A lawyer representing Muslim convert N Viran @ Izwan Abdullah told the Federal Court today that the civil court has no jurisdiction to hear the case on the custody of the children as they have already been converted to Islam.

Lawyer Hanif Khatri Abdullah said in this case the divorce took place before the father converted.

After Izwan converted, Hanif said,‎ he then converted the children.

A child, Hanif added, is allowed to be unilaterally converted by the father, as decided by former Federal Court judge Nik Hashim Nik Abdul Rahman in the R Subashini case.

"‎Hence, the civil court does not have jurisdiction to grant custody to the mother as the children are Muslims.

"Jurisdiction is with the Syariah Court and this is also stated in Section 1(3) of the Guardianship of Infants Act 1961 (GIA), which states nothing in this Act shall apply in any state to persons professing the religion of Islam, until this Act has been adopted by the law made by the state legislature," he said.

Hence, Hanif said it is crystal clear from the GIA, in the absence of any challenge made by Deepa against the child's conversion, that the civil court has no jurisdiction to entertain any custody application made by a non-Muslim spouse against a Muslim spouse.

Izwan's former wife S Deepa ( photo ) was granted custody of her children by the High Court in Seremban on April 7, 2014 while the Syariah Court granted a custody order to Izwan.

Izwan is appealing against the custody and recovery of the child order issued last year by the High Court in Seremban.

This highly charged case is being observed by various interest groups, including the Muslim Lawyers Association, the Women's Aid Organisation, Abim, and the Malaysian Consultative Council of Christianity, Buddhism, Taoism, Hinduism and Sikhism.

The Malaysian Human Rights Commission Suhakam is also an observer.

On the recovery order, Hanif said the same court which granted the custody order cannot make an order of recovery of the child under the Child Act as this has to be done by a different court.

'GIA does not apply'

Fahri Azzat, who is representing Deepa, submitted that the GIA does not apply here as the case does not deal with any parents who are dead.

This, he said, was not the intention of the law as it is applied here because the parents are around.

"As the couple were previously married under the civil law, then the Law Reform (Marriage and Divorce Act) 1976 applies and the civil court applies here.

"The custody order can be made before the civil High Court. This shows that the civil court has the jurisdiction. The children are brought up by civil marriage and therefore, jurisdiction should be with the civil court,” he said, adding the High Court and the Court of Appeal agreed on this.

Senior Federal Counsel Suzana Atan who appeared for the Inspector-General of Police said there is conflicting orders, as the civil High Court and the Syariah High Court had issued similar orders of custody.

"The recovery order issued by the civil High Court empowers the police to go into Izwan's house and take the children. However, Izwan is also granted custody of the child following an order by the Syariah High Court of Seremban.

Hence, both orders cannot be enforced as there are conflicting orders before the IGP and police,” the senior federal counsel added.

Fahri meanwhile told the court that the recovery order only exists for the civil High Court as the Syariah High Court does not have such orders on the police to recover the child.

Child welfare paramount

After the proceedings, lawyer Andrew Khoo ( photo ) who is representing Suhakam told reporters that whichever the case, the welfare of the child is of paramount importance as Malaysia is signatory to the UN Convention on the Rights of the Child.

He said the convention states that the Universal Declaration of Human Rights proclaim that everyone is entitled to "all the rights and freedoms set forth therein, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status".

Khoo further said the preamble to the Child Act 2001 also recognises every child is entitled to protection and assistance in all circumstances, without regard to distinction of any kind, such as race, colour, sex, language, religion, social origin, or physical, mental or emotional disabilities, or any other status.