One Step Forward, Half-a-Step Back

Trevor Padasian analyses the Deepa interfaith custody battle.
In a fiery field fraught with bitter conflict and undignified custody battles over innocent children, the Federal Court’s decision in Viran a/l Nagapan v Deepa a/p Subramaniam1 (“Deepa’s Case”) finally rose from the ashes with undoubtedly mixed results.
The Federal Court decided, firstly, that the civil courts in Malaysia continue to have jurisdiction in respect of divorce as well as custody issues arising from a civil marriage despite the conversion of one spouse to Islam and, secondly, that a non-Muslim marriage does not automatically dissolve upon one of the spouses converting to Islam.
However, the Federal Court in Deepa’s Case then in effect went on to allow a custody order issued by the Seremban Syariah High Court (“Syariah Court”) to prevail over a recovery order issued by the Seremban Civil High Court (“High Court”), thereby rendering otiose the jurisdiction of the High Court. This prevented the non-converting spouse from recovering a child in respect of whom the High Court had granted her custody.
The converting spouse, Viran a/l Nagapan (“Viran”), and the non-converting spouse, Deepa a/p Subramaniam (“Deepa”), contracted a civil marriage under the Law Reform (Marriage and Divorce) Act 1976 (“LRA”). They had two children from the marriage, a girl named Shamila a/p Viran (“Shamila”) and a boy named Mithran a/l Viran (“Mithran”).
On 26 November 2012, Viran converted to Islam at Pusat Dakwah Islamiah, Paroi, Negeri Sembilan and changed his name to Izwan bin Abdullah. He then registered the conversion to Islam of the two children, Shamila and Mithran at the same premises without Deepa’s knowledge or consent.
Upon his conversion, Viran had applied for the dissolution of his civil marriage to Deepa at the Syariah Court. An order for the dissolution of the civil marriage was granted by the Syariah Court on 15 May 2013 pursuant to section 46(2) of the Islamic Family Law (Negeri Sembilan) Enactment 2003.
On 26 August 2013, Viran was granted a temporary custody order of the two children by the Syariah Court. Subsequently, on 19 September 2013, the Syariah Court granted a permanent custody order of the children to Viran but allowed Deepa to have visitation rights and access to them (“Syariah Court Custody Order”).
Deepa filed a petition for divorce at the High Court and for custody of the two children on 12 December 2013. On 7 April 2014, the High Court dissolved the civil marriage between Viran and Deepa and granted permanent custody of both children to Deepa (“High Court Custody Order”). Viran was granted weekly access to the children.
On 9 April 2014, Mithran was taken away from Deepa’s house by Viran without Deepa’s knowledge or consent. Deepa then applied to the High Court for a recovery order pursuant to section 53 of the Child Act 2001. The High Court granted Deepa’s application and made the following orders (collectively, “Recovery Order”) directing the Inspector General of Police and/or his officers:-
(a)     to enter Viran’s residence or Taska ABIM Nur Ehsan or any premise to recover Mithran;
(b)     to take custody of Mithran and to return him to Deepa’s custody and control immediately;
(c)     to remove Mithran from Viran’s custody or from anyone having custody and control of Mithran; and
(d)     to execute the High Court judgment irrespective of the Syariah Court order which had granted custody to Viran.
Viran filed two appeals. One appeal was against the decision of the High Court in granting custody of the two children to Deepa and the other, against the Recovery Order. Both appeals were heard together by the Court of Appeal.
On 17 December 2014, the Court of Appeal dismissed both appeals. The Court of Appeal affirmed the decision of the High Court in respect of the High Court Custody Order as well as the Recovery Order.
On 14 January 2015, the Federal Court allowed Viran’s application for leave to appeal to the Federal Court on two questions of law:
Leave Question 1

 “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 High Court on the basis that it has jurisdiction to do so, whether there is jurisdiction for the other court to make a conflicting order.” 
Leave Question 2
“Whether on the interpretation of sections 52 and 53 of the Child Act 2001, a Recovery Order can be made when there exists a custody order given by the Syariah Court which is enforceable at the same time.” 
As adumbrated in the introduction, the Federal Court decided, in answer to Leave Question 1, that the civil courts have the exclusive jurisdiction in respect of divorce and custody issues in a civil marriage. It forcefully held that it is an abuse of process for a spouse who had converted to Islam to file for dissolution of the civil marriage and for custody in a Syariah Court. The Syariah Court’s order in dissolving the marriage of Viran and Deepa and granting custody of the children to Viran was of no effect due to want of jurisdiction.2
The Federal Court then went on to decide whether the High Court (affirmed by the Court of Appeal) was right in granting custody of both children to Deepa. In an unprecedented move, the Federal Court interviewed Shamila and Mithran in their chambers to determine whether the chidren wished to live with their mother or father. Shamila said that she was very happy to be with her mother whereas Mithran was very clear that he was happy to live with his father. As a result, the Federal Court varied the High Court Custody Order to the effect that Shamila remained with Deepa and Mithran was to be in Viran’s custody.
The Federal Court may have taken this step as it had acknowledged that a change in circumstances had occurred as Mithran had been taken away by Viran two days after (and in breach of) the High Court Custody Order and had been living with his father ever since. On the other hand, Shamila had remained with her mother.3 
Leave Question 2 was answered in the negative. The Federal Court opined that as there were two custody orders, the earlier Syariah Court Custody Order and the subsequent High Court Custody Order, the High Court should not have entertained Deepa’s application to recover Mithran from Viran. It expressly acknowledged that the Syariah Court had no jurisdiction to make a custody order in the circumstances of this case but said that the Syariah Court Custody Order remained valid until it is set aside.
Leave Question 1
In affirming the decision of the High Court and the Court of Appeal on the issue of the civil court’s jurisdiction over divorce and custody issues arising from a civil marriage and the principle that the Syariah Court has no jurisdiction to dissolve a civil marriage, the Federal Court had correctly followed one of its earlier decisions, the celebrated Subashini a/p Rajasingam v Saravanan a/l Thangathoray and other appeals4.
The Federal Court held that Article 121(1A) of the Federal Constitution which provides that the civil courts shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts was clearly introduced not for the purpose of ousting the civil courts’ jurisdiction. It was introduced for the purpose of avoiding any conflict between the Syariah Courts and the civil courts. The LRA continues to bind a converting spouse despite his or her conversion to Islam.
What is interesting is the Federal Court’s unprecedented and last-minute decision to interview the children in chambers to ascertain their preference with regard to custody. In deciding on custody, the Federal Court relied, amongst others, on section 88(2) of the LRA5 to have regard to, in addition to the wishes of the parents of the children, the wishes of Shamila and Mithran. This is quite unusual.
It is the usual practice in custody cases here in Malaysia as well as other Commonwealth countries6 for a welfare report assessing the best interest of the children to be prepared by experts in child psychology or welfare in advance of the court’s decision on custody. These experts would be in a better position to advise the court in respect of the custody of the children. The Federal Court’s decision in Deepa’s Case to interview the children may lead to a departure from this established practice. One course of action that could have been taken was to remit the case back to the High Court to enable the welfare report to be prepared, the experts to testify and then the children to be evaluated.
Leave Question 2
The Federal Court’s refusal to enforce the Recovery Order is surprising not only because it had acknowledged that the Syariah Court had no jurisdiction to make the Syariah Court Custody Order. In effect, such refusal coupled with its order granting custody of Mithran to Viran meant that Viran was not punished for disobeying the High Court Custody Order; instead he who had come to court with unclean hands was ultimately rewarded with custody of Mithran. 
Although Deepa’s Case received much press coverage and was followed closely by 14 public interest groups that held watching briefs in the proceedings as it wound its way through the courts, the decision itself does not break new ground from a legal perspective. In confirming the jurisdiction of the civil courts to determine dissolution and custody issues in a civil marriage notwithstanding the conversion of one spouse to Islam, the Federal Court applied the law that had been laid down by the apex court of Malaysia in the earlier decisions of Tang Sung Mooi and Subashini.
The decision not to enforce the Recovery Order resulted in a situation similar to that in the Court of Appeal’s decision in Ketua Polis Negara v Indira Gandhi a/p Mutho7. In both cases, the recovery orders made by the High Court in respect of minor children could not be enforced despite the stand by the court in each case that the High Court had jurisdiction over the civil marriage.
The issue of unilateral conversion of minor children from the marriage was not considered in Deepa’s Case as it was not in issue before the Court. Perhaps this issue may be determined if the Federal Court grants leave to appeal on this issue in Pathmanathan Krishnan v Indira Gandhi Mutho & Other Appeals8.
1  Federal Court Civil Appeal Nos. 02(f)-5-01-015, 02(f)-6-01-015 and 02(f)-4-01-2015(N) – Judgment delivered on 10 January 2016.
2  Paragraphs 31 and 32 of the Judgment.
3 Paragraph 46 of the Judgment.
4 [2008] 2 MLJ 147. Subashini had in turn followed the Supreme Court decision of Tang Sung Mooi v Too Miew Kim [1994] 3 MLJ 117.
5In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard - (a) to the wishes of the parents of the child; and (b) to the wishes of the child, where he or she is of an age to express an independent opinion.”
6 Malaysian Bar’s Press Release dated 22 February 2016 “The Exclusive Jurisdiction of the Civil Courts on Constitutional Issues and Statutory Rights Must be Preserved, Upheld and Exercised Wisely.
7  [2015] 2 MLJ 149.
8  [2016] 1 CLJ 911.