Civil court should decide on custody of converted children, Federal Court rules

S. Deepa will continue to have custody over her daughter Sharmila, while her former husband, Izwan Abdullah, over their son, the Federal Court rules today. – The Malaysian Insider pic by Kamal Ariffin, February 10, 2016.The Federal Court ruled today that it is the civil court that should decide the custody of children who were converted to Islam.

A five-man bench chaired by Tan Sri Raus Sharif said a non-Muslim marriage did not dissolve when one party embraced Islam.

“Divorce and custody of non-Muslim marriages are exclusive jurisdiction of the civil court,” he said in dismissing Izwan Abdullah’s appeal.

Raus said a non-Muslim spouse could not abuse his conversion to Islam to escape his obligation.

The bench, however, ruled that in this case, S. Deepa would continue to have custody over her daughter Sharmila while Izwan over Mithran.

“Both are quite settled with their parents. The parents could have access to their children” Raus ‎said after the judges met the children in chambers earlier.

Raus said Izwan abused the Shariah Court process when the religious court had no jurisdiction over Deepa, a non-Muslim.

“The Shariah Court only has jurisdiction in marriage and divorce when both parties are Muslims,” he said.

Raus said the religious court and civil court should be reminded that they should not transgress on each other's role.

“Both must look in to the laws made by Parliament and state legislature and must comply with the Federal Constitution,” he added.

Raus said the Seremban High Court should not have issued a recovery order under the Child Act because the custody order from the Shariah Court was also recognisable under civil law.

The bench set aside the High Court recovery order and revoked the Shariah Court custody order.

It went on to vary the High Court's custody order where both children were supposed to be under the care of Deepa.

Raus said the variation order was made as the children were settled well in their present environment.

"We are guided by the best interest of the children as stated under section 88 (1) of the Law Reform Act (Marriage and Divorce) 1976," he added.

Both parents could visit their children at the home of Deepa's mother, Siti Aishah Abdullah, in Jelebu once in two months between 10am and 3pm.

Further, the parents and children could communicate over telephone without restrictions.

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.

However, Izwan abducted the Mithran two days after the High Court order, resulting Deepa lodging a police report.

Deepa later obtained a discovery order on May 21, 2014 from the High Court to compel Inspector-General of Police Tan Sri Khalid Abu Bakar to locate and return Mithran to her.

Khalid said he could not comply as there were two conflicting custody orders. – February 10, 2016.