KUALA LUMPUR, Feb 15 — The Federal Court said it granted S. Deepa’s ex-husband custody of their son because he was found to have been well cared for, despite the Hindu woman’s complaints of domestic violence against the Muslim convert.
In a written judgment penned by Court of Appeal president Tan Sri Raus Sharif released today, the apex court also said that Deepa’s and Izwan Abdullah’s eight-year-old son, Mithran, had told the five-man Bench “in clear terms” that he was very happy to live with his father.
“He also told us that he does not wish to live with his mother,” Raus said.
“Mithran is now eight years old. He introduced himself as Nabil bin Abdullah. We found him capable enough to express his independent opinion and to decide his preference whether to live with his father or mother,” he added.
The judge said the Federal Court awarded custody of the estranged couple’s 11-year-old daughter, Shamila, to Deepa because the girl said she preferred to live with her mother.
“She also informed us that she is now residing with her mother in Johor Baru, and is a student at an International School there. She said she is very happy to be with her mother and does not wish to live with her father,” said Raus.
Raus said after the interviews with the children, the Federal Court found that they were “certain of their choices”.
“We also found both children have settled down and are well cared for respectively. We are of the view that taking into consideration the welfare of the children as of paramount importance, it is undesirable to disturb the present arrangement,” he said.
Deepa had, on April 7, 2013, won custody of both her son and daughter at the Seremban High Court, but Izwan ― formerly a Hindu ― snatched the boy from his ex-wife two days later.
Izwan had then justified the snatching with a 2012 Shariah Court order that granted him custody of the two children after he had converted them to Islam without their mother’s knowledge, although the civil Court of Appeal upheld in 2014 the Seremban High Court’s custody order.
The Federal Court also said in its written ruling that the civil High Court should not have entertained Deepa’s application to recover her son from her ex-husband, as the Shariah High Court order granting custody of both children to Izwan remains valid until it is set aside.
“Section 52(2) of the Child Act explains the meaning of the phrase ‘lawful custody of a child’. A person is said to have lawful custody of a child if he has been conferred custody of the child by virtue of any written law or by an order of a Court including a Shariah Court,” said Raus.
“Thus, with respect, the High Court Judge, cannot direct the IGP or his officers to execute the High Court Judgment, irrespective of the Shariah High Court Order. Thus, on the facts of this case, both the Shariah 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,” the judge added, referring to the Inspector-General of Police.
