S. Deepa (The Star)

The Federal Court has held that a non-Muslim marriage does not dissolve automatically when one of the parties converts to Islam.

In a written judgment issued on Monday, Court of Appeal president Justice Md Raus Sharif, who chaired the five-man panel which heard the custody battle between Muslim convert Izwan Abdullah and his Hindu ex-wife S. Deepa (pic) said that the civil courts continue to have jurisdiction over divorce and custody proceedings despite the conversion of a spouse to Islam.

'€œThe ex-husband and the ex-wife were Hindus at the time of their marriage. By contracting the civil marriage under the Law Reform [Marriage & Divorce] Act 1976 [LRA] they are bound by its provisions in respect of divorce as well as custody of the children of the marriage. The matter of dispute in this case is not within the jurisdiction of the Syariah High Court,'€ said Md Raus.

He added that Article 121(1A) of the Federal Constitution was not introduced to oust the jurisdiction of the civil courts, saying that it was introduced to avoid any conflict between Syariah and civil court decisions.

'€œIn this case the conflict arose because the ex-husband had brought his case to the Syariah High Court. But as discussed earlier, the LRA continues to bind the ex-husband despite his conversion to Islam. The Syariah courts have no jurisdiction over the ex-husband'€™s application to dissolve his civil marriage or over custody of the children born from the civil marriage under the LRA,'€ said Md Raus.

He said the Syariah courts only have jurisdiction over matters relating to divorce and custody when it involves a Muslim marriage solemnized according to Muslim law.

'€œWhen one of the parties is a non-Muslim, the Syariah courts do not have the jurisdiction over the case even if the subject matter falls within their jurisdiction,'€ added Md Raus.

The custody battle between Izwan and Deepa ended last Thursday with each getting one child.

In handing down the decision, Md Sharif said the court was setting aside the orders of the High Court and Court of Appeal with regard to custody. The lower courts had given custody of both children to Deepa.

Md Raus also recorded a consent agreement between Izwan, 33, and clerk Deepa, 32, on access to the children.

Both agreed to allow the other access to the children on a Saturday, once every two months, at Deepa'€™s mother'€™s house in Jelebu, Negri Sembilan.

They also consented to reasonable access via phone without limitation, subject to the children'€™s availability. No overnight stay was allowed.

Others on the panel were Justices Zulkefli Ahmad Makinudin, Abdull Hamid Embong, Suriyadi Halim Omar and Azahar Mohamed.

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