JUNE 16 — In Malaysia, issues concerning child custody can be messy and downright ugly — more so when it concerns one parent who is a Muslim and the other, a non-Muslim.
Two recent cases involving the children of non-Muslims and Muslim converts have raised eyebrows over the lack of political will by the authorities in addressing this long-standing matter.
In the case of M. Indira Gandhi, her estranged husband Mohd Ridzuan Abdullah, had in 2009, taken away their then 11-month-old daughter Prasana Diksa and converted her and her two siblings Tevi Darsiny then 12, and Karan Dinish, then 11, without the mother’s knowledge.
In 2010, the High Court granted custody of the three children to Indira. However, Mohd Ridzuan refused to return Prasana to Indira.
The matter became complicated when the Shariah High Court also granted Mohd Ridzuan custody of all three children.
Last month, the Ipoh High Court issued an arrest warrant against Mohd Ridzuan for contempt of court for failing to return Prasana to her mother.
The situation is the same in Seremban. The High Court had awarded custody of two children to their mother S. Deepa, after her ex-husband Izwan Abdullah, converted their children without her knowledge. But the Shariah Court had granted the father custody of his two children.
Inspector-General of Police Tan Sri Khalid Abu Bakar had come under scrutiny after he suggested the affected children should be placed in welfare homes as the police would not enforce orders from both the Shariah and civil courts as both had equal jurisdiction and as such it would be unfair to uphold one law against the other.
Article 121 (1A) of the Federal Constitution 1981 makes it clear that civil courts do not have the authority to preside over cases which the Shariah Court has jurisdiction over.
While the situation is ideal for cases involving disputes between parties who are solely Muslims and solely non-Muslims, there appears to be a lacuna where one party is a Muslim and the other is a non-Muslim.
This is not the first time Article 121 (1A) has come under scrutiny as there had been other cases in the past involving the same matter.
A similar dispute arose in the case of former bank clerk S. Shamala and her husband Dr Muhammad Ridzwan who embraced Islam and subsequently converted their two sons without her knowledge and consent.
Other cases which had come into contention in the past include that of Soon Singh v Perkim and Lina Joy v Majlis Agama Islam Wilayah Persekutuan where the issue of jurisdiction of courts over conversion issues came into question.
Universiti Malaya’s Academy of Islamic Studies senior lecturer Dr Siti Zubaidah Ismail had recently said that any solution had all this while caused uneasiness and dissatisfaction among certain quarters due to the win or lose issue.
Siti Zubaidah had said if the authority was given to either the civil or Shariah courts to try an issue, the other court was deemed “lost” and could not intervene.
Recently, Prime Minister Datuk Seri Najib Razak had also urged families involved in child custody cases to find a resolution at the Federal Court while Law Minister Nancy Shukri said the cabinet had ordered the Malaysia Islamic Development Department (Jakim) to push for more uniform Shariah laws in the country, including laws governing mixed faith disputes.
While the powers that be appear to be finding a middle path for affected parties, it remains to be seen whether any of these solutions will provide an inherent solution to all concerned.
I agree that the interest of children should come first in such cases but remedies should be put in place once and for all to prevent similar cases from cropping in the future.
Justice must not only be done, it must also be seen to be done.
*This is the personal opinion of the columnist.
