By P Ramasamy
In the custody battle of S Deepa, the Federal Court’s decision to recognise the supremacy of civil courts on matters of civil marriage and divorce can be considered a landmark judicial pronouncement. The five-man bench of the Federal Court might not have been immune to the intense publicity generated in the similar case of Indira Gandhi, who is still awaiting a decision from the Federal Court.
Even though the Federal Court did not provide full custody of the two children to Deepa, it nonetheless affirmed a very basic principle that civil marriages cannot be automatically terminated if one of the spouses converts and seeks the intervention of the Syariah Court.
While the court had no problem with the earlier decision of the Seremban High Court, it nonetheless found it necessary to reject or vary its order in not giving full custody to Deepa. At the same time, it dismissed the Syariah Court order that gave the father, Izwan, full custody of the children.
The variance to the High Court order apparently resulted from the discussion the judges had with the two children as to who they wanted to grow up with. It was on this basis, the High Court order was varied to take into account the best circumstances for the children.
Unfortunately, the decision to place the son under the custody of the father and the daughter with the mother “as to their best interests” is contradictory and does not strike at the root of the problem of unilateral conversions.
A Malaysian Hindu body expressed regret that while the Federal Court did make a right decision in affirming the right of civil courts in deciding cases of civil marriage and divorce; it failed to implement its decision in a right and lawful manner.
By separating children on the grounds of their attachment to their parents, the court watered down its robust judgment and thereby rendered it ineffective in its actual application.
Hypothetically, if the couple had three children and two were with their father, how then would the court have decided? Would it have placed the two children under the father’s care? Wouldn’t such a decision make a mockery of any attempt, legal or otherwise, to strike at the root of the injustice of unilateral conversions?
Alternatively, would the court have relied on the proverbial King Solomon method of determining whom the children belonged to?
The Federal Court has already created a difficult precedent in partially acknowledging the fact of unilateral conversions. Placing one child under the care of Deepa’s former husband is essentially tantamount to this.
When Indira Gandhi’s matter comes up for decision by the Federal Court soon, I think it would be pyrrhic victory for her.
Yes, the court might affirm the principle of the supremacy of civil courts but it is quite certain that her Muslim-convert former husband would get custody of their daughter.
Paradoxically, given the contradictory nature of the Federal Court’s decision, custody battles will continue to rage on in Malaysia. Those who seek justice through the law and courts will be disappointed.
Civil courts might have a role, but in practice they lack the “teeth” in enforcing custody. A converted parent who relies on state agencies and others to “abduct’ his children from a non-converted spouse will invariably have custody over them.
Might and religious connections will determine the actual outcome of custodial battles rather than reliance on the law and the courts. Ironically, it is the same might that will influence court decisions; decisions that would be favourable to those who convert.
In a larger sense, the law of the jungle seems to be operative in the country. A parent who converts with the blessings of state agencies and religious departments will probably have more say on custody issues than the courts.
It is regrettable that the Federal Court’s decision has been a major disappointment.
The five-man body was more interested in seeking a compromise that was politically appealing rather than to strike and render ineffective the system of injustice.
P Ramasamy is Deputy Chief Minister II of Penang.
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