.
But lawyer Fahri Azzat, who appeared for Deepa, told the Federal Court that the Guardianship of Infants Act was only applicable if the children’s parents were dead which was not the case here.
“It is the High Court that has the jurisdiction because the marriage of Deepa and Viran (now Izwan) was registered under civil law,” he added.
Fahri said although Izwan was a Muslim, he could submit to the civil court to settle all matrimonial issues with Deepa because the civil marriage was governed under the Law Reform (Marriage and Divorce) Act.
The lawyer said a shariah court was an inferior tribunal and the High Court had supervisory role over any religious court that acted beyond its jurisdiction.
On April 7, 2014, the Seremban High Court granted Deepa custody of the couple’s two children. The decision overrode an April 2012 Shariah Court order granting Izwan custody.