Thanaletchimy a/p Batamallai v Vijaya Kumar a/l Kassinathan [2018] 4 MLJ 557

Court of Appeal (Putrajaya)

Child Custody

2.     As a result of this union, they were blessed with a son named Arjun Kumar a/l Vijaya Kumar (the child), who was born on 3 April 2014.

3.     The Plaintiff and the Defendant were constantly arguing with one another and the relationship between the two of them could be described as strained and acrimonious.

4.     The Plaintiff alleged that the Defendant had shown aggressive behaviour towards the Plaintiff throughout their marriage.  In addition to that, the Plaintiff also alleged that the Defendant had been verbally and physically abusive towards her.

5.     The tension in their marriage deteriorated further when the Plaintiff was pregnant with their child.  The Plaintiff’s wishes to meet her parents were denied by the Defendant.

6.     The Plaintiff also alleged that in addition to being threatened by the Defendant, the Defendant also verbally and physically assaulted the Plaintiff.

7.     The Plaintiff allegedly was always in a constant state of fear of harassment and violence from the Defendant.

8.     Due to the constant abuse (verbal and physical), the Plaintiff had lodged numerous police reports and when the abuse became even more rampant, the Plaintiff was left with no other choice but to move out from their matrimonial home on 13 March 2015 to her parents’ house at 8-1B, Jalan Industri, Pusat Bandar Puchong, Selangor Darul Ehsan with their child, then aged ten months old in 2015.

9.     Then, on 3 April 2015, at or around 8.30am, the Defendant with two men came to the Plaintiff’s parents’ house and took the child away from the Plaintiff.

10.  The Plaintiff had since then been denied access to see her child. Her attempt to take the child back at the Defendant’s parents’ place on 7 April 2015 was prevented by the Defendant.

11.  The child was born with an anorectal defect or anorectal colostomy which is a birth defect in which the anus and rectum (the lower part of the digestive tract) is not properly developed.

12.  The child had undergone a colostomy operation on 4 April 2014, a day after he was born, and a second operation when the child was four months old.

13.  At the time of the filing of this appeal, the child’s age was two years and ten months old.  Due to his specific condition, the child needed special care and attention.

14.  The Defendant vehemently denied the Plaintiff’s allegation of his aggressive behaviour and violent tendencies towards the Plaintiff.

15.  The Defendant alleged that the reasons for the tension in their marriage was attributed to the fact that the Plaintiff was not a practising Hindu and the Plaintiff had failed to perform her responsibilities as a wife.

16.  In addition to that, the Defendant also alleged that the difference in caste between the Plaintiff and the Defendant also contributed to the problem in their marriage.

17.  The Defendant contended that the custody, care and control of the child should remain with him and his mother as the child was already under her care even while the Plaintiff and the Defendant were still living together.  The child then was under the care of the Defendant’s mother.

(a)   The position of the law on the power of the Court to make an order for custody of children below the age of seven years old is clearly provided under Section 88(3) of the Law Reform (Marriage and Divorce) Act 1976 (Act 164).

(b)   The law presumes that it is in the best interest of the child aged seven years and below to be under the care and custody of the mother unless it can be proven to the Court that the child would be better off with someone else.

(c)   The rationale behind this presumption has been explained in a number of cases. It is that this period ie, a child reaches seven years of age, is a period of nurture when a young child is dependent on the mother for its physical and emotional needs. Thus, in K Shanta Kumari v Vijavan [1986] 2 MLJ 216 at p 218, Wan Yahya J (as he then was) held that-

“Even going on the assumption that both parents are equally capable of providing the care, comfort and attention to the infant, the courts have always leaned in favour of the mother being given custody of young infants. The reason is very obvious. An infant of tender age is by nature more physically and spiritually dependant on its own mother than anyone else.”

(d)   Furthermore, the case of Re Orr [1973] 2 DLR 77 Muloch CJ affirmed that-

“In the case of a father and mother living apart and each claiming the custody of a child, the general rule is that the mother, other things being equal, is entitled to the custody and care of a child during what is called the period of nurture, namely, until it attains about seven years of age, the time during which it needs the care of the mother more than that of the father.”

(e)   Based on the preceding case, the Court concluded that the care and custody of a child under the age of seven years old would naturally incline to the mother unless the presumption under Section 88(3) of Act 164 is rebutted, and strong grounds are required to rebut this presumption. In short, the care and custody of a child of a vulnerable age should, on the surface, remain with the mother, and strong grounds are required to justify depriving the mother of such care and custody.

(f)     In this present appeal, other than mere unsubstantiated allegations by the Defendant against the Plaintiff, there was no evidence to suggest that the Plaintiff was an unfit mother to her child.

(g)   In fact, from the facts of the case, the Court found that the Plaintiff, after deciding that she had had enough of the verbal and physical abuse from the Defendant, chose to leave their matrimonial home together with the child when the child was ten months old.

(h)   The child was under the Plaintiff’s care and custody for only approximately 22 days when the Defendant together with his two relatives took the child forcibly away from the Plaintiff.  Thereafter, the Plaintiff was denied access to the child by the Defendant/Defendant’s family.

(i)      Thus, the Court was of the view that the learned High Court judge had erred when he premised his decision on granting the care and custody of the child’s grandmother just because the Plaintiff only had cared for the child for a short period of time, that is, between the time when she left the matrimonial home until the time when the Defendant took the child from the Plaintiff.

(j)      The learned judge failed to consider in the proper context the reasons why the Plaintiff had a short period of time to look after the child and had instead ‘rewarded’ the Defendant for his forcible custody of the child from the Plaintiff and denial of the Plaintiff’s access to the child.

(k)    Therefore, the Court found that the learned High Court judge had erred when he decided that it was best to preserve the status quo and not to disrupt the environment that the child was accustomed to, that is, with the Defendant’s mother, as this finding was misconceived.

(l)      This finding would seem to connote the idea that the Plaintiff had voluntarily abandoned the child only to come back and demand the care and custody of the child later whilst in fact she was denied the opportunity to not only care for her own child but also not given any form of access to the child by the Defendant/Defendant’s family.

(m)  The fact that the child is suffering from a serious birth defect and requires special care and attention cannot negate the right of the Plaintiff to care for her own child.

(n)   What was more disturbing to the Court was the fact that the learned judge gave the care and custody of the child to his grandmother and not even to his father.

(o)   Therefore, the Court found that the care and custody of the child should be given to the Plaintiff.

(p)   Thus, since the rebuttable presumption under Section 88(3) of Act 164 had not been proven by the Defendant, it was the Court’s decision that the Plaintiff, being the biological mother, be given the care and custody of the child.

2.     This is mainly due to the fact that babies are more physically dependent on their mothers by nature.

3.     However, it must be noted that in deciding whether that presumption applies in a particular case, the Court has to consider the undesirability of disturbing the life of a child by a change of custody.

4.     If the father wants to gain custody of his children below seven years of age, the father will need to prove that his spouse is an unfit mother.