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Justice and jurisdictions The Shamala Sathiyaseelan v. Dr Jeyaganesh C Mograrajah (Muhammad Ridzuan) custody case
by Rizal bin Chek Hashim
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The High Court initially granted Shamala the custody of her two children, as is usually the case for children below six. However, the father, Ridzuan, obtained a custodial order (ex-parte) for the same children from the Syariah Court in Shah Alam. The custodial order was granted to Ridzuan among others, on the basis that he had converted to Islam and had also converted the two children in Islam. Shamala asserted that the children’s conversion was carried out without her knowledge or consent. Syariah issues warrant of arrest In the same Syariah court proceedings a warrant of arrest was issued against Shamala for her failure to attend the Syariah Court. To this issue Faiza Tamby Chik J, in his Judgement of 11 September 2003 for the Originating Summons (S8-24-3586-02) filed by Shamala, responded: On 27 March 2003 the same Syariah Court issued a warrant of arrest against the plaintiff/wife for failure to attend the said Syariah Court. I cannot understand why the said Syariah Court whose jurisdiction is territorial and over matrimonial disputes involving Muslim marriages only can issue such a warrant. I am of the opinion that it is unconstitutional for the said Syariah Court to issue the warrant of arrest against the Plaintiff/Wife. In any event the order for Warrant of Arrest has been stayed by the court on 17 April 2003 pending the outcome of Saman Pemula No. S8-24-297-2003. Pursuant to the Syariah Court Order, using the weekend custody given by the Civil Court, Ridzuan took the two children to keep them indefinitely. Shamala was allowed to visit the children while Ridzuan, leaning against the Syariah Order (which has no jurisdiction over Shamala) kept the children. Shamala then filed an application for leave to commence a committal proceeding on Ridzuan on 27 May 2003 on the basis that Ridzuan had failed to comply with the interim court order dated 17 April 2003 when Ridzuan
On 11 September 2003, the Civil Court cited the Defendant (husband) for contempt and ordered that the children be returned to the Plaintiff (wife). The Civil Court also declared that the Syariah Court order was not binding on a non-Muslim and set aside the warrant of arrest issued by the Syariah Court. Subsequent to this High Court decision, Shamala applied to the Cvil High Court for a declaration that the conversion of the minor children to Islam was a nullity. On 13 April 2004, the Court dismissed Shamala’s application on the ground that the Civil Court did not have the jurisdiction to hear the matter and only the Syariah Court could adjudicate on such matters. Further, the learned Judge agreed that Shamala did not have the locus to appear in the Syariah Court. The custody application which was filed on 31 December 2002 was finally heard by the Court where the parties had filed written submissions. The High Court, on 20 July 2004, gave joint custody to Shamala and Ridzuan but the care and control over the childrens’ daily life were given to Shamala subject to a ‘caveat’ – that is, if the Plaintiff (wife) taught her articles of faith to the children or made them eat pork then she would lose the right to actual custody of the children Trapped between jurisdictions This decision created some concern over the fairness of our court system especially where litigants are trapped between or confined to only one of concurrent jurisdictions. If one does not have locus in one of the jurisdictions where a suit is heard, can a fair trial be discharged?
1) All persons are equal before the law and entitled to the equal protection of the law.A lay observer of this case might wonder whether Article 8 of the Federal Constitution has been breached. Clearly, the rights of one party are unprotected under the Syariah Laws. Returning to the crux of the issue, that is the custody application, the laws of both jurisdictions seem to be in tandem. Section 5 of the Guardianship of Infants Act 1961 states that: (1) In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allows to a father, and the rights and authority of mother and father shall be equal.Section 88 of the Law Reform (Marriage and Divorce) Act 1976 states that: (1) The court may at any time by order place a child in the custody of his or her father or his or her mother or, where there are exceptional circumstanced making it undesirable that the child be entrusted to either parent, of any other relative of the child or of any association the objects of which include child welfare or to any other suitable person.According to Syariah Laws, custody or hadanah of a child (defined by Syariah Court practice as one who is below the age of seven) is provided by Section 81 of the Undang-Undang Keluarga Islam (Wilayah-Wilayah Persekutuan) 1984: (1) Tertakluk kepada Seksyen 82, ibu adalah yang paling berhak dari segala orang bagi menjaga anak kecilnya dalam masa ibu itu masih dalam perkahwinan dan juga selepas perkahwinannya dibubarkan.Despite the above provision, which favours the mother in any custodial application, a very heavy caveat is placed on a situation where a non-Muslim parent is involved. According to Section 82 of the same Act: Seseorang yang mempunyai hak mendidik seseorang kanak-kanak, adalah berhak menjalankan hak terhadap hadanah jikaTherefore, it was not surprising that the Syariah Court decided to give custody to Ridzuan upon his application. The children In the matter regarding Shamala and Ridzuan, the true victims, in my opinion, are their children. If the parties should put emphasis on these more fragile victims, and if we erase the word ‘Hindu’ or ‘Muslim’ from the relevant portions of the texts of their case, the priorities would be much clearer. The provisions in Section 88 (2) of the Law Reform (Marriage and Divorce) Act 1976, which gives paramount consideration to the welfare of the children, must be the beacon by which one evaluates the rights and appropriateness of orders granted to the litigating parties. As for the failed marriage between Shamala and Ridzuan, and the latter’s conversion to Islam, the law is clear and well defined as stated by Faiza Tamby Chik J in his 11 September 2003 decision: What is before me is a dispute involving a Hindu marriage between the plaintiff wife and the defendant husband entered into on 5 November1998. As the law, statutory and case law stand today, the defendant husband’s obligation under the said Hindu marriage will not and cannot be extinguished or avoided by his conversion to Islam. His wife’s application is under the Act. The defendant husband by converting to the Islamic faith is in effect converting his marital status from a monogamous marriage to a polygamous marriage. Under Section 51 of the Act the defendant husband cannot file a divorce petition against his unconverted plaintiff wife who remains a Hindu. She remains his wife though a non-Muslim. Only she may petition for divorce on the ground that the defendant husband has committed a matrimonial offence by his conversion to Islam. I am of the opinion that the defendant husband, now a Muslim though, cannot file a petition for divorce against his plaintiff Hindu wife, can take another wife-a Muslim wife because the defendant husband being a Muslim is now practicing a polygamous marriage. His wife by Hindu rites remains his wife. He has to support her and the children until and unless the civil marriage is dissolved and the petition for dissolution of that Hindu marriage may only be presented by the unconverted wife under Section 51 of the Act.The above situation gives rise to a problem that may be summarized thus. First, the civil marriage is very much alive unless it is brought to an end by the unconverted spouse. The unconverted spouse, so long as he or she chooses to be so, shall remain the unconverted husband or wife. The converted spouse, in this case a Muslim, cannot do anything. Second, the converted spouse cannot obtain a divorce at all. On the issue of the conversion of a spouse in an Islamic marriage, by Section 46 (2) of the Akta Undang-Undang Keluarga Islam (Wilayah-Wilayah Persekutuan) 1984: Jika salah satu pihak kepada sesuatu perkahwinan bukan Islam memeluk agama Islam, maka perbuatan yang demikian tidak boleh dengan sendirinya berkuatkuasa membubarkan perkahwinan itu melainkan dan sehingga disahkan sedemikian oleh Mahkamah. Again, and it may surprise many, the approaches of both jurisdictions seem to be in tandem: the marriage does not dissolve instantaneously upon the conversion of one spouse but requires an affirmative order from the respective courts. Joint custody Finally, the 20 July 2004 High Court decision gave joint custody to Shamala and Ridzuan, but gave daily care and control of the children to Shamala alone subject to the ‘caveat’ already mentioned earlier. Law practitioners may find the caveat unusual especially if they were to consider the provisions of Article 121 of the Federal Constitution which provides that the High Court, and Courts Subordinate to it, shall have no jurisdiction over any matter over which the Syariah Court has jurisdiction. Harun Hashim SCJ, in Mohamed Habibullah bin Mahmmod v Faridah bte Dato’ Talib (1993) 1 CLJ 264 (p. 268), said: it is obvious that the intention of Parliament by Art. 121 (1A) is to take away the jurisdiction of the High Courts in respect of any matter within the jurisdiction of the Syariah Court. Dalip Kaur V Pegawai Polis Daerah, Balai Polis Daerah Bukit Mertajam & Anor. I am therefore of the opinion that when there is a challenge to jurisdiction, as here, the correct approach is to firstly see whether the Syariah Court has jurisdiction and not whether the State Legislature has power to enact the law conferring jurisdiction on the Syariah Court.Article 121 of the Federal Constitution clearly spells out the separation of powers and jurisdiction of the Civil and Syariah Courts. If the Civil Court transgresses on the jurisdiction of the Syariah Court by enforcing caveats on the practice of Islamic teaching, would it not seem that the Civil Court is taking on the role as the custodian of the Syariah Laws? If the Civil Court were to do so would it not breach the philosophy behind Article 121 of the Federal Constitution? In view of the conflicting predicaments discussed above, it is my humble suggestion that current laws pertinent to them should be carefully reviewed.
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In the matter regarding Shamala and Ridzuan, the true victims, in my opinion, are their children.
