I’m dumbfounded with the leaders of our community, who are rejoicing with the Federal Courts decision on Deepa’s case when there are clear violation of Deepa’s rights.
1. We should praise the Federal Court for ruling that the custody of children converted to Islam was a matter strictly for the civil courts and not for the country’s Syariah Courts to decide. The ruling of a five-man bench chaired by Justice Raus Sharif that a non-Muslim marriage did not dissolve when one party chose to embrace Islam.
Justice Raus said that the highest court in Malaysia had exclusive jurisdiction to hear custody cases even if one spouse converted to Islam under the Law Reform (Marriage and Divorce) Act. “It’s about a civil marriage. The Syariah Court has no jurisdiction to declare an annulment of a civil marriage and to give a custody order,” said Justice Raus.
However I disagree with the statement by some political leaders that with this ruling that trap door is shut and it is only the civil court that may deal with the issue of custody. The decision today could still allow converting spouses to abuse the Shariah Court system and erode the different jurisdictions of the Syariah and civil court system in the Constitution unless constitutional amendments are made to the same effect.
2. I am really disappointed with some political leaders and community leaders, especially from MIC (President, Women Leader & Youth Leader) who seems to praise the judges via press statements for their wisdom for deciding Izwan Abdullah, to be given custody of his eight-year-old son while S. Deepa was granted custody of their 10-year-old daughter.
2a) Technically speaking, a child has no legal ‘right to choose’. By definition, minors are “legal incompetents.” This means that they are not recognized by the court as being able make legally binding decisions, including decisions regarding their custody. In addition, it will be in the best interests of each child to keep the brother and sister together.
2b) In addition, the father Izwan Abdullah forcefully abducted his son who was only 6 years old at the time. After two years spending time away from the mother without even meeting once during the period (ample time to brainwash), how would a 8 year old child will tell the judges that he would want to be with the mother that he has not seen or talked for the past two years? There is also documented history of domestic violence by Izwan Abdullah. The judges failed to take into consideration the above two points when they decided that dividing the custodial rights was the “best thing to do” for the children.
2c) No one can deny, if this was normal custody case without involving conversion to Islam, the mother, Deepa would have been granted the custody of both children however in this case the Court’s ruling failed to address the legal rights that appeared to favour the converted spouse.
The decision by the Federal Court will now serve as loop hole to further encourage unilateral conversion by one spouse. The Court’s ruling has failed to fully protect the rights of non-converting spouse and her children, and contravenes the Federal Constitution and its guarantee of equality.
2d) The court ruling also can be taken as legitimisation of the former husband’s kidnapping of the son. The decision also failed to take into account the former’s direct disregard of the High Court order that awarded custody of both children to Deepa.
Majlis Gagasan Malaysia
(MIC Branch Chairman)