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By Jeremy D. Morley*
In Malaysia the sharp split between two judicial systems for
child custody cases, with custody cases between Muslims being conducted before
Shariah courts while other cases are conducted before civil courts, the Shariah
rules that favor Muslims, and uncertain rules and practices as to whether a
child may be unilaterally converted to Islam, have provided non-Muslim fathers
in Malaysia with a devious ploy to procure sole custody of their children. They
convert to Islam, then purport to convert their children to Islam and then
petition the Shariah courts for sole custody. Article 121(1A) of the Malaysian
Federal Constitution provides that the
Civil High Courts in Malaysia have no jurisdiction in respect of any matter
that falls within the jurisdiction of the Syariah Courts.
In one such battle that is ongoing and has lasted for five
years so far – reported in the article below
– even though the High Court in Malaysia ruled in favor of the child’s
mother, the Malaysian police are refusing to enforce the return order.
* Jeremy Morley handles many
international family law matters between the United States and Malaysia, always
acting with local counsel as appropriate, and has provided expert witness
testimony as to Malaysia’s child custody laws.
MALAYSIA INSIDER
BY MUZLIZA MUSTAFA
Published: 23 June 2014
IGP defies court order in inter-faith child custody battle
Despite a court order to locate and
return a child in an inter-faith custody battle, Tan Sri Khalid Abu Bakar (pic)
maintained his earlier stand that police will not comply with it as there were
two conflicting verdicts in the case.
The Inspector-General of Police said he will not act on the
Ipoh court order instructing the police to reunite Prasana Diksa with her Hindu
mother M. Indira Ghandi.
Indira’s ex-husband, Muslim convert Muhammad Ridzuan
Abdullah, had secured custody of the child from the Syariah court.
Khalid said that the matter is being looked into by
Putrajaya and he wished not to comment further on the matter.
"The fact remains that there are two conflicting
verdicts. The matter is being looked into at the moment. I am not saying that
police will not take action. I just wish not to comment on it at the
moment," said Khalid in a press conference at a function at University
Teknologi Mara in Shah Alam today.
Khalid stressed the same point even when pressed further by
the media.
"You guys are waiting for me to say something else? I
wish not to comment further," said Khalid.
Khalid was served with the court order directing police to
locate and hand over the daughter of a kindergarten teacher entangled in an
inter-faith child custody dispute four days ago.
Lawyer M. Kulasegaran representing Indira, said the High
Court order was served on Khalid to instruct his men to locate Indira’s
ex-husband Muhammad Ridzuan Abdullah in any part of the country and hand over
the child, Prasana Diksa (Ummu Habibah), to the mother.
"This order speaks for itself and we hope the police
will give effect to the court order immediately," Kulasegaran told The
Malaysian Insider last week.
Indira obtained the order two weeks ago following Khalid's
statement that minors in inter-faith child custody cases should be placed in
childcare centres to be fair to both parents.
Khalid had earlier said police will not act on orders from
either the civil or syariah court in such cases as police were “sandwiched”
between two court systems.
On May 30, High Court judge Lee Swee Seng found Ridzuan
guilty of contempt and gave him one week to hand over their daughter to Indira,
or face imprisonment.
Ridzuan defied the order when he failed to turn up in Ipoh
upon expiry of the deadline to hand over the child.
Indira had also applied for a recovery order to compel
police to get Prasana from Ridzuan, who is said to be in Kota Baru, Kelantan.
Indira had filed contempt proceedings last year against
Ridzuan, who was previously known as K. Patmanathan, for refusing to hand over
their daughter.
In 2010, the High Court granted custody of their three
children – Tevi Darsiny, 16, Karan Dinish, 15, and Prasana, 3
– to Indira.
Ridzuan has held on to Prasana since April 2009. The girl
was 11-months-old at the time.
Ridzuan had, in 2009, obtained custody of the three children
from the Shariah High Court after he unilaterally converted them.
However, in July last year, Judge Lee quashed the
certificates of conversion as unconstitutional.
