The Malaysian Consultative Council Of Buddhism, Christianity Hinduism, Sikhism & Taoism (MCCBCHST) welcomes the decision of the Federal Court in S Deepa's case which was delivered this morning.
The Federal Court held that it is the civil court that had the jurisdiction and therefore should decide the custody of children who were converted to Islam. The Federal Court added that "divorce and custody of non-Muslim marriages are the exclusive jurisdiction of the civil court."
Court of Appeal president Justice Md Raus Sharif, who chaired the five-member panel of the Federal Court, stated that “a non-Muslim spouse could not abuse his conversion to Islam to escape his obligation.”
The above decision of the Federal Court - although belated by seven years - has reconfirmed the Federal Court’s earlier decision in the Tan Sung Mooi v Too Miew Kim [1994] 3 CLJ 708 case where it had held: "In the context of the legislative intent of Section 3 and the overall purpose of the act, the respondent's legal obligations under a non-Muslim marriage cannot be extinguished or avoided by his conversion to Islam.”
The problem persisted until now after Tan Sung Mooi’s case due to the following:
- The Syariah courts began to assume jurisdiction over conversion cases arising out of a non-Muslim marriage, although they did not have the jurisdiction (as confirmed by the Federal Court in Deepa's case).
The latest Court of Appeal decision late last year in Indira's case - where it held that they had no jurisdiction in conversion cases, although the marriage was between non-Muslims and done in a civil court - is a case in point .
The Federal Court's ruling that Deepa would continue to have custody over her daughter Sharmila, while her former husband Izwan Abdullah (N Viran) will have custody over son V Mithran, is to be understood as being based on the facts of this case, as it found that both children were quite settled with their parents.
Thus, this decision cannot be used as a precedent in future cases to deny custody of children to the non-converting spouse.
The MCCBCSHT hopes that the Syariah courts would take notice of this decision, when the Federal Court had clearly stated that Syariah courts only have jurisdiction over conversion cases where “both parties are Muslims.”
The MCCBCHST also hopes that the civil courts will take notice of this judgment, and not refuse jurisdiction in further such cases.
JAGIR SINGH is vice-president of the Malaysian Consultative Council Of Buddhism, Christianity Hinduism, Sikhism & Taoism (MCCBCHST).