A brief summary of the Federal Court’s decision in the recent Deepa case.
The Grounds of Judgment of the Federal Court in the case of Viran Nagapan v Deepa Subramaniam are now available here, and from the Judiciary’s website. The Court of Appeal decision was explained here.
There were two questions of law before the Federal Court. At issue also was the custody of the 2 children.
1. The first question to the Federal Court, which was decided in a positive manner, was whether the civil court had exclusive jurisdiction to determine child custody matters. The Federal Court affirmed long standing law (dating from the Tang Sung Mooi case in 1994) that the civil court indeed had exclusive jurisdiction. This is shown at Paragraph 32, at page 19-20, where the Court answered Question 1 as follows:-
“32. … The Civil Courts have the exclusive jurisdiction to grant decrees of divorce of a civil marriage under the [Law Reform (Marriage and Divorce) Act 1976] and to make all other ancillary orders including custody care and access of the children born out of that marriage and all other matters ancillary thereto. It is an abuse of process for the spouse who has converted to Islam to file for dissolution of the marriage and for custody of the children in the Syariah Courts. This is because the dispute between parties is not a matter within the exclusive jurisdiction of the Syariah Courts. Therefore, Article 121(1A) of the Federal Constitution which deprives the Civil Courts jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts is not applicable in this case.”
This is a very positive statement, and most welcome, recognizing as it does the long standing status of the law. The Federal Court also dismissed an argument that Syariah courts had jurisdiction to disssolve a non-Muslim marriage under section 46(2) of the Islamic Family Law (Negeri Sembilan) Enactment 2003. It pointed out that this provision was only to “confirm” the dissolution of a non-Muslim marriage, and also relied on sections 4 and 45 of the same Enactment which prohibited orders against non-Muslims and only allowed divorces to be pronounced with respect to the marriages of Muslims under Islamic law.
2. The second question was whether the “Recovery Order” made under the Child Act 2001 was validly given in light of the Syariah court custody decision. This was an order under the Child Act 2001 directing the police to assist to help recover the child.
Here, the Federal Court appears to have muddied the waters when it stated that the Recovery Order was incorrectly granted because of the existing Syariah court order. The Court stated that the Syariah court order still subsists until it is set aside, but did not explain who was to set it aside. The Federal Court has therefore sanctioned the IGP’s refusal to comply with the Recovery Order and to assist the Hindu mother, stating the IGP’s position that he was bound by both Syariah Court and High Court orders was correct.
At paragraph 55, the Federal Court said this:
“55. … 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 for the recovery of Mithran from the ex-husband. We acknowledge that by our decision in relation to Question 1 above, the Syariah Courts have no jurisdiction in this case to make the custody order. However, Syariah 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 Syariah High Court Order.
“56. Thus, on the facts of this case, both the Syariah High Court Order and Civil High Court Order bind the IGP and his officers either way. Clearly, the execution and performance of one order is impossible without being in contempt of the other.”
3. The Federal Court also varied the decision of the High Court on custody citing “changed circumstances”. They split the two children, and left the son with the father and the daughter with the mother, which has been the de facto situation until now. The justification for the variation of the custody is set out by the Federal Court in their judgment at paragraphs 46 – 49.
Many have raised questions about the whether it was correct for the Federal Court Judges to interview the children separately in chambers, and have said that rewarding illegal behaviour in this manner is not correct.
The Federal Court does not comment at all about how the Father disobeyed the High Court order a few days after it ruled against him and took matters into his own hands, blandly describing the husband’s actions as “taking away” the son from the mother’s physical care. Even former Minister of Law had said that the police ought to have helped the Hindu mother recover the child.
Splitting the children has effectively rewarded the father who took the son away forcibly from the mother in defiance of the High Court order. It was thus a Pyrrhic victory, at best, for Deepa. Also, both her children were converted to Islam unilaterally, and even more questions now arise as to their upbringing.
With respect, the judgment, whilst positive in restating the law on the exclusive jurisdiction of the civil courts to determine issues of divorce and custody with regard to non-Muslim marriage, still leaves wide gaps within which unscrupulous husbands can manipulate the Syariah system in order to create problems for non-Muslim spouses and children.
The WAO‘s concerns are therefore quite valid: the Federal Court’s decision will, I fear, only embolden recalcitrant husbands to disobey Court orders and to unilaterally convert their children.
It remains to be seen whether the Syariah courts and authorities will come to their senses and stop helping these recalcitrant husbands, and whether Parliament and the various State Assemblies remedy the gaps in the law that cause these problems to persist.
Disclaimer: The writer was at one time on Deepa’s legal team and remains on the legal team for Indira, the other mother currently involved in a similar dispute.