Judge Rules Civil Court Superior to Syariah

Malaysiakini 20 May 2014
The civil High Court has a higher jurisdiction than the syariah court on the religious dispute of a spouse who does not convert to Islam, the High Court in Ipoh ruled today.
In giving convert father K Pathmanathan @ Muhammad Ridhuan Abdullah one week to return his six-year-old daughter to the non-Muslim mother, M Indira Gandhi, the court also found the father guilty of contempt.

Judge Lee Swee Seng said failure to hand over the child would require the police to enforce a warrant of arrest on Pathmanathan for committing contempt and not abiding by the court order.

Reading out his two-and-a-half hour judgment, Justice Lee said the supervisory jurisdiction of the civil High Court is based on the fact that a syariah court decision cannot bind a non-Muslim party in a marriage.

He said the country practises secular law under which the civil High Court has unlimited jurisdiction and is superior in nature to the syariah court.

“Following this, the father must surrender the child to Kula &Associates by noon next Friday,” Justice Lee ruled.

He had earlier rejected an application by Pathmanathan’s lawyer, Anas Fauzi, for a six-month stay on the contempt order and ordered that the child be returned within a week.

The contempt order, Justice Lee said, could only be set aside with Pathmanathan returning the child, Prasana Diksa.

Pathmanathan took Prasana away in 2009, when she was 11 months old.

In a landmark decision last year, Justice Lee overturned the conversion to Islam of all three underaged children of Pathmanathan and Indira.

The couple has two other children, a 17-year-old daughter and a 16-year-old son, who are in the custody of the mother.

Police should act

While Pathmanathan was not in court today, as in earlier proceedings, the court said its custody order is nevertheless binding on him.

Justice Lee said the husband cannot depend on a Syariah High Court order he obtained as an excuse not to comply with the civil High Court custody order.

He further declared that the Syariah High Court custody order as null and void, which Pathmanathan also cannot rely on as a shield for contempt proceedings against him.

“The Syariah High Court has no jurisdiction to grant custody as the other party is not a Muslim,” he said.

Justice Lee warned that any person who disobeys a civil court order will be found to be in contempt, deliberately and willfully.

He also ordered the police to act and not to fold their arms in the event Pathmanathan does not obey this High Court order.

In addition to this, Justice Lee also ordered Pathmanathan to pay RM5,000 as costs to the mother.

The granting of custody to the non-Muslim mother today is the second in less than two weeks, after the High Court in Seremban granted S Deepa custody of her two children. Deepa’s convert husband failed to get a stay order from the Court of Appeal.
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Court Gives Muslim Convert one Week to Hand over Daughter to Ex-Wife

The MalaysianInsider 30 May 2014 by V. Anbalagan

Indira Ghandi (centre) with her children, Tevy Darsiny, 16 (right) and Karan Dinish,15. Indira is fighting to get her youngest daughter back from her ex-husband. – The Malaysian Insider pic, May 30, 2014.Indira Ghandi (centre) with her children, Tevy Darsiny, 16 (right) and Karan Dinish,15. Indira is fighting to get her youngest daughter back from her ex-husband. – The Malaysian Insider pic, May 30, 2014.A Muslim convert who has been found guilty for contempt by an Ipoh High Court has been given  until next Friday to hand over his infant daughter to his his estranged ex-wife, M. Indira Gandhi, or face imprisonment.

Judge Lee Swee Seng ordered Muhammad Ridzuan Abdullah to return Prasana Diksa to kindergarten teacher Indira by the deadline or face the consequences.

“Failing which he will be jailed until he purges his contempt,” Lee said in directing Ridzuan to hand over Prasana Diksa to the legal firm of Kula & Associates by noon next Friday.

Lawyer M. Kula Segaran is one of the lawyers appearing for Indira.

Lee also ordered the police to help locate Ridzuan and Prasana Diksa whose whereabouts are unknown.

The judge also  ordered Ridzuan, who was not in court, to pay RM5,000 in cost to Indira.

This is the second time in 10 days that the civil court had given relief to mothers who had been suffering in silence when their ex-husbands defied custody orders.

On May 21, a High Court in Seremban granted a similar order to S. Deepa but police had yet to locate her son despite a sealed copy of the document given to Bukit Aman last Friday.

Last year, Indira had filed contempt proceedings against Ridzuan, who was previously known as  K.Patmanathan, for his refusal to hand over their daughter.

In 2010, High Court judge Datuk Wan Afrah Wan Ibrahim ordered custody of the three children – Tevi Darsiny, 16, Karan Dinish, 15, and Prasana Diksa, 3, to be given to Indira.

However, Ridzuan refused to return Prasana Diksa (now known as Ummu Habibah) to Indira.

He has been holding on to Prasana Diksa since April 2009 when she was 11 months old.

The Shariah High Court in Ipoh had in 2009 given Ridzuan custody of the three children after he unilaterally converted the children.

Last July 25, Lee, in a landmark decision, quashed the certificates of conversion of the three children and ruled that the certificates were null and void because they were unconstitutional.

Under the Perak state enactment, it was a statutory requirement for a child to be present before a certificate of conversion could be issued.

He also cited provisions under the Perak Shariah law where the children must be present to utter the affirmation of faith (Dua Kalimah Syahadah).

Lee today also declared as null and void the custody order issued by the Shariah High Court.

He said it was the High Court that has supervisory power over Shariah courts which only had limited jurisdiction.

“The religious court is an inferior court and its powers and jurisdiction are limited by state enactments,” he said.

Lee said the Shariah court had no jurisdiction to grant custody order as the other party  (Indira) was not a Muslim.

“The Shariah court is inherently incompetent to deal with the custody order. A child is a product of the marriage of husband and wife, so no custody order can be given by a court of law when the wife is not heard,” he said.

Lee said Ridzuan could not depend on a Shariah High Court order as an excuse to not comply with the High Court order.

He said he had jurisdiction to hear the matter (the contempt proceedings) as to decline it would mean that he was was abdicating his duty.

“The Shariah High court’s ruling is null and void and cannot be relied upon as a shield to the contempt proceedings brought in the civil court,” he said.

Lawyer Aston Paiva also represented Indira Gandhi while New Sin Yew appeared for the Bar Council. – May 30, 2014.

 

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