Wei Meng Lim-Kaaba points out three curiosities in the Deepa decision
There is reason, no doubt, for some elation at the decision of the Federal Court in the case of Viran a/l Nagapan v Deepa a/p Subramaniam which affirmed the jurisdiction of the civil courts over divorce, custody and ancillary matters between Muslim and non-Muslim spouses, such a situation normally arising where the husband converts to Islam after the marriage. In the instant case, the Federal Court decidedly referred to the relevant provision of the Islamic Family Law (Negri Sembilan) Enactment 2003, and ruled that the legislation clearly did not grant jurisdiction to the Syariah Court to dissolve the marriage as the marriage was not solemnized under Syariah laws. Rather, it was the Law Reform (Marriage and Divorce) Act 1976 which was applicable since the marriage took place under that Act and therefore the civil courts had jurisdiction. Equally important, the Court re-asserted earlier decisions of the Federal Court in regard to the interpretation of Art. 121(1A) of the Federal Constitution, that this provision was not intended to oust the jurisdiction of the civil courts, and therefore the Syariah Court does not have jurisdiction where one of the parties is a non-Muslim, even if the matter is under its jurisdiction.
Yet, as a real outcome, one could also be deeply disappointed. After a lengthy and laborious reaffirmation of what it considers as settled law concerning the civil courts jurisdiction, the Federal Court went on, rather summarily, to decide the case in ways which seems to undermine its own ratio decidendi.
In this regard, the Federal Court’s decision is rather curious in three critical aspects:
First, although the Federal Court held that the Syariah Court’s decision was of “no effect due to want of jurisdiction”, curiously, it did not move ahead itself to set aside the Syariah Court’s decision, or to declare it as not a decision being null and void, but rather gave effect to it by considering it as valid “until it is set aside”. If this is so, then the Court did, in fact recognize the concurrent jurisdiction of the Syariah Court.
Therefore, its answer to the first question of law – “Whether in the context of Article 121(1A) of the Federal Constitution, where a Custody Order is made by the Syariah Court or the Civil Court on the basis that it has jurisdiction to do so, whether there is jurisdiction for the other court to make a conflicting order”- would be a “yes”. Further, the decision of the Federal Court would also operate as an appeal from the Syariah Court’s decision varying the decision and overturning it on the question of custody of the children since the Syariah court had ruled that both children should go to the father. Much as one may appreciate the reluctance of the Federal Court to set aside decisions made in the religious courts system, there is no reason why on an issue of such constitutional importance, the Federal Court could not assume its role as a higher constitutional court to set aside what could be considered as an unconstitutional act on the part of the religious courts.
Second, despite holding that the civil courts have jurisdiction to decide on matters of divorce and custody between the Muslim and non-Muslim spouses, the Court ruled that the recovery order which was issued by the High Court based on its custody ruling “should not have been granted” in light of the conflicting order made by the Syariah Court. By ruling so, the Federal Court appears not only to give effect to the Syariah court’s order so as to block a recovery order of the civil court, but also impliedly places the Syariah Court’s decision at a hierarchically superior position to the civil court’s decision. The Federal Court’s pronouncement on this aspect of the case is curious as it clearly contradicts its own ruling that the Syariah Court had no jurisdiction in the case. The Federal Court went so far as to say that in light of the existence of two conflicting custodial orders, the High Court judge should not even have “entertained” the application of the ex-wife for the recovery order. It is difficult to understand why the Federal Court adopted such a hard view when recovery orders are merely means of enforcing valid decisions on custody.
Third, in regard to the matter of custody, it is somewhat curious that the Federal Court did not revert the case to the High Court to reconsider the issue, but rather assessed the factual situation to make a decision itself. The High court might have been in a better position to re-assess the best interest of the children as it could then call for child experts and other witnesses for a more in-depth assessment in light of the so-called “changed circumstances”.
While the Federal Court reiterated that the “welfare” of the child is of “paramount importance”, the decision to keep the current status quo was lacking in substantiating reasoning, and made almost entirely based on the need to avoid further disruption to the lives of the children. In its over-reliance on one factor alone, the Federal Court seems to have sacrificed a more wholesome approach to the principle of best interest of the child, ignoring the fact that the “change” in circumstances was perversely created by the appellant removing the son from the mother’s lawful custody, as well as the many other elements considered by the High Court, including the appellant’s “criminal activities”, and the respective living environment of the children which should have been assessed by child welfare experts and submitted to the Court.
A more long term evaluation which considers the upbringing of the children, rather than the short term one of minimizing disruption would have been a preferred approach in light of the young age of both children and the many more years they would have under the care of the parents. Certainly, “fair share” of the children between the parents should not be a factor as this would mean that the consideration was primarily the parents’ interests and risks treating the children as chattels. One may laud the judges for seeking the views of the children, but such views would better have been assessed by child experts outside a court’s intimidating atmosphere with a prior evaluation on the level of maturity of the children and the possibility of any undue influence by the parents. In any event, precedents on child custody cases show in general that the views of the child should not be the decisive factor.
Even though one may indeed applaud the Federal Court for clarifying the jurisdiction of the civil courts in matters of divorce and custody where one spouse converts to Islam, the net result of the decision falls far short on the critical issues, and one is left curiously wondering whether converted spouses may still with impunity, forcibly remove the children from the lawful custody of the other spouse and go to the religious courts to obtain custody decisions which would block the other spouse from benefiting from a conflicting decision of the civil courts. Hopefully, greater clarification may be forthcoming from upcoming cases so that one would know for certain if justice is actually done.
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