PUTRAJAYA, Dec 17 — Hindu mother Deepa Subramaniam successfully maintained the custody of her six-year-old son and nine-year-old daughter, after a three-judge panel at the Court of Appeal upheld the High Court’s decision on the case.
In a unanimous decision, Datuk Abdul Aziz Abd Rahman rejected the appeal by Deepa’s ex-husband Izwan Abdullah against a Seremban High Court decision; the Muslim convert claimed the civil High Court had erred in its decision on the custody order as he had been awarded custody by the state Shariah court.
The three-men panel also dismissed Izwan’s application to set aside the recovery order — in which the Inspector-General of Police Datuk Seri Khalid Abu Bakar and the Attorney-General’s Chambers (AGC) appeared as interveners — to return his son, whom Izwan had taken without Deepa’s permission.
In their decision, Justice Abdul Aziz said that Shariah High Court did not have the jurisdiction on a marriage solemnised under the civil law.
“While the High Court granted the dissolution of the marriage, it is our view that the Shariah Court has no jurisdiction relating to non-Muslim marriages aside from confirming the marriage was dissolved,” he said.
Basing the Federal Court’s decision in the legal tussle between R. Subashini and her Muslim convert husband T. Saravanan in 2007, Abdul Aziz also said that child custody would continue to be under the jurisdiction of the civil court.
The apex court had decided that as the marriage was then contracted under the Law Reform (Marriage and Divorce) Act 1976, dissolution of the marriage and custody of the children in the union falls in the jurisdiction of the civil courts.
“Therefore, the Seremban High Court has the jurisdiction to grant the custody... we have agreed to dismiss the appeal,” said Abdul Aziz.
The Court of Appeal judge added that the Civil High Court was the right platform to grant the custody order and ordered the ex-husband to pay RM10,000 in costs.
Meanwhile, in Izwan’s appeal against the recovery order, the appellate court rejected the arguments posed by the former’s counsel Mohamed Haniff Khatri Abdulla that his client had taken the son as he felt that the children “sustained emotional injuries”.
Izwan — formerly a Hindu by the name of Viran Nagapan — had snatched his son from Deepa’s house in Jelebu, Negri Sembilan on May 21, close to 48 hours after losing the custody dispute at the Seremban High Court in April.
The High Court also overturned a decision by the Shariah Court last year to award Izwan custody of the children after he had converted them.
Mohamed Haniff reasoned that Izwan was compelled to “take” the minor as the latter was trying “to save the faith of the children” and that they sustained “emotional injuries” under the Child Act.
“My client read news reports that the respondents will contest their children’s conversion to Islam and he found out that they were not attending religious classes,” he said.
The lawyer also added that the High Court, in granting Deepa custody of the children, did not make orders on their upbringing according to the faith they were converted into unilaterally.
Deepa’s lawyer, Aston Paiva, however retorted that there is “no evidence to show that Deepa was a bad mother”.
“This is only an excuse for the father... he wanted to save the faith of the child, but that does not constitute emotional injuries,” said Paiva.
“The husband cannot make law and order on his own terms,” he said.
Paiva added that the police are required to intervene and recover the child as Deepa had filed a police report stating that Izwan is a “violent man”.
Agreeing with the respondents, Abdul Aziz upheld the recovery order but granted a stay — which will lapse in three weeks — for Izwan’s lawyer to appeal against the decision on the recovery order at the Federal Court.
*A previous version of this article inaccurately reported that Deepa had custody of just one child. The error is regretted and has since been rectified.
