PUTRAJAYA - It amounts to an abuse of process for a Muslim-convert spouse to file for custody in the Syariah courts when the children are of a non-Muslim marriage, the Court of Appeal here was told.
Lawyer for S. Deepa, Fahri Azzat, submitted that this was because the Syariah courts had no jurisdiction in the matter of the custody of children of non-Muslim marriages. Citing a prior Federal Court decision, Fahri said the civil High Court had exclusive jurisdiction in the divorce matters of a marriage solemnised under the Law Reform (Marriage and Divorce) Act.
He said even if one spouse converted to Islam during the marriage, the marriage itself was defined as a non-Muslim marriage and governed under the Law Reform Act.
Deepa's ex-husband, Izwan Abdullah, is appealing against a Seremban High Court decision to give custody of the couple's children to Deepa and order that he return their son Mithran to the mother.
The decision overrode an April 2012 Syariah Court order granting Izwan custody of the children - Nur Nabila @ V. Sharmila, nine, and Nabil @ V. Mithran, six.
Izwan, formerly known as N. Viran, unilaterally converted the children without Deepa's knowledge in April 2012. Fahri said Izwan's actions sought to impose the Syariah Court orders on Deepa, even though Islamic law was a personal law that is foreign to her since she is Hindu.
"The Syariah Court is also constitutionally prohibited from hearing her (Deepa) and yet has deprived the Respondent (Deepa) custody of her children of her non-Muslim marriage.
"Thus, her ability to profess and practise Hinduism are directly affected by these unconstitutional Syariah Court orders," submitted Fahri.
Izwan's counsel Haniff Khatri argued that according to Section 1(3) of the Guardianship of Infants Act, the civil court has no jurisdiction to entertain custody applications made by a non-Muslim spouse against a Muslim spouse, therefore the High Court had erred in giving custody to Deepa.
The Court of Appeal lead by Justice Abdul Aziz Abdul Rahim set Dec 17 to decide on custody rights, and adjourned a second, related appeal on whether Izwan would be required to return the children to their mother.