Kindergarten teacher M. Indira Gandhi (pic) must go to the Shariah Court to challenge a custody order given by the religious court to her estranged husband, the High Court was told today.
Lawyer Asmuni Awi, who was appearing for Indira’s ex-husband Muhammad Ridzuan Abdullah (formerly known as K. Patmanathan), said disallowing non-Muslims to defend their rights in the Shariah Court was not consistent with Islamic law.
"It will tarnish the image of Islam in the eyes of non-Muslims," he said when making submissions in a contempt proceeding brought by Indira Gandhi against Ridzuan who had converted to Islam.
He subsequently converted their children – Tevi Darsiny, 16, Karan Dinish, 15, and Prasana Diksa, 5 – and obtained custody from the Shariah Court in September 2009.
Indira obtained her custody order from the High Court in 2010.
However, Ridzuan refused to return their youngest child, Prasana Diksa, to Indira, and has been holding on to the child since April 2009 when she was 11 months old.
Asmuni said Indira could appear in the Shariah Court as the Shariah Court Civil Procedure (Perak) 2004 stated that the religious court was duty bound to prevent injustice and abuse of court process.
He said the Shariah Court was the proper forum to resolve whether it had jurisdiction in granting the order to Ridzuan and this would be known if the validity of the order was challenged by Indira.
"It is not for the High Court to rule or give opinion that Indira is not allowed to appear in the Shariah Court. This is only possible if she appears in the religious court," he said.
He said it was premature and unfair for the High Court to cast aspersions by ruling that a non-Muslim could not appear in the Shariah Court.
"It is not for the courts to legislate to provide a remedy. The role of the court is to interpret the laws and give effect to the purpose as to why a legislation was enacted," he said.
He said contempt must be established beyond reasonable doubt and it must be shown that the act of disobedience was deliberate.
Asmuni said Ridzuan did not show disrespect to the 2010 High Court order because he had acted based on legal advice provided by his counsel.
"After all, the High Court is not superior to the Shariah Court as both are of equal standing under the Federal Constitution," he said.
Asmuni said the custody order of the Shariah Court was issued by a competent authority and the civil court could not interfere as the subject matter came under the jurisdiction of the religious court.
Lawyer Lim Heng Seng, who appeared for the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism said a Federal Court ruling on unilateral conversion had held that a Shariah Court order which was in conflict with a civil court order was ineffective.
Lim, who appeared as amicus curae (friend of the court) on the invitation of High Court judge Lee Swee Seng, said Ridzuan could not run away from his responsibility arising from the civil marriage by converting to Islam.
He said the apex court had also held that a non-converting spouse could not be compelled to go the Shariah Court.
"But the spouse who had converted can come to the civil court," he added.
Counsel Philip T.N. Koh, who appeared with Lim, said although Islam was the religion of the federation, it did not render Malaysia to be non-secular .
On July 25 last year, Lee, in a landmark decision, quashed the certificates of conversion of the three children and ruled that the documents were null and void because they were unconstitutional.
He said under the Perak state enactment, it was a statutory requirement for a child to be present before a certificate of conversion could be issued.
He also cited provisions under the Perak Shariah law, which require the children to be present to utter the affirmation of faith (Kalimah Dua Syahadah).
Indira married the then Patmanathan 20 years ago according to Hindu rites.
Lee will deliver his ruling whether Ridzuan is guilty of contempt of court on May 30. – April 16, 2014.
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