The Federal Court says in the case of S. Deepa v. Izwan Abdullah, the Shariah court custody order is valid until it is set aside. – The Malaysian Insider file pic, February 15, 2016.The Federal Court said a custody order issued by the Seremban Shariah court to Muslim convert Izwan Abdullah is valid even though religious courts have no jurisdiction to dissolve civil marriages.
Judge Tan Sri Raus Sharif said a custody order by the Shariah court was lawful under section 52 (2) of the Child Act.
"We are of the view that, in light of the existence of the two conflicting custodial orders, the High Court judge should not have entertained the application of the ex-wife (S. Deepa) for the recovery of Mithran from her ex-husband," Raus said in the judgment released today.
On February 10, the five-man bench led by Raus allowed appeals by Izwan, the Inspector-General of Police and the Attorney-General against the Court of Appeal decision that police should have acted on the High Court recovery order.
The Shariah court issued a custody order to Izwan on September 19, 2013 after he had converted both his children, Sharmila (Nurul Nabila) and Mithran (Nabil)
On April 7 the following year, the High Court granted Deepa custody of her children, but two days later, Izwan snatched Mithran (Nabil) from his her.
She then obtained a recovery order from the Seremban High Court on May 21, 2014.
Raus said the bench acknowledged that Shariah courts have no jurisdiction in this case to make the custody order.
(The bench had also pronounced on February 10 that it is the civil court that decides on divorce and custody of a civil marriage even if a spouse had embraced Islam.
The apex court also made it it clear that the Shariah court has jurisdiction to decide on matrimonial matters only when both parties were Muslims.)
"However, the Shariah court order remained a valid order until it is set aside. Thus, with respect, the High Court judge, cannot direct the IGP or his officers to execute the High Court judgment, irrespective of the Shariah High Court order," he added.
Raus said on the facts of this case, both the Shariah High Court and Civil High Court Order bound the IGP and his officers either way.
"Clearly, the execution and performance of one order is impossible without being in contempt of the other," he added.
"In conclusion, we are of the view that the recovery order should not have been given because the pertinent element under section 52 of the Child Act had not been fulfilled," he said.
In allowing the appeal against the recovery order, the bench also set aside the orders of both courts.
The bench on February 10 had also varied the High Court custody order to give custody of Mithran to the father while Deepa retained the daughter. - February 15, 2016
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