A three-member bench chaired by Justice Harmindar Singh Dhaliwal dismissed the 37-year-old woman’s appeal from an order of the Kuantan High Court requiring her to return the child to her former spouse.

Harminder said the evidence before the court suggested that the 41-year-old father had custody of the child until she was snatched by her mother.

“The respondent (husband) had de facto custody of the child for four years until the child was taken away by the appellant (mother),” he said.

Harmindar, who sat with Justices Abu Bakar Jais and Abdul Karim Abdul Jail, however said today’s ruling would not affect ongoing custody proceedings in the Kuantan High Court.

The apex court also extended a gag order to prevent the identities of the parents and child from being made public.

In May last year, the High Court allowed the husband’s habeas corpus application and ordered that the child be returned to the father.

The order was made without Justice Zainal Azman Abdul Aziz having the benefit of hearing the ex-wife’s version of events as her lawyers did not file any affidavit in response to the application.

At the time of the order, the girl’s parents were embroiled in a custody battle before Zainal, who has since retired.

Earlier today, the bench also dismissed the ex-wife’s application to adduce fresh evidence. In her application, she alleged that the lawyers who represented her in the High Court were incompetent.

Harmindar said the application did not meet the strict criteria laid down by the law for the introduction of new evidence.

On the merits of the appeal, lawyer Haniff Khatri Abdullah argued that the girl was an illegitimate child as the marriage of the couple was not legally registered.

“The mother has a better right to custody of the girl since she was born illegitimate,” he said.

Haniff said the habeas corpus application filed last April was an abuse of process.

“This is not the fault of the court but the ex-husband who filed the application in a conniving way to get a remedy,” he said.

Lawyer Bastian Pius Vendargon, however, pointed out that, unlike other non-Muslims, the Orang Asli community was exempt from registering their marriages.

“The Tok Batin has the authority to solemnise such aboriginal marriages and this is allowed under the Aboriginal Peoples Act 1954,” he said.

He said the community is patriarchal by nature. As such, custody of children must remain with the father.

Vendargon said except for the girl’s birth status, the other submissions by Haniff could not be entertained as they were not premised on affidavit evidence.

He said the couple was married according to customary rites sometime in 2012 but the ex-wife later converted to Islam.

In 2018, she left the child with her ex-husband, who then raised the girl with the help of his relatives and the community.

He said the ex-wife had gone to the shariah court in her attempt to gain custody of the child but withdrew her application.

She then took the child from school and filed an application for custody in November 2022.

The ex-husband filed the habeas corpus application last April. It was allowed the following month.

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