The apex court also granted a stay of the child recovery order and contempt proceeding against Izwan after he brought the six-year-old son to court this morning.
With this, the son is to continue to stay with the father while Izwan's former wife, S Deepa (right), has been given custody of the daughter.By right, following the Seremban High Court order, custody to S Deepa, the mother, should have been maintained.
The stay order was granted by a five-member bench led by Chief Judge of Malaya Zulkefli Ahmad Makinuddin.
Justice Zulkefli ordered an early trial date on this matter, ruling that the interests of the child are paramount for the appeal to be heard early.
The judge also allowed the questions of law posed by Izwan's lawyer, Hanif Khatri Abdullah, which basically involved revisiting the S Shamala and R Subashini interfaith custody battles.
This follows the apex court granting leave (permission) for it to hear Izwan's appeal proper, relating to the two questions of law.
Deepa's lawyers puzzled by haste
However, the court did not hear submissions from Deepa's lawyers, led by Fahri Azzat, Aston Paiva and Joanne Leong, who seemed puzzled by the haste in which the Federal Court granted the leave.
This
came despite Fahri pointing to the five-member bench that Izwan was
initially cited for contempt for his failure to return the six-year-old
boy to the mother, as by right, the custody of the child should be given
to Deepa.Justice Zulkefli ignored this argument, and went on to say “we stay all the court orders below”.
He added: “This court views the interest of the child as paramount and an early hearing date (of the appeal) will be fixed."
Besides Justice Zulkefli, who headed the bench, the other judges sitting were Justices Abdull Hamid Embong, Suriyadi Halim Omar, Md Apandi Ali and Zaharah Ibrahim.
Ominously missing was Chief Judge of Sabah and Sarawak, Richard Malanjum, who was present in the earlier panel that sat last month that ordered Izwan to bring the child along or it would not hear his request for a stay or leave today.
Two questions posed
The two questions the bench allowed to be posed before the highest court in the country were:
-
Whether, in the context of Article 121 (1) (a) of the Federal
Constitution, where a custody order is made by the Syariah Court or the
civil High Court on the basis that it has jurisdiction to do so, whether
there is jurisdiction by the other court to make a conflicting order;
and
- Whether in the interpretation of Sections 52 and 53 of the Child Act 2001, a recovery order can be made when there exists a custody order given by the Syariah Court that is enforceable at the same time.
Izwan and Deepa were married under Hindu rites in 2003 and they have two children, a nine-year-old daughter and the son.
Izwan
converted to Islam in 2011 and also converted their two children
converted to Islam. In 2012, the Syariah Court gave him custody of the
children.However, the mother was given custody of the children by the civil High Court in Seremban on April 7, 2014.
Two days after the High Court decision, Izwan came to Deepa's house in Jelebu and took away their son.
The Court of Appeal on Dec 19 last year dismissed Izwan's appeal against the Seremban High Court's decision, and refused to set aside the recovery order issued by the High Court in Seremban to the police to retrieve the son.
Aston told reporters outside court that Deepa's legal team was surprised by the manner in which the apex court decided to grant leave to Izwan without hearing their submission.
“Yes, we are surprised and despite Fahri raising the matter, it was not entertained,” he said.
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