Shamsher Singh Thind

Let me start by stating the obvious. The Federal Court in the case of Deepa v Izwan did not have the jurisdiction to grant the custody of a child to his Muslim father, under the Law Reform (Marriage and Divorce) Act 1976.

The general rule is that the Act does not apply to a Muslim, according to its Section 3(3). However, the same section, when read together with Section 51(2), provides an exception: the High Court is able to grant the custody of a child to his Muslim parent but only upon the dissolution of the marriage by the High Court.

Since the High Court is yet to so dissolve the marriage of Deepa and Izwan, where did the Federal Court derive its power to grant custody of their youngest child to Izwan?

I believe that the Federal Court has made a fundamental *error*.

Instead of deciding on the custody of the children without jurisdiction, the court should have taken this opportunity to clarify the point that the religion of a child, either before or after divorce, should be decided by the High Court and not by the parents.

Section 89(2)(a) provides that an order for custody may contain conditions as to the place where the child is to reside, as to the manner of his or her education and as to the religion in which the child is to be brought up. In short, without such a condition attached to the custody order, no individual parent should be allowed to convert his child to any other religion.

Some may argue that such an observation by the court will only amount to a non-binding obiter dictum and not a binding ratio decidendi, as Deepa was contesting the custody of the child and not challenging the conversion. That may be true but what is wrong in having an obiter dictum from the Federal Court? It is still persuasive in nature.

Judges of the highest court should be proactive in making sure that there is a continuous development of our own common law. They should not just sit and wait for the “perfect moment” before doing something legally meaningful.

I agree with Prof P Ramasamy (Deepa Case: More to Court Decision that Meets the Eye, FMT Feb 11). “There is no point for the five-man bench to speak about the supremacy of civil courts when its ultimate decision was one that sought compromise rather than justice for the aggrieved mother.”

Prof Ramasamy expects our top judges to be as efficient as their counterparts in England and India, who are not afraid of interpreting the law in a non-literal manner to ensure the best justice is served at the end of the day.

Sadly, our judiciary seems to have long accepted its lowered status and did nothing in this case to restore its dignity.

The lowered status of our judiciary started with the passing of the Constitution (Amendment) Act 1988 which removed the judicial power of the Federation, originally vested in the High Court, and replaced it with such jurisdiction and powers as may be conferred by or under federal law. In other words, the High Court now can only hear a matter and make a decision if and only if the federal laws allow it.

The constitutional amendment also removed the High Court’s jurisdiction in any matter that is within the jurisdiction of a syariah court.

Until and unless the pre-1988 position is restored, there is no guarantee that justice of the highest order will be served. Either Parliament should change the law or judges should better interpret the law.

In conclusion, the Federal Court has erred in law in granting the custody of the youngest son to Izwan, who simply has no locus standi before it.

Instead, custody of both children should have been given to Deepa under Section 88(1) of the Marriage and Divorce Act.

The court should have focused on settling issues like the unilateral conversion of the children by making a clear statement that no child conversion by an individual parent without an order under Section 89(2)(a) of the Act is valid. That would have been a landmark judgment for me.

RELATED

Deepa Case: More to Court Decision that Meets the Eye

Shamsher Singh Thind is an FMT reader

With a firm belief in freedom of expression and without prejudice, FMT tries its best to share reliable content from third parties. Such articles are strictly the writer’s personal opinion. FMT does not necessarily endorse the views or opinions given by any third party content provider.