VIRAN A/L NAGAPAN v DEEPA A/P SUBRAMANIAM (PEGUAM NEGARA MALAYSIA & ANOR, INTERVENER) [2015] 3 MLJ 209

Court of Appeal (Putrajaya)

Child Custody (conversion to Islam)

Facts

2. In 2012, the husband converted to Islam and registered both his conversion and his children at the Pusat Dakwah Islamiah, Seremban.  Then, the Appellant sought the dissolution of marriage at the Syariah High Court Seremban because of his conversion to Islam.

3. Subsequently, in September 2013, the Syariah High Court Seremban awarded custody to the husband with visitation rights for the wife.  However, in December 2013, the wife filed for divorce at the High Court of Seremban, aiming to gain custody of their children.  The High Court granted the divorce and custody to the wife.

4. After the High Court’s decision in April 2014, the children were given to the wife at the court, but the husband took away the youngest child two days later.

5. The wife then applied for a recovery order in the High Court under Section 53 of Act 164, which the court granted.

6. Subsequently, the husband filed separate appeals to the Court of Appeal against the High Court’s decision granting custody to the wife and the recovery order.

Issue

Ratios

(a) Section 121 (1A) of the Federal Constitution provides that –

“Judicial power of the Federation

 121.  (1) There shall be two High Courts of co-ordinate jurisdiction and status, namely—

(a)  one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

(b)  one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong may determine;

(c)  (Repealed).

and such inferior courts as may be provided by federal law and the High Courts and inferior courts shall have such jurisdiction and powers as may be conferred by or under federal law.

(1A) The courts referred to in Clause (1) shall have no jurisdiction in respect of any matter within the jurisdiction of the Syariah courts.”                                                                                                                                                                                            [Emphasis Added]

(b) The learned counsel submitted that the Court must first establish whether the Applicant has lawful custody of the child.  As such, the Court should determine whether the Respondent has any defence against the application.

(c) Moreover, the counsel also contended that the Appellant asserted rightful custody based on the Syariah Court’s order, while the Respondent relied on the High Court’s custody order.

(d) In deciding whether the High Court’s recovery order was justifiable considering the existence of the Syariah Court’s custody order, the Court of Appeal acknowledged that the High Court granted custody after the Appellant’s conversion to Islam and obtaining the Syariah Court’s order.

(e) Therefore, as the Appellant claimed lawful custody under the Syariah Court order, the Court also acknowledged the Syariah Court’s jurisdiction over the Appellant, following Section 121(1A) of the Federal Constitution.”

(f) However, the central issue revolves around determining the Court’s jurisdiction over parties initially involved in a civil marriage and children born from such a union of civil marriage.

(g) The Court referred to the Federal Court’s decision in Subashini a/p Rajasingam v Saravanan a/l Thangathoray [2008] 2 MLJ 147, affirming the High Court’s exclusive jurisdiction in divorce and child custody matters from a civil marriage.

(h) Consequently, despite the Appellant’s conversion to Islam and custody granted by the Syariah Court, the Court upheld the Federal Court’s decision in Subashini’s case, stating that the Syariah Court had no jurisdiction due to the initial civil marriage.

(i) In summary, the counsel’s argument about the High Court’s superiority over the Syariah Court was irrelevant in the Appellant’s case, as the High Court correctly ruled in favour of the Respondent. The Court affirmed the High Court’s decision, granting the Respondent legal custody of the child.

1. When parties have contracted a civil marriage and the children were born from that civil marriage, the High Court holds exclusive jurisdiction over matters related to divorce and custody of children

2. Even if one spouse converts to Islam and obtains a custody order from the Syariah Court, as long as the marriage before the conversion of Islam was civil marriage and the children were born from it, the Syariah Court has no jurisdiction in these matters.

3. Therefore, in disputes between the High Court and the Syariah Court regarding custody rights, the jurisdiction rests with the High Court for matters concerning divorce and children born from a civil marriage.