The Federal Court said the High Court should not have entertained the application for a recovery order by S Deepa when there are two conflicting custodial orders.

A recovery order is a legal order to locate and return a child. In this case, the order obtained by Deepa was to take the eight-year-old Mithran @ Mohd Nabil from her former husband's home or Taska Abim Nur Ehsan or any premises.

Court of Appeal president Md Raus Sharif said while the court acknowledges the Syariah High Court has no jurisdiction in this case to make the custody order, the syariah order (for custody to remain with the husband) remained a valid order until it is set aside.

"Thus, the High Court judge cannot direct the inspector-general of police or his officers to execute the High Court judgment, irrespective of the Syariah High Court order.

"Thus on the facts of this case, both the Syariah High Court and High Court orders bind the IGP and his officers either way. Clearly, the execution and performance of one order is impossible without being in contempt of the other."

Justice Raus ( photo ) said the court is of the view that based on facts and circumstances, the recovery order should not have been issued because the pertinent element of Section 52 of the Child Act had not been fulfilled.

N Viran @ Izwan Abdullah obtained the Syariah Court order, granting him custody of his two children, on Sept 19, 2013 while Deepa obtained the order from the civil High Court on April 7, 2014.

It was reported that Izwan snatched the son two days after the Seremban High Court order.

Section 52(2) of Child Act

Justice Raus further explained that under Section 52(2) of the Child Act, the phrase “lawful custody of a child” is defined as a person having been conferred custody of the child by virtue of any written law by an order of a court, be it the Civil Court or Syariah Court.

“It is clear from Section 52(2) that a custody order by the Syariah Court is a lawful custody order,” he ruled.

This is regardless of the apex court's decision which stated that the Syariah Court not having the jurisdiction.

The other four judges on the bench were Chief Judge of Malaya Zulkefli Ahmad Makinudin, and Federal Court judges Justice Abdull Hamid Embong, Justice Suriyadi Halim Omar and Justice Azahar Mohamed.

The decision in the Deepa case last week would have an impact on another highly-charged case of M Indira Gandhi and K Pathmanathan @ Mohd Ridhuan Abdullah.

However the facts slightly differ in Indira Gandhi's case where Ridhuan, who had seized 11-month-old Prasana Diksa from the mother in 2009, had not appeared in court after taking the child.

As in Deepa's case, there is a recovery order from the Civil Court and the Syariah Court, but in addition, Indira Gandhi succeeded in her contempt proceedings against Ridhuan.