The court dismissed the appeal with cost, set at RM10,000.
In an unanimous decision, the three-member panel led by Justice Abdul Aziz Abd Rahman also dismissed Izwan’s appeal against the recovery order issued by the Seremban High Court.
However, the court granted Izwan a three-week stay of execution with regard to the recovery order for him to file an appeal.
The recovery order was issued after Izwan had snatched the couple’s six-year-old son from his ex-wife.
Citing the controversial interfaith custody battle of R Subashini as precedent, Justice Abdul Aziz ruled that the syariah court has no jurisdiction to dissolve a marriage solemnised under civil law.
"The appeal is dismissed, the High Court has the jurisdiction to grant custody," he said.
Deepa and Izwan, whose previous name was N Viran, were married in 2003.
The husband converted to Islam and obtained custody of both children on Sept 19 last year from the Syariah High Court in Seremban.
The children were converted to Islam in April 2013 without the mother’s knowledge.
On April 7, the Seremban High Court awarded custody of the children to Deepa but did not rule on their conversion.
Two days later, Izwan took away the couple's son from Deepa's house in Jelebu.
Following the application of the parents, both the High Court and the Syariah High Court issued recovery orders compelling the police to track down the children.
The police rejected the orders, blaming this on the conflicting decisions of the civil and syariah courts.
Izwan was also represented by Muhammad Faiz Fadzil, Mohd Kamarul Arifin Mohd Wafa, Mohd Tajuddin Abd Razak, Mohd Fasha Musthafa and Mohd Irzan Iswatt Mohd Noor.
Apart from Fahri, Deepa was also represented by Aston Paiva and Joanne Leong.
IGP and AG allowed to intervene
Meanwhile, senior federal counsels Suzana Atan and Shamsul Bolhassan represented the government following both the inspector-general of police Khalid Abu Bakar and attorney-general Abdul Gani Patail allowed to intervene in the case.
Lawyer Goh Siu Lin conducted a watching brief for the Women’s Aid Organisation, Association of Women Lawyers and eight others, while lawyer Andrew Khoo acted on behalf of Bar Council.
Lawyer Philip Koh Tong Ngee represented the Malaysian Consultative Council of Buddhism, Christianity, Hinduism, Sikhism and Taoism (MCCBCHST), holding a watching brief.
In the appeal hearing on the recovery order earlier, Izwan's lawyer Haniff Khatri submitted that his client had taken the boy from his mother to save his faith, as he worried the boy would suffered from “emotional injury”.
This was because, he said, the boy’s non-Muslim mother may not sent him to religious school, and caused the father to worry about his upbringing.
The man has committed an offence for abducting the boy without the mother’s consent, and reports has been lodged against Izwan for his violent behaviour, rebutted Aston.
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