In Awarding The Father Custody Of His Son, Did The Federal Court Condone His Wrongdoing?
IMHO, it seems the Federal Court chose the easy way out for themselves.
Cover image via TMIOn 11 February, the Federal Court's ruling in the custody row between Muslim convert Izwan Abdullah and his Hindu ex-wife S. Deepa ended with each getting one child. Abdullah got his 8-year-old son while Deepa was given custody of her 11-year-old daughter.
The five-man bench chaired by Raus Sharif also ruled that both parents could visit their children at the home of Deepa's mother in Jelebu Negri Sembilan once in two months between 10 am to 3 pm
Going separate ways: Deepa with her daughter Nurul Nabila (Sharmila) and Izwan with his son Nabil (Mitran) leaving the Federal Court after the decision on the custody of their children.
Image via MOHD SAHAR MISNI/The Star
However, in ruling so, the Federal Court, it seems, has deliberately decided to award the father who broke the law by snatching the son from the lawful custody of Deepa back on 9 April 2014. In other words, the Federal Court ruling gives the impression that a person, under the guise of religion, could abuse the legal system and instead of facing rightful punishment, would actually benefit from it.
And no, this is not me who is saying so. Even the Retired Federal Court judge Gopal Sri Ram believes that Izwan Abdullah (N. Viran) broke the law but benefitted when the Federal Court gave him custody of his son.
Speaking to [the Malaysian Insider](http://www.themalaysianinsider.com/malaysia/article/winners-and-losers-in-deepa-interfaith-custody-battle), Sri Ram said, "Izwan was also acting on a Shariah court custody order when that religious court had no jurisdiction in a case where one party remained non-Muslim. He did not come to court with clean hands to seek justice."
"I am not satisfied with the decision as initially the High Court and Court of Appeal ruled in my favour and I had hoped of getting my children. But I remain separated from my son. I hope Malaysia and its people would change. Do not let single mothers like me to have this question unanswered. I faced a lot of difficulties, losing my son, my husband. I do not have money and there was no assistance. It is not fair as now I am left with my daughter and my son is separated from me. This is not fair. Malaysia is being unfair (to me). Do not let this episode recur. Let my case be the last in Malaysia. Malaysia please change," a sobbing Deepa was quoted by [Malaysiakini](https://www.malaysiakini.com/news/329932) as saying.
Image via Kamal Ariffin/The Malaysian Insider
Moreover, the Federal Court completely overlooked the fact that after the High Court ordered the police to assist Deepa in getting back her son who was abducted by his father, IGP Khalid Abu Bakar, a public servant, had declined to follow the High Court, saying he could not comply as there were two conflicting custody orders.
But that isn't the case now, is it?
The Shariah court has no jurisdiction over a dispute in which one party was non-Muslim. And Retired Federal Court judge Sri Ram agrees that the IGP should follow civil court orders, not the Shariah court.
As Melissa Sasidaran, the legal and campaign coordinator for Lawyers for Liberty (LFL), wrote for [Malaysiakini](https://www.malaysiakini.com/letters/330036), the Federal Court should have brought IGP Khalid Abu Bakar to task for failing to enforce the High Court order in recovering custody of the child who was forcibly taken away.
Even the President of the Association of Women Lawyers, Goh Siu Lin said the bench clearly held that the Shariah Court only has jurisdiction in marriage and divorce when both parties were Muslims, adding, "So it is wrong from the beginning for the religious court to issue a custody order which the High Court revoked later."
Basically, it so appears that the Federal Court has condoned the father's abduction of his son and the refusal of the IGP to act on the order of the High Court.
Image via The Malaysian Insider
The ruling also did not resolve the issue of unilateral conversion, an unconstitutional act committed by the father who had converted the children to Islam without their Hindu mother's knowledge or consent in 2012 and used the Syariah Court to get their custody
Expressing its dissatisfaction against the decision, the Women's Aid Organisation (WAO) warned that this verdict granting S. Deepa's Muslim convert ex-husband custodial right over their son would encourage more unilateral conversion in the future.
"The Court's ruling thus fails to fully protect the rights of non-converting spouses and their children, and contravenes the Federal Constitution and its guarantee of equality," the group's president Carol Chin added.
That said, however, the Federal Court must be praised for ruling that it is the civil court had the power to hear and determine the issue while the Syariah Court had no jurisdiction even if one spouse had converted to Islam, adding that the civil court was the proper forum to decide on the dissolution of marriages in such cases
Image via AFP
