Apex court grants custody of son to Izwan, daughter to Deepa (Updated)

PUTRAJAYA: In a landmark decision today, the Federal Court ruled that it is the civil court which should decide on dissolution of marriages and custody of children in cases where one spouse has converted to Islam.
A five-man bench chaired by Court of Appeal president Tan Sri Md Raus Sharif delivered the ruling in the case involving Hindu clerk, S. Deepa, and her former husband, lorry driver Izwan Abdullah, who had embraced Islam and subsequently converted their two children to Islam without Deepa's approval.
Four other judges in the panel were Chief Judge of Malaya Tan Sri Zulkefli Ahmad Makinudin, Justice Tan Sri Abdull Hamid Embong, Justice Tan Sri Suriyadi Halim Omar and Justice Datuk Azahar Mohamed.
Md Raus said the five-man bench also rescinded the Syariah Court custody order.
He added divorce and child custody from non-Muslim marriages are exclusively under the jurisdiction of the civil court.
Md Raus also highlighted the abuse of the legal process during the custody battle.
"A non-Muslim marriage is not dissolved when one party embraces Islam," Md Raus said while reading the judgment.
"The Syariah Court only has jurisdiction in marriage and divorce matters when both parties are Muslims."
Md Raus stated that the Syariah Court had no jurisdiction over Deepa "since she is a non-Muslim".
He reminded the syariah court and civil court not to intrude and overlap into each other's jurisdiction.
"Both must look into the laws made by Parliament and state legislature as well as comply with the Federal Constitution," Md Raus said.
The Federal Court granted custody of eight year-old Mithran to Izwan and his 11-year-old sister, Sharmila, to Deepa in a legal battle that lasted for more than three years.
Earlier, the judges met the children in chambers and interviewed them for about 45 minutes before delivering the judgment.
"Nabil has clearly expressed his wish that he wants to be with his father while Sharmila wants to be with her mother," said Md Raus.
The unanimous decision by the Apex Court today is a departure from the Seremban High Court decision in 2013 which awarded the custody of both children under the Child Act 2001 to the mother, Deepa.
"We are setting aside the High Court custody order. Nabil follows his father Izwan Abdullah while Sharmila follows her mother," Md Raud said.
"We are guided by the best interest of the children under section 88 (1) of the Law Reform Act (Marriage & Divorce) 1976."
Md Raus said both parents would be able to meet the child not under their custody once every two-months at Deepa's mother's place in Jelebu for five hours between 10am and 3pm.
"The parents can also communicate over telephone, when available, with the children without any restriction," he said.
Md Raus said the variation order was concluded since the children had settled well in their current surroundings.
Izwan, formerly known as N. Viran, married Deepa under civil law on March 19, 2003.
He converted to Islam on Nov 26, 2012.
He then converted his children, Shamila and Mithran to Islam and changed their names to Nur Nabila and Muhammad Nabil, without Deepa's knowledge.
In 2012, the Syariah Court granted custody of the children to Izwan.
On April 7, 2014, the Seremban High Court granted the custody of the two children under Child Act 2001 to Deepa. Two days later, Izwan took away Mithran from Deepa's house.
At the Federal Court today, Deepa was represented by Fahri Azzat and Joanne Leong Pooi Yaen while Haniff Khatri Abdulla and Kamarul Arifin acted for Izwan.
The Attorney-General's Chambers (AGC) was present as intervener and represented by Senior Federal Counsels Suzana Atan and Shamsul Bolhassan.
Datuk Zainul Rijal Abu Bakar held a watching brief for Muslim Lawyers Association while Mohd Khairul Anuar Ismail and Muhamad Raimi Ab. Rahim for ABIM, while Datuk Hanif Hasan for Negri Sembilan Muslim Lawyers Association.