PUTRAJAYA, 10 Feb -- Wajah plainitif S. Deepa bersama anak perempuannya, sebaik keluar kamar Mahkamah Persekutuan hari ini. Deepa, seorang kerani, mendakwa bekas suaminyaN. Viran yang memakai nama Izwan Abdullah setelah memeluk Islam, menukar agama kedua-dua anak mereka tanpa kebenarannya.--fotoBERNAMA (2016) HAK CIPTA TERPELIHARA
PUTRAJAYA: The two children who became the centre of a custody tussle between their Muslim convert father Izwan Abdullah and Hindu mother S. Deepa, are certain of their choices to live with either parent, the Federal Court rules.
The five-man panel had on Feb 10, granted custody of eight-year-old Mithran to Izwan while Shamila,11, is to live with the mother.
Court of Appeal president Justice Md Raus Sharif said that the panel also discovered Mithran and Shamila have settled down and are well cared for.
Justice Md Raus said the court considered the welfare of the children as of paramount importance, before it ruled that it was undesirable to disturb the present arrangement.
Under the circumstances, the panel had to vary the custody order granted by the High Court by ruling that the custody of Shamila remains with the mother while custody of Mithran is to be with the father.
He said two days after the custody order by the High Court, Mithran was taken away from Deepa’s house by Izwan, 33, whose Hindu name was N. Viran, and since then Mithran has been with the father while Shamila has been with her 32-year-old restaurant manager mother.
“Bearing in mind that the welfare of the children is the paramount consideration, we have taken the liberty to see both children in chambers to ascertain whether their wishes to be with their mother remained the same.
“We found that both are capable and mature enough to express their independent opinion and to decide on their preference whether to live with their father or mother,” he said.
Justice Md Raus said Mithran introduced himself as Nabil Abdullah and he told the panel in clear terms that he was happy to live with his father and that Shamila preferred to live with her mother.
He said Shamila also informed the panel that she is now residing with her mother in Johor Baru, Johor, and is a student at an international school there and does not wish to live with her father.
He also said the Civil Courts had consistently held that a converted spouse could not use his conversion to Islam to escape responsibilities under the Law Reform (Marriage & Divorce) Act 1976.
“We are of the same view that a non-Muslim marriage does not automatically dissolve upon one of the parties’ conversion to Islam.
“The Civil Courts continue to have jurisdiction in respect of divorce as well as custody of the children despite the conversion of one party to Islam.
“In the present case, the ex-husband and the ex-wife were Hindus at the time of their marriage. By contracting the civil marriage under the Act they are bound by its provisions in respect of divorce as well as custody of the children of the marriage.
“Thus, the matter of dispute between the ex-husband and the ex-wife is not a matter within the jurisdiction of the Syariah High Court,” he said.
Justice Md Raus said it was clear that Article 121(1A) of the Federal Constitution was introduced not for the purpose of ousting the jurisdiction of the Civil Courts.
He said it was introduced to avoid any conflict between the decision of the Syariah Courts and the Civil Courts which had occurred in a number of cases before.
He said it was an abuse of process for the spouse who has converted to Islam to file for dissolution of the marriage and for custody of the children in the Syariah Courts.
