Curious decisions in Indira & Deepa

An odd sort of day at the Palace of Justice in Putrajaya, Malaysia on Wednesday, December 17, 2014.

There were two appeals before Malaysia’s intermediate appellate court, the Court of Appeal, in a case where mothers were complaining about their estranged husbands not returning their children to them. The fathers had converted to Islam, and had secretly obtained orders from state syariah courts granting them custody. The mothers in turn obtained custody orders from the civil High Court.

Details are in the following two news reports:-

The net effect of these judgments seem to be as follows:

1. The mothers won on the custody issue – The Court of Appeal unanimously held that only the civil High Court has jurisdiction to determine which parent has custody of children born to a non Muslim couple, and to dissolve their marriage registered under the Law Reform (Marriage and Divorce) Act 1976 (i.e. a law applicable only to the marriages ofnon Muslims) even if one spouse has since converted to Islam (and even if that spouse purported to convert the children to Islam).

2. The mothers also won on the Recovery Order issue – The Court also unanimously held that the Seremban High Court was correct to grant a recovery order under section 53 of the Child Act 2001, which directs the spouse to return a child to the parent with “lawful custody” of the child. The order can also direct the police to assist to recover the child.

Thus, the Court of Appeal effectively overruled contentions that the father also had valid custody of the child by virtue of a Syariah Court order purporting to grant him custody.

BUT

3. The mothers failed to get an order of mandamus against the police – Despite all the above, the Court of Appeal (by a 2-1 majority) held that the mothers’ can’t get an order of mandamus to compel the police to arrest the husband if he breaks the above Court Orders. (An order of mandamus is an order of Court compelling a public officer who has failed or refused to carry out a public duty to perform that duty. It is a necessary pre-requisite to citing that public officer for contempt of court.) In short, the husband must do all the above things but it’s not the police’s job to ensure compliance with the order. There seems to have been a suggestion that the mothers’ must instead ask the Court bailiffs to enforce the orders.

This last decision is very curious.

The Court had found the husband to have been in contempt of court, and had issued a warrant of arrest directing that the husband be arrested and brought before the Court. This is a common form of order in all civil contempt proceedings. The warrant and order of committal commits the person who has committed contempt (the contemnor) to civil prison until he purges the contempt i.e. complies with the Order.

If indeed a bailiff is empowered to execute a warrant of arrest in this way, I think this would be a very significant change to how the Court process works in Malaysia. Hopefully, the full grounds of judgment of the Court of Appeal is out soon so some questions people have will be answered.

Disclaimer: The writer is on the legal team of both Deepa and Indira, the mothers involved in the two disputes.

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Shanmuga K sometimes sees a purple banana emerging in his sub-conscious. An article seems to then be magically written. He is @shanmuga_k on Twitter. When he does not see those purple bananas, he practices as a lawyer at www.kanesalingam.com

Posted on 18 December 2014. You can follow any responses to this entry through the RSS 2.0.

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11 Responses to Curious decisions in Indira & Deepa

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  7. I'm sure this is a very difficult case. But also a very interesting one. It's hard to think sometimes that things can differ so much from one culture to another. I think what these mothers are going through is horrible and, of course, wrong. But it's not their world, is it?

  8. siewchin

    Can a court bailiff execute a Warrant of Arrest?

    Just like a JDS, when a warrant of arrest is ordered – it is the bailiff accompanied by a police officer who will haul the defaulter to court?

    It will thus mean that the mother should be the one who locates the ex-husband first, then only call the bailiff to execute the warrant.

    Ex-husband legal counsel should facilitate an amicable settlement. The welfare and upbringing of a child in an environment of love and compassion is at stake. No adult should fail a child. More so adults who are of intellect and god-fearing.

  9. Aston Paiva

    Bumi non Malay,

    We should never do that as civilized people.

    Have faith in the law.

    I'm hopeful that the Honorable Inspector General of Police will exercise his discretion to enforce the warrant and the orders.

  10. bumi non malay

    Gather on 1 Jan 2015 near where this BUGGER stays with some Islamic terrorist NGO protecting the Premise…. We storm the premise…. USE UNREASONABLE Force to return the Kid to the Mother…and SEND a CLEAR Message to the UMNO Islamic terrorist of Malaysia in cahoots with Sultan-Agong and the sisi of Islam in Iraq/Syria…they are ALL Terrorist against the Norm of Society… No need to reason with EVIL and EVIL Doers!! Obliterate them to have a better Future!!

  11. alicakap

    The decision about the police will open up the flood gate to kidnapping. There are thousands of custody battles every year and this is likely to rise. It looks like the losing party can now go to a child-care center, kindergarten or school and forcefully take away the child. The police need not do anything!
    It is unfortunate that judges and law enforcement agencies in Malaysia have allowed their own religious loyalty to interfere with their judgement. I am very sure that if this case was between 2 non-Muslim parties the police would have acted and this appeal would have been not necessary.
    Sadder still is that religious belief have colored decisions by administrators in schools, and all institutions and organizations headed by Malay-Muslims. From sign boards to dress code to food each administrator has been trying their hardest to prove their religious credentials and allegiance. This has spread the feeling and suspicion of unfairness in all our government related institutions. Fair-minded Malays are silenced by fear and non-Malays are silenced by intimidation. And this poisons the environment.