Viran a/l Nagapan v Deepa a/p Subramaniam and other appeals

[2016] MLJU 05
Federal Court (Putrajaya)

CORAM:
Raus Sharif PCA, Zulkefli Ahmad Makinudin CJM, Abdull Hamid Embong,
Suriyadi Halim Omar and Azahar Mohamed FCJJ.

APPELLANT: Viran a/l Nagapan

RESPONDENT: Deepa a/p Subramaniam

FACTS:
A civil marriage between the appellant and the respondent was contracted
under the Law Reform(Marriage & Divorce)Act 1976(LRA). They bore two
children out of the said marriage, namely, Shamila and Mithran. The
appellant applied and was granted the dissolution of his marriage at the
Seremban Syariah High Court upon his conversion to Islam pursuant to
s46(2) of the Islamic Family Law(Negeri Sembilan)Enactment
2003(Enactment 2003). The appellant obtained a permanent Custody
Order of the two children from the Syariah High Court while the
respondent was granted a similar Custody Order from the Civil High Court.
Mithran was taken away by the appellant from the respondent after she
won the custody battle, which prompted her application and the grant of a
Recovery Order. An order was made empowering the Inspector General of
Police(IGP) and/or his officers to return the child to the respondent and to
execute the judgment irrespective of the Syariah Court order. An appeal
was filed by the appellant in response to the judgment passed in the Civil
High Court with regards to the Custody Order and the Recovery Order.

ISSUES:
Whether the decision in the Civil High Court prevails over the Syariah
Court and the determination of the position of the courts in terms of their
jurisdiction in granting Custody Orders.
The question of the Civil High Courts legality in granting a Recovery Order

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in light of an existing and enforceable Custody Order granted by the
Syariah Court.

HOLDING:
The appeal was dismissed and the decision of the Civil High Court is
affirmed. However, the Recovery Order was not given to the respondent
as s52 of the Child Act 2001 has not been fulfilled.

RATIO DECIDENDI:
The Civil High Court retains its jurisdiction over spouses who converted to
Islam and the custody of their children, following the ratio in Tang Sung
Mooi v Too Miew Kim- husband and wife bound by a civil marriage
contracted by the LRA shall have the issues of divorce and custody of the
children remain under the jurisdiction of the Civil Court, notwithstanding
the conversion of the husband to Islam. The existence of the Courts
jurisdiction can be further fortified by Subashini v Saravanan whereby
Abdul Aziz Mohamad FCJ held that pursuant to s46(2)of the Islamic Family
Law(Federal Territories)Act (in pari materia to Enactment 2003), a non-
Muslim marriage cannot be dissolved on the grounds that a party has
converted to Islam instead, it merely affirms that a dissolution has taken
place. Therefore, Article 121 cl(1A) of the Constitution does not apply to
deprive the High Court of its jurisdiction under s51 of the LRA.

The respondent has no locus standi in requesting for a Recovery Order.

The Syariah Court may not have any jurisdiction on custodial orders but
orders from the court will still remain as a valid one until they are set
aside. Hence, the High Court Judgment cannot be executed by the IGP or
his officers.

OBITER DICTA:
The wordings in section 51(2) of the LRA was construed by Mohamed
Dzaiddin, SCJ, such that its enactment displays the intention of the
legislature to protect and to provide for petitions for divorce and ancillary
relief sought by the party who has not converted. He also mentioned that

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grave injustice would befall non-Muslim spouses and children if the Civil
High Court ceases to have jurisdiction over such cases, leading them to be
without remedy since the Syariah Court cannot exercise its powers over
them.

Wishes of parents must be in line with the welfare of the child before they
are deemed to be of any significance.

OPINION:
The Federal Court was correct in affirming the jurisdiction of the Civil High
Court, however, it erred in not finding that Deepa should be given custody
of both her children, reason being that Viran is known to have engaged in
criminal activities and his act of forcefully taking Mithran from Deepas
custody in contempt of the courts judgment proved that he is not a good
role model for Mithran. Moreover, a guardian ad litem should been
appointed by the court on its own motion instead of interviewing the
children separately in chambers and attributing their decision to
statements that could have been persuasively influenced by material
gains or trauma.
The police reneged on their duty and responsibility on two counts. Firstly,
even when Deepa has clearly obtained an Interim Protection Order(IPO)
for herself and her children against her ex-husband, Mithran was still
abducted from her house, hence, proving that the IPO was not placed into
force by the police. Secondly, they ignored the High Courts order to
execute the recovery of Mithran.

(810 words)