After meeting with the children involved in a conversion tussle, the Federal Court ruled that Izwan Abdullah (N Viran) be given custody of his son, while his former wife S Deepa was granted custody of their daughter.

The decision was made based on the respective wishes of the two children.

The apex court ruled that divorce and custody in civil marriages should be decided by the civil court.

The five-member bench said marriage annulment and ancillary orders following the conversion of one party to Islam cannot be made by the Syariah Court.

Following this, the Federal Court set aside the High Court and Court of Appeal orders granted the mother custody of son, eight-year-old V Mithran @ Mohd Nabil, who will stay with the father in Kuala Pilah.

Daughter Sharmila @ Nur Nabila, 12, is now studying at an international school in Johor Baru.

Both the children had embraced Islam and the civil High Court did not disturb the conversion.

Court of Appeal president Justice Md Raus Sharif said both the children have settled well.

"Parties are to make the arrangements for access rights of the children," he said.

Earlier, in ruling that civil court have jurisdiction, Justice Raus said it is a settled law as decided in the previous cases of R Subashini and Tan Soo Moi .

“The Syariah Court do not have the jurisdiction in cases concerning civil marriages prior to one's conversion to Islam. The Syariah Court only has jurisdiction if it involves marriages in Islam,” he said.

Justice Raus, who is the second most senior judicial officer in the country, ruled that the Civil Court and Syariah Court should not transgress each other as both courts should look into dissolution of the marriage in accordance with the laws enacted by Parliament and in compliance with state laws.

He further ruled that the Syariah Court in Seremban was wrong to dissolve the marriage between Deepa and Izwan as the existing syariah law in Negeri Sembilan does not give judges the power to do so.

The other judges in the panel today were Chief Judge of Malaya Justice Zulkefli Ahmad Makinudin, Justice Abdull Hamid Embong, Justice Suriyadi Halim Omar and Justice Azahar Mohamed.

The judges met the two children for about 35 minutes before delivering their judgment.

Two questions were posed to the apex court:

  1. Whether, in the context of Article 121(1)(a) of the Federal Constitution, where a custody order is made by the Syariah Court or the High Court on the basis that it has jurisdiction to do so, whether there is jurisdiction by the other court to make a conflicting order; and
  2. Whether, in the interpretation of Sections 52 and 53 of the Child Act 2001, a recovery order can be made when there exists a custody order given by the Syariah Court that is enforceable at the same time.

Justice Raus ruled the second question in the negative while for the first, he said the civil court has the right jurisdiction to decide on custody order and divorce in civil marriages.

As the bench ruled the second question in the negative, the judge said the High Court should not have ruled under the Child Act for custody of the children to the mother when there is an order by the Syariah Court earlier for custody given to the father.

Following today's decision, the apex court quashed the custody order made by the High Court and Court of Appeal, and also the Syariah Court.

Custody order based on Section 88(3)

The panel made the variation on the custody order based on Section 88(3) of the Law Reform (Marriage and Divorce) Act 1976 which gives the power to the court to make such an order.

Section 88(3) states: "There shall be a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of a child by changes of custody."

Izwan, a lorry driver and an NGO worker, and Deepa ( photo ), were married under Hindu rites in 2003.

Izwan converted to Islam in 2011 after divorcing his wife, and also unilaterally converted their two children to Islam two years later.

Deepa won custody of the two children at the High Court in Seremban on May 2014 and the Court of Appeal affirmed the decision by the High Court on May 23, last year.

Two days after the Seremban High Court made the order, Izwan snatched the son who was then aged six.

After an hour's break to discuss on the issue of access to the children, lawyer Hanif Khatri Abdulla for Izwan, said both parties have agreed in court to meet the children – at a joint meeting held on a Saturday once every two months – at the premises of Siti Aishah, the maternal grandmother of the children.

In the event either party is not able to attend the appointment fixed, then sufficient notice would be given for replacement meeting, also on a Saturday.

Both parties also agreed to give the other party reasonable telephone conversation access to the children, without limitation to time and day, subject to availability.

In order to avoid any confusion, there should be no overnight stay for the children.

Lawyer Fahri Azzat for Deepa told the court earlier that the Seremban High Court had granted maintenance for the children to the amount of RM500 a month.

Hanif said maybe this amount should be reduced to RM250 a month since both parents are granted custody to one child each.

To this, Justice Raus allowed the terms as agreed by the parties and made no order as to costs.