‘Marriage does not dissolve when one party converts’

PUTRAJAYA: The Federal Court decided to divide custody of the two children of a Hindu woman and her Muslim-convert ex-husband after finding that the children were certain on which parent they wanted to live with.

Court of Appeal President Tan Sri Md Raus Sharif, in his 32-paged judgment which was released yesterday, said the Federal Court five-man bench found that children were capable enough to express their independent opinion and to decide their preference whether to live with their father or mother.

Last Wednesday, the Federal Court five-man bench had given custody to Izwan Abdullah, 33, of his eight-year-old son, while his ex-wife, S. Deepa, 32, got custody of their 11-year-old daughter.

Justice Md Justice Raus said the coram had taken the liberty to see both the children in chambers to determine with whom they wished to live with.

The boy, who introduced himself with his Muslim name, told the judges in clear terms that he was very happy to live with his father and also said that he did not wish to live with his mother, he said.

He said the girl told the judges without hesitation that she preferred to live with her mother.

“She also informed us that she is now residing with her mother in Johor Bahru, and is a student at an International school there. She said she is very happy to be with her mother and does not wish to live with her father,” said Justice Md Raus.

He said based on the interview, the court found that the children were certain of their choices and that they had settled down and were well cared for respectively.

“We are of the view that taking into consideration the welfare of the children as of paramount importance, it is undesirable to disturb the present arrangement,” he added.

He said it was a settled law that custody order was never final or irreversible, adding that a change in circumstances had occurred where the son was taken away by Izwan two days after the High Court in Seremban gave custody of both children to Deepa.

The son had been with the exhusband since then, while the daughter remained with the mother, he added.

He said the presumption that a young child was better off with the mother than the father was not on its own necessarily a decisive factor, but must be weighted together with other relevant factors, with paramount consideration to the welfare of the child.

In his judgment, Justice Md Raus also said that a Muslimconvert spouse could not dissolve his/her civil marriage and to seek custody of the children born from civil marriage in the syariah court.

The Law Reform (Marriage and Divorce) Act 1976 continues to bind spouses in a civil marriage, despite the conversion of one spouse to Islam, he added.

He said the civil court still retained the jurisdiction to decide on divorce and custody of children of civil marriage between the ex-husband and the ex-wife despite conversion of one of the spouse to Islam.

A non-Muslim marriage does not automatically dissolve upon one of the spouse converting to Islam, he said and cited section 46 (2) of the Islamic Family Law (Federal Territories) Act 1984, where the Syariah Court could not dissolve a non-Muslim marriage where a party to it had converted to Islam, but merely to confirm that a dissolution had taken place by reason of conversion.

He said the law was in pari materia (two laws relating to the same subject matter that must be analysed with each other) with section 46 (2) of the Islamic Family Law (Negeri Sembilan) Enactment 2003.

“It is an abuse of process for the spouse who has converted to Islam to file for dissolution of the marriage and for custody of children in the syariah court,” he said.

The syariah court, he said, could only grant orders pertaining to divorce or allow pronouncement of talaq by the husband where the marriage was registered under the Islamic Family Law (Negeri Sembilan) Enactment or that the marriage was solemnised in accordance with the syariah law.

“In the present case, the marriage between the exhusband (Izwan) and the exwife (Deepa) was not registered under the Enactment 2003, neither was the marriage solemnised in accordance with the Syariah Law,” he added.

He said Deepa and Izwan’s marriage was a civil marriage in accordance with the Law Reform (Marriage and Divorce) Act and as such, it was the Law Reform Act that determined the jurisdiction pertaining to the dissolution of their marriage and also any ancillary reliefs.

He said Article 121 (1A) of the Federal Constitution, which removes the jurisdiction of the civil courts in respect of any matters within the jurisdiction of the syariah courts, did not operate to deny the civil courts jurisdiction to decide on divorce and custody matters where one spouse to a marriage had converted to Islam.

Article 121 (1A) was introduced not for the purpose of ousting the jurisdiction of the civil courts, he said, but to avoid any conflict between the decision of the syariah courts and the civil courts.

“In the present case, the conf lict arose because the exhusband had brought his case to the Syariah High Court,” he added.