“We are of the view that taking into consideration the welfare of the children as of paramount importance, it is undesirable to disturb the present arrangement,” he said.
In the circumstances, he added, “we have to vary the custody order granted by the High Court by making an order that the custody of Sharmila remain with the ex-wife while custody of Mithran to be with the ex-husband.”
The Federal Court Panel had earlier interviewed both children in Chambers.
The apex court was considering the first of two questions in law. The first: “Whether in the context of Article 121(1A) of the Federal Constitution, where a Custody Order is made by the Syariah Court or the Civil High Court, on the basis that it has jurisdiction to do so, whether there is jurisdiction for the other court to make a conflicting order.”
The Civil Courts, held the judgment, have the exclusive jurisdiction to grant decrees of divorce of a civil marriage under the LRA (Law Reform Act) and to make all other ancillary orders including custody care and access of the children born out of that marriage and all other matters ancillary thereto. “It’s an abuse of process for the spouse who has converted to Islam to file for dissolution of the marriage and for custody of the children in the Syariah Courts,” said Judge Raus. “This is because the dispute between parties is not a matter within the exclusive jurisdiction of the Syariah Courts.”
Therefore, he explained, Article 121(1A) of the Federal Constitution which deprives the Civil Courts jurisdiction in respect of any matter within the jurisdiction of the Syariah Courts is not applicable in this case.
In conclusion, he continued, “we are of the view that on the facts and circumstances of this case, the recovery order should not have been given because the pertinent element under Section 52 of the Child Act had not been fulfilled”.
“Accordingly we would answer Question 2 in the negative. We, therefore allow the appeal on the recovery order. The orders of the Courts below are set aside.”
Question 2 read: “Whether on the interpretation of Section 52 and 53 of the Child Act 2001, a Recovery Order can be made when there exists a custody order given by the Syariah Court which is enforceable at the same time.”
In the present appeal, noted the Court, there are two custodial orders. One was the Syariah High Court’s order dated 19 September 2013, which granted custody of the children to the ex-husband. The other was the Civil High Court’s order dated 7 April 2014, which gave custody of the children to the ex-wife.
“We are of the view that in light of the existence of the two conflicting custodial orders, the High Court Judge should not have entertained the application of the ex-wife for the recovery of Mithran from the ex-husband,” said Judge Raus. “We acknowledge that by our decision in relation to Question 1, the Syariah Courts have no jurisdiction in this case to make the custody order.”
However, he stressed, the Syariah Court order remained a valid order until it is set aside. “Thus, with respect, the High Court Judge, cannot direct the IGP or his officers to execute the High Court Judgment, irrespective of the Syariah High Court Order.”
Thus, he continued, on the facts of this case, both the Syariah High Court Order and Civil High Court Order bind the IGP and his officers either way. “Clearly, the execution and performance of one order is impossible without being in contempt of the other.”