The Women’s Aid Organisation (WAO) is deeply disappointed that the Federal Court has denied justice to S Deepa and failed to uphold the fundamental guarantee of equality in our constitution.
The Court’s decision deeming that Deepa’s former husband will retain custody of their son, Mithran, whom he abducted on April 9, 2014, while Deepa will retain custody of their daughter, Sharmila, is unprecedented, unsubstantiated by the law, and in contradiction of Article 8 of the constitution.
The Court ruled that the Law Reform (Marriage and Divorce) Act 1976 is the exclusive law governing the dissolution of marriage and custody as related to parties who register their marriage under civil law, bringing some much-needed clarity.
However, the Court subsequently ruled that the Recovery Order issued by the High Court in Deepa’s favour was improper because a conflicting Syariah Court Order granting custody of both children to her former-husband was valid until set aside - despite the Court’s recognition that the Syariah Court had no jurisdiction to grant such an order in the first place.
Finally, the Court ruled that, taking into account the undesirable disruption to the children’s lives if the High Court Order was maintained, it is instead in the best interests of the children to remain in their respective current living situations.
The best interest of the child is something that must be considered holistically. This means taking into account all relevant considerations, based on an independent, professional evaluation of the physical and psychological well-being of the child, character and past history of the parents, and the undesirability of separating siblings.
In effect, the Court’s ruling today validates the violent abduction of Mithran by Deepa’s former husband. The Court failed to take into account his direct disregard of the original Order of the High Court that awarded custody of both children to Deepa, as well as the well-documented history of domestic violence in this case.
By not upholding the Order by the High Court granting custody of both children to Deepa, the Federal Court’s ruling has resulted in extreme violation of Deepa’s rights as a mother and equal guardian of her children. This erodes our constitutional rights as Malaysians, and perpetuates the deep-seated inequality faced by women in our society.
WAO foresees that today’s Federal Court’s decision will serve to further encourage unilateral conversion by one spouse, undermine the rights of the child and maintain existing conflict and confusion in the law.
Despite the Court’s foresight in clarifying Section 51 of the Law Reform (Marriage and Divorce) Act 1976, and confirming that marriages contracted under civil law must be resolved under civil law, the Court has failed to redress the concentration of legal rights in favour of the converting spouse vis-a-vis utilisation of the Syariah Courts.
The Court’s ruling thus fails to fully protect the rights of non-converting spouses and their children, and contravenes the federal constitution and its guarantee of equality.
Furthermore, it must not be forgotten that the unilateral conversion of the children in this case, given the history of domestic violence faced by Deepa from her former husband, is an extension of that violence. The Federal Court has facilitated yet another tool to be used by abusers to seek power and control over their victims.
The Federal Court’s decision not to uphold the Custody Order and Recovery Order issued by the Civil Court will result not only in abuse of the Syariah Courts by the converting spouse, but also potentially in an erosion of the exclusive jurisdiction of the civil Courts as envisioned by the constitution. This will leave many non-converting spouses, and all Malaysians, insecure in their legal rights and without recourse to seek justice.
CAROL CHIN is president of the WAO executive committee.