Saturday, May 31, 2014

Judge rules civil court superior to syariah

4:18PM May 30, 2014
The civil High Court has a higher jurisdiction than the syariah court on the religious dispute of a spouse who does not convert to Islam, the High Court in Ipoh ruled today.

In giving convert father K Pathmanathan @ Muhammad Ridhuan Abdullah one week to return his six-year-old daughter to the non-Muslim mother, M Indira Gandhi, the court also found the father guilty of contempt.

Judge Lee Swee Seng said failure to hand over the child would require the police to enforce a warrant of arrest on Pathmanathan for committing contempt and not abiding by the court order.

Reading out his two-and-a-half hour judgment, Justice Lee said the supervisory jurisdiction of the civil High Court is based on the fact that a syariah court decision cannot bind a non-Muslim party in a marriage.

He said the country practises secular law under which the civil High Court has unlimited jurisdiction and is superior in nature to the syariah court.

“Following this, the father must surrender the child to Kula &Associates by noon next Friday,” Justice Lee ruled.

He had earlier rejected an application by Pathmanathan's lawyer, Anas Fauzi, for a six-month stay on the contempt order and ordered that the child be returned within a week.

The contempt order, Justice Lee said, could only be set aside with Pathmanathan returning the child, Prasana Diksa.

Pathmanathan took Prasana away in 2009, when she was 11 months old.

In a landmark decision last year, Justice Leeoverturned the conversion to Islam of all three underaged children of Pathmanathan and Indira.

The couple has two other children, a 17-year-old daughter and a 16-year-old son, who are in the custody of the mother.

Police should act

While Pathmanathan was not in court today, as in earlier proceedings, the court said its custody order is nevertheless binding on him.

Justice Lee said the husband cannot depend on a Syariah High Court order he obtained as an excuse not to comply with the civil High Court custody order.

He further declared that the Syariah High Court custody order as null and void, which Pathmanathan also cannot rely on as a shield for contempt proceedings against him.

“The Syariah High Court has no jurisdiction to grant custody as the other party is not a Muslim,” he said.

Justice Lee warned that any person who disobeys a civil court order will be found to be in contempt, deliberately and willfully.

He also ordered the police to act and not to fold their arms in the event Pathmanathan does not obey this High Court order.

In addition to this, Justice Lee also ordered Pathmanathan to pay RM5,000 as costs to the mother.

The granting of custody to the non-Muslim mother today is the second in less than two weeks, after the High Court in Seremban granted S Deepa custody of her two children. Deepa's convert husband failed to get a stay order from the Court of Appeal.

~ Malaysiakini

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