The Shariah court lacks jurisdiction over custody cases in a civil marriage even if one party later converts to Islam, they added.
“If the Shariah court pronounces Islamic divorce on an Islamic marriage, then it can make orders on custody. But it has no jurisdiction over a civil marriage,” prominent lawyer Malik Imtiaz Sarwar told The Malay Mail Online.
“Under the civil law which is the Law Reform (Marriage and Divorce) Act, the court that has the jurisdiction to make the determination on the civil marriage is the civil high court, that would include any orders pertaining to custody and so on,” he added.
In the Seremban case, Viran Nagapan married Deepa Subramaniam (pic above) in a civil marriage in 2004. Viran later converted to Islam in 2012 and took on the name Izwan Abdullah.
A Shariah court granted Izwan custody of the couple’s children last year.
On Monday, the Seremban High Court’s Justice Datuk Zabariah Mohd Yusof granted Deepa full custody of the couple’s two children as their marriage was a civil union and did not come under Shariah law.
The court also allowed Deepa to divorce her husband.
Just two days after losing the custody battle, Viran allegedly abducted his son from Deepa.
Viran’s action on Wednesday had since been backed by the Negri Sembilan chapter of Islamist group Ikatan Muslimin Malaysian (Isma), with its state deputy chief Omar Kassim claiming that Viran was “desperate” and was not in contempt of the court.
But citing the Federal Constitution’s Ninth Schedule, lawyer Nizam Bashir said that a Shariah court only has jurisdiction over Muslims.
A non-Muslim parent would not be given a chance to defend his or her rights in a Shariah court, he added.
Nizam explained that a civil court would be a more appropriate venue for both Muslim and non-Muslim parents to decide on child custody, as it safeguards the interests of both parties.
“If you have the matter heard in the civil court, both parties have the right to be heard. Both parties have the right to impart religious instruction to the child,” the experienced syarie lawyer told The Malay Mail Online.
Constitutional lawyer Edmund Bon also added that the Seremban HIgh Court ruling was made after taking into account the custody order by the Shariah court.
“The High Court, being a civil court, has a jurisdiction applicable to all parties. The High Court has the power to review or ignore the previous Shariah court order,” Bon said in a telephone interview.
On Wednesday, Bon, representing the Bar Council, was an expert witness in a high-profile child custody battle of a similar nature in the Ipoh High Court.
In the case, M. Indira Gandhi’s estranged husband who had converted to Islam ran away with the couple’s child.
According to Bon, the Bar Council’s stand is that the High Court could quash the Shariah Court’s custody order, as the latter is an “inferior tribunal”.
Bon also insisted that the civil court’s order should have been enforced accordingly, and Viran could not have used the Shariah court’s order as an excuse to abduct the child.
“In any event, from the reported incident, it appears to be a case of kidnapping or abduction,” said Bon.
Malik said that a parent who knowingly flouts a custody order could be in contempt of court, saying: “In general, if the court has made an order granting custody to one parent, if the other parent takes the child and breaches the order, it’s in violation.”
Deepa is expected to file for committal soon, which may allow the civil court to issue a warrant to arrest Izwan for contempt of court.
It is understood that Viran, who currently works for an Islamic NGO called Kasih Sayang, had converted both their children in April last year without Deepa’s consent.
Deepa, who filed for divorce and custody of the children in December last year, has been estranged from her husband since 2011.
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