COMMENT In the custody battle of S Deepa and her former husband Izwan Abdullah, the Federal Court's decision to recognise the supremacy of civil courts on matters of civil marriage and divorce can be considered as landmark judicial pronouncement with a potential to resolve long-standing legal disputes of unilateral conversions.

The five-man bench of the Federal Court under the chair of Justice Md Raus Sharif might not have been immune to the intense publicity generated in a similar case of Indira Gandhi who is still awaiting for a decision from the Federal Court as to ascertain the validity of unilateral conversion of her children.

Even though the Federal Court did not provide the full custody of the two children to Deepa, it nonetheless affirmed a very basic principle that civil marriages cannot be automatically terminated if one of the spouses converts and seeks the intervention of the Syariah Court.

While the court had no problem with the earlier decision of the Seremban High Court, it nonetheless found it necessary to reject or vary its order in not giving full custody to Deepa.

At the same time, it dismissed the Syariah Court order that gave the father, Izwan, full custody.

The variance to the High Court order (that gave full custody to Deepa) apparently resulted from the discussion the judges had with the two children as to who they wanted to grow up with.

It was on this basis that the High Court order was varied to take into account of the best circumstances for the children.

Unfortunately, the decision to place the son under the custody of the father and the daughter with the mother "as to their best interests" is contradictory and does not really strike at the root of the problem of unilateral conversion.

A Malaysian Hindu body expressed its regret that while the Federal Court did make a right decision in affirming the right of civil courts in deciding cases of civil marriage and divorce, it failed to implement its decision in the right and lawful manner.

By separating children on the grounds of their attachment to parents, the court watered down its robust judgment and thereby rendering ineffective its actual application.

Hypothetically if the couple had three children and say that two was with the father, how would have the court decided? Would it have placed the two children under the father's custody?

Wouldn't such a decision make a mockery of any attempt, legal or otherwise, to strike at the roots of injustice of unilateral conversion?

Or alternatively, would the court have relied on the proverbial King Solomon's method of determining whom the children should belong to?

The Federal Court has already created a difficult precedent in partially acknowledging the fact of unilateral conversion. Placing one child under Deepa's former husband essentially tantamount to this.

Custody battles will continue to rage

When the Indira Gandhi's matter comes for a decision at the Federal Court soon, I think that it would be a Pyrrhic victory for her.

Yes, the court might affirm the principle of the supremacy of civil courts but it is quite certain that her former converted husband would get the custody of the son.

Paradoxically, given the contradictory nature of the Federal Court's decision, custody battles will continue to rage in Malaysia.

Those who seek justice through the law and courts will be disappointed.

Civil courts might have a role, but in practice, they lack the "teeth" in enforcing custody. A converted parent who relies on state agencies and others to " abduct " his children from a non-converted spouse will invariably have custody over them.

Might and religious connections will determine the actual outcome of custodial battles rather than the reliance on the law and courts.

Ironically, it is the same might that would influence court decisions; decisions that would be favourable to those who convert to Islam.

In the larger sense, the law of the jungle seems to be operative in the country.

A parent who converts with the blessing of the state agencies and religious departments will probably have more say on custody rather than the courts.

It is regrettable that the Federal Court's decision is a major disappointment.

The five-man body was more interested in seeking a compromise that was politically appealing rather than to strike and render ineffective the system of injustice.

P RAMASAMY is Deputy Chief Minister II of Penang and the assemblyperson for Perai.