The Federal Court today sought to explain in greater details why it decided to split the custody of S Deepa's children with her former husband N Viran @ Izwan Abdullah, citing that a custody order is not final and conclusive.

In his 33-page written judgment, Court of Appeal president Justice Md Raus Sharif said if any change has taken place in the circumstances of the parties which warrants a reconsideration of the matter, the court is not bound by a former order, but will use its discretion to change the conditions, always bearing in mind the welfare of the children or infants affected.

When announcing the verdict in open court last week, he referred to Section 88(3) of the Law Reform (Marriage and Divorces) Act 1976, citing desirability in the interests of the child.

Justice Raus noted that eight-year-old V Mithran @ Mohd Nabil was taken away from Deepa's home by Izwan two days after the Seremban High Court granted her custody.

Since then, the boy remained with Izwan, while Sharmila @ Nur Nabila, 12, remained with Deepa.

“Bearing in mind that the welfare of the children is the paramount consideration, we have taken the liberty to see both the children in our chambers in order to determine whether their wishes to be with their mother remained the same.

“Mithran introduced himself as Nabil Abdullah. We found him capable enough to express his independent opinion and to decide his preference whether to live with this father or mother. He told us in clear terms that he is very happy to live with his father. He also told us that he does not wish to live with his mother.

“Sharmila, we found her to be mature enough to express her independent opinion and to decide her preference whether to live with his father or mother. She told us without hesitation that she prefers to live with her mother rather than her father.

“She also informed us that she is now residing with her mother in Johor Baru and is a student at an international school there. She said she is very happy with her mother and does not wish to live with her father,” Justice Raus, who is the second highest judicial officer in the country, wrote.

Hence, he said the court found both children are certain of their choices.

The court, Raus added, found that both are settled and well cared for respectively.

“We are of the view that taking into consideration the welfare of the children as a paramount importance, it is undesirable to disturb the present arrangement.

“In the circumstances, we have to vary the custody order granted by the High Court by making an order that the custody of Sharmila remain with the ex-wife and Mithran to the ex-husband,” he said.

No conflict in jurisdiction

Justice Raus further cited Federal Court cases of Manickam vs Intherahnee, and Mahabir Prasad, which stated that a determination as to whether a child is able to express an independent opinion depends greatly on the peculiar facts of the case and the assessment of the judge of those circumstances.

“From the cases that have been decided, it may be reasonable to suggest here that the children above the age of seven can be presumed... to be capable of giving independent opinion,” he said.

The Federal Court reinforced the meaning of Article 121 (1A) of the Federal Constitution, made in 1988, that was to avoid conflicts between decisions of syariah and civil courts.

Justice Raus said the conflict arose in this case because Izwan had taken his case to the Syariah High Court.

However, he said, as shown in the cases of R Subashini vs T Saravanan and Tang Sung Mooi vs Too Miew Kim, the Law Reform (Marriage & Divorce) Act 1976 (LRA) continues to bind the ex-husband's application to dissolve his civil marriage with the ex-wife.

"The syariah court has no jurisdiction over the ex-husband's application to dissolve his civil marriage. Neither has the syariah court jurisdiction over custody of children born from the civil marriage under the LRA.

"The syariah court has jurisdiction only over matters relating to divorce and custody when it involves Muslim marriage solemnised according to Muslim law.

“When one party is a non-Muslim, the syariah court does not have jurisdiction over the case, even if the matter falls within their jurisdiction," the judge wrote.

Justice Raus further opined that it was important that the Civil Court and Syariah Court do not transgress into each other's jurisdiction.

As pointed out by former Chief Justice Abdul Hamid Mohamad in the case of Latifah Mat Zain, if laws made by Parliament and the state legislature are in strict compliance with the Federal and state list, then there should not be any situation where both courts have jurisdiction over the same subject matter.