Custody cases should not involve religious consideration

Although a lot of non-Muslims are happy with the recent high court ruling asking the husband of a kindergarten teacher who has converted to Islam to surrender his 22-month–old child to his ex-wife Indira Gandhi (see pic), many still think that the judicial reviews of hiccups in conversion and custody cases won’t be settled for a long time.

As long as there are two separate system of courts as provided for in Article 121(1A) of our Constitution the problems of who gets child will forever remain a sticky issue.

Though the civil courts, which is a federalized court system is supposed to be superior to the Syariah courts, which is a matter of state law, with the exception of the Federal Territories, as provided for in Article 3 of the Constitution, the ruling party is reluctant to make a stand once and for all which court system has the final say.

The reason being the Malays who have all along supported the major partner in the ruling Barisan Nasional might view it has not doing enough to propagate the Islamic cause and favour Umno’s arch rival Pas instead.

The ruling party needs to tread carefully so as not to annoy the Muslims who have so far supported Umno and Barisan at general elections to remain in power.

The recent whipping and imprisonment of three Muslim women found guilty of sex outside marriage and the jailing of two journalists for attempting to have intercourse is viewed by analysts as Umno’s message to Muslims that it has not abandoned its Muslim or Malay cause.

That is all quite all right when it concerns Muslims but the problems can never get settled when there are Muslims and non-Muslims involved.

The problem when one spouse converts to Islam and the other reluctant partner who refuses to go along separates and turns to the court to decide the faith of their under-age children will continue to remain a sticky issue.

Over the years we had differing verdicts by the civil courts which had decided such cases.

And taking the case to the Syariah Court is not going to get anyone real justice as well as justice in the eyes of the Islamic courts must be compatible to syariah and hadith teachingsand practices and asking a syariah judge to decide such a case is putting him in a fix as he may think that he will be damned if he allows a non-Muslim custody .

That goes for all religions. No practicing Hindus or Christians would want his or her child to be brought up in a Muslim home or any other home where one of the parents have converted to another religion.

So the only practical way to get out of this custodial mess is for the court, either the syariah or the civil court to just stick to the points of law in custody cases just like in any normal divorce case without any religious considerations.

What is the idea of handing over the child to a person, either the wife or the husband just because he or she has converted to Islam but lacks the necessary values a parent ought to have?

The case must be looked at from the point of what is best for the CHILD, not either of the parents’ interest. So if the man wants to get custody, he has to prove somehow that the child would be better with him than with his mother.

Will the mother harm the child? Is the child safe with the mother? Is the mother doing something that is bad for the development of the child? Is the child able to provide not just financially, but emotionally also? These are the questions a court should deliberate on.

Yes, mothers do get custody the majority of the time. But, mothers are (in general) more capable of providing for the child's emotional needs than just the physical needs. If the father can prove that he would do a better job, then it is very likely that he would get custody over the mother.

These are the points any court, either the civil or the syariah should be looking at and not the religious aspect because everyone will claim that their religion is better and there is no way anybody can prove that.

Only by being impartial and sticking to the points which we can deliberate and debate on based on empirical grounds can we deliver justice which after all is what Islam represents.


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This is the Bernama report on the recent case

Conversion case: Hindu mother wins custody of children

IPOH (March 11, 2010) : The High Court today ordered a man who had converted to Islam to surrender custody of his children to his former wife.

Judge Wan Afrah Wan Ibrahim, who made the decision in her chambers, ordered that Prasana Diksa, 22 months, be handed over to Indira, a Hindu.

The custody battle had dragged on for more than a year after her former husband Mohd Ridzuan Abdullah (formerly K Patmanathan) sought to contest a court order that gave Indira Gandhi temporary custody of her three children.

Indira Gandhi's lawyer M. Kulasegaran said with the decision, Mohd Ridzuan or whoever having custody of Prasana Diksa must surrender the child to Indira Gandhi with immediate effect.

He said the court's decision was based on the case of R. Subashini in 2007 which held that the High Court had the right to set aside a decision of the Syariah Court.

Indira Gandhi said she hoped Prasana Diksa, whom she last met in January, would be handed over to her without delay.

With her two other children in tow, she kept bursting into tears and repeatedly thanked her lawyers for the outcome.

Meanwhile, Mohammad Faizal Che Yusof, Mohd Ridzwan's lawyer, said they would be filing an urgent appeal for a stay of execution of the judgment pending appeal to the Appeals Court as they were of the view that the High Court had no jurisdiction to decide on this case.

Mohd Ridzuan, who was clearly disappointed with the development, said he would stand by the decision of the Syariah Court on Oct 29 last year which gave him custody of all his three children.

"I had converted all three of them to Islam. She (Indira Gandhi) is not qualified for custody. I do not want my children to become beggars," he said when met outside the court.

Their other two children are Ummu Salamah (Tevi Darsiny), 13, and Abu Bakar (Karan Dinish), 12.

On April 24 last year, Judicial Commissioner Ridwan Ibrahim had allowed an ex parte application by Indra Gandhi for temporary custody of her three children and an injunction to prevent her former husband from entering their house.

However, on May 5, the court granted Mohd Ridzuan a stay of execution of the order, leaving the situation to return to status quo with the father having custody of the youngest child and Indira Ganhdi the elder two, until the court's decision today.

This case drew wide attention because of the conflicting powers of the Syariah and civil courts where it came to custody of children when one of the spouses converted to Islam.