The Sunday Star
With All Due Respect by Roger Tan
The Federal Court ruling on the custody battle between a Muslim convert and his Hindu ex-wife was a landmark decision. Can the thorny issue of unilateral conversion be finally be put to rest?
The much-awaited decision of the Federal Court involving S. Deepa and her former husband, now a Muslim convert, Izwan Abdullah, delivered on Feb 10, is sort of a landmark decision.
Deepa and Izwan (whose Hindu name is N. Viran) registered their civil marriage on March 19, 2003, under the Law Reform (Marriage and Divorce) Act, 1976 (Act 164). They have two children, a girl, V. Shamila and a boy, V. Mithran. Both were Hindus at the time of their birth.
On Nov 26, 2012, Viran converted to Islam. On Jan 4, 2013, Izwan unilaterally converted the two minors to Islam surreptitiously without the knowledge or consent of Deepa.
Shamila’s Muslim name is Nur Nabila Izwan while Mithran is named Muhammad Nabil Izwan. On May 15, 2013, Izwan also managed to obtain a dissolution order of his civil marriage with Deepa from the Seremban Syariah High Court under section 46(2) of the Islamic Family Law (Negri Sembilan) Enactment 2003. Then on Sept 19, 2013, Izwan was granted permanent custody of the two children by the Syariah High Court with Deepa having visitation rights and access to the children.
Meanwhile, upon the application of Deepa, the civil marriage was dissolved by the Seremban Civil High Court on April 7, 2014. The same court also granted permanent custody of the children to Deepa with Izwan having weekly access to the children. However, two days later, Izwan took Mithran away from Deepa’s house. Deepa then applied for and obtained a recovery order from the Civil High Court pursuant to section 53 of the Child Act, 2001.
Izwan appealed to the Court of Appeal against the custody order as well as the recovery order. On Dec 17, 2014, the Court of Appeal dismissed both appeals.
On Feb 10, the Federal Court ruled that as long as one parent was non-Muslim, the Syariah Court had no jurisdiction to hear any matter pertaining to the marriage solemnised under civil law at the very beginning (ab initio). The court also granted custody of Shamila (Nurul Nabila), 11, to Deepa, while son Mithran (Nabil), eight, is to live with Izwan.
To be fair to the panel of five Federal Court judges chaired by the Court of Appeal President Tan Sri Raus Sharif who also delivered the decision of the apex court, the issue of unilateral conversion was not addressed simply because the court was asked to determine only two questions of law, namely: