Custody battle reflects Malaysia's religious turmoil

A long-running tussle between a divorced couple for custody of their two young children unilaterally converted to Islam by their father — who also abducted one — came to an end in Malaysia's top court made on Feb. 10.

Feb 12, 2016

KUALA LUMPUR: A long-running tussle between a divorced couple for custody of their two young children unilaterally converted to Islam by their father — who also abducted one — came to an end in Malaysia's top court made on Feb. 10.

Yet attempts by hardliners to further Islamify a country in increasing religious turmoil, received a setback when the civil court ruled that it retained judicial oversight of family law cases and precedence over Islamic courts when only one party is Muslim.

In a compromise decision, a five-man federal court bench, after speaking to the children, separated them and granted each parent custody of a child. The ruling does not touch on the legacy of the conversion of the children.

The ramifications of the judgment, which some are calling contradictory, are difficult to ascertain.

The court ruled that the children were "settled in their present environment" with their divorced parents. The 8-year-old son is with his father, Izwan Abdullah while the 10-year-old daughter lives with her Hindu mother, Subramaniam Deepa.

The issue of a crime being committed when Izwan abducted his son from his mother's care in 2014, after the High Court had granted custody to her, remained unaddressed.

The court however, cleared the national police chief of any failure to perform his legal duties when he refused act on a High Court order to recover the boy from his father.

Deepa, expressed disappointment and declared the ruling an injustice, but told reporters outside the court she had no option other than to abide by the decision.

"I hope things change in Malaysia, this case should be the last of its kind. All I have is my daughter, while my son is taken away from me, this is unfair," the Malaysian media quoted her as saying outside the courtroom Feb. 10.

The grieving mother nevertheless appeared reconciled to the fact when she pleaded: "Malaysia please change, this should not happen to any other single mom like me."

The five-man bench chaired by Raus Sharif provided some hope that such cases will not recur when it ruled that non-Muslim marriages couldn't be declared dissolved if one spouse converts to Islam.

"Divorce and custody of non-Muslim marriages are [the] exclusive jurisdiction of the civil court," Raus said when dismissing Izwan's plea that he was acting legally under Islamic law.

Based on the court ruling, the custody of both children granted by the sharia court in 2011 was misconceived and illegal and the High Court ruling in 2012 was correct and should be upheld.

The judgment allowing Izwan to continue holding his son, whom he abducted on April 9 2014, two days after the High Court's ruling, appears at variance with its own ruling but was explained as being in the best interests of the children as they "were settled well in their present environment."

An independent legal source, who requested anonymity, declared that part of the ruling appeared "preposterous."

The judgment, he explained, may leave open the door to kidnapping of children during child custody disputes between parents as by the time a case was settled the child would be well "settled in their present environment."

Raus agreed that Izwan had abused his conversion to Islam to escape his civil marriage obligations and had also abused the sharia court process when he applied for and was granted custody of his new-converted underaged children.

"The sharia court only has jurisdiction in marriage and divorce when both parties are Muslims," Raus said, adding that the religious court and civil court cannot transgress on each other's role.

"Both must look in to the laws made by parliament and state legislature and must comply with the federal constitution," he added.

Converting children to Islam

The case is a reflection of another custody case involving a father unilaterally converting his children to Islam to wrest them from their mother's custody using Malaysia's Islamic laws to sanction the action.

The children had been converted to Islam by M. Indira Gandhi's ex-husband Muhammad Riduan Abdullah, formerly known as K. Patmanathan.

On April 2009, Riduan took away Prasana Diksa, then 11-months-old, and converted the child and two siblings — Tevi Darsiny, then 12, and Karan Dinish, then 11 — to Islam.

The High Court quashed the conversions but Gandhi's ex-husband appealed.

The Court of Appeal last Dec. 30 overturned a High Court order, ruling that issues regarding Muslim conversion are exclusively the jurisdiction of the Islamic court.

The ruling caused an uproar and the government quickly formed a ministerial committee to study its implications.

The mother is appealing the decision.--ucannews.com