Top KL court rules on divorce and custody for non-Muslims

Malaysia's Federal Court ruled yesterday that the civil court has exclusive jurisdiction over divorce and custody matters for non-Muslim marriages.

A five-man bench chaired by Court of Appeal president Justice Raus Sharif said a non-Muslim spouse could not abuse his conversion to Islam to escape his obligations. "Divorce and custody of non-Muslim marriages are exclusive jurisdiction of the civil court.

"The Syariah Court only has jurisdiction over marriage and divorce when both parties are Muslims," Justice Raus said.

The judge was commenting in reference to a protracted custody battle between a Hindu woman, Ms S. Deepa, and her former husband, Muslim convert Izwan Abdullah, who converted their two children Sharmila (Nurul Nabila), 11, and Mithran (Nabil), eight, to Islam without her consent.

While the new ruling favoured Ms Deepa, the panel decided to split the custody between the parents, with Ms Deepa having custody of their daughter Sharmila and Mr Izwan of their son Mithran.

"Both are quite settled with their parents," Justice Raus said after the judges met the children in chambers earlier.

In April 2012, Mr Izwan had unilaterally converted the children to Islam without Ms Deepa's knowledge. The Syariah Court had then granted him custody of both children but the judgment was reversed by the Seremban High Court on April 7, 2014.

Two days later, Mr Izwan abducted Mithran and has kept him ever since.

The Women's Aid Organisation (WAO) slammed the court for awarding Mr Izwan custdial right over Mithran, arguing that it only validates the violent abduction.

"The Court failed to take into account his direct disregard of the original Order of the High Court that awarded custody of both children to Deepa, as well as the well-documented history of domestic violence in this case," WAO president Carol Chin said in a statement.

The decision may encourage more unilateral conversions by one spouse and undermine the rights of the child, she warned.

The ruling yesterday will have bearing on other custodial battles between non-Muslims and Muslim converts, including a pending case filed by kindergarten teacher M. Indira Gandhi.

Ms Gandhi had challenged the unilateral conversion of her three children to Islam by her ex-husband Muhammad Riduan Abdullah, previously known as K. Patmanathan.

The Court of Appeal decided on Dec 30 last year that issues regarding Muslim conversion were exclusively under the jurisdiction of the Syariah Court.

Ms Gandhi's lawyer, Mr M. Kula Segaran, welcomed the latest ruling. "In view of Deepa's case, Indira's case has to be relooked at, the ruling on the civil court's jurisdiction over non-Muslim marriages is favourable to us," Mr Kula Segaran told The Straits Times.

But he argued more could be done to reduce marriage conflicts between non-Muslims and Muslim converts.

"The Law Reform (Marriage and Divorce) Act has to be strengthened to avoid future disputes so that marriages under civil law must be settled in civil court. The Cabinet has promised to make amendments to this Act and these promises must be kept," he said.

This article was first published on Feb 11, 2016.
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