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Saturday April 12, 2014 MYT 12:00:00 AM
Saturday April 12, 2014 MYT 11:04:39 AM
by shaila koshy
MUCH as the public is stumped over police inaction in the case of a Muslim convert who is said to have taken his son from his ex-wife’s house, the police might just be right in this case.
Unlike a kidnapping, which is an offence under the Penal Code, this is a father who has taken custody of his child.
The dispute between S. Deepa and Izwan Abdullah, who was N. Viran before his conversion to Islam, is a civil one.
There are two competing civil court orders in play here – one issued by the Syariah High Court on Aug 26 and one by the civil High Court in Seremban on Monday.
Under Article 121 (1A) of the Federal Constitution, both the civil and Syariah courts have equal but separate powers.
Section 20(3)(f) of the Police Act states that a police officer is duty-bound to take lawful measures to execute summonses, subpoenas, warrants, commitments and other process lawfully issued by any “competent authority”.
In this case, both courts are competent authorities, leaving the cops in a fix.
The only things they can act upon and have said that they are investigating are in regard to Deepa’s police reports against Izwan for:
(i) BREACHING the interim protection order awarded by a magistrate’s court under the Domestic Violence Act when he went to her house on Wednesday and allegedly abducted their six-year-old son; and
(ii) ALLEGEDLY assaulting her at a salon last year, which is an offence under the Penal Code.
As for Deepa, her remedy is unfortunately going to involve more face time with the legal system as she will have to file an application to institute contempt proceedings against Izwan for breaching the custody order.
But she will first have to serve it on him because he has to be made aware of it as a finding of contempt will mean punishment for Izwan.
If he cannot be found, the law allows Deepa to substitute service on his lawyer; and if he still cannot be found after he is convicted of contempt, the court will issue a warrant of arrest for Izwan.
But it cannot be fair that while Izwan can go to the High Court to challenge the custody order in favour of Deepa, she is unable to challenge the custody order he was given by the Syariah court because she has no standing as a non-Muslim.
The Government must find a solution or their meaningless fluttering about will only result in an increasing number of torn families as one parent and the children go into hiding here or overseas and add to religious tension.
All Malaysian leaders, regardless of their political leanings, must be prepared to make decisions that will propagate social cohesion.
Surely the time has come for the 133 Barisan Nasional MPs and 89 Pakatan Rakyat MPs to demand a law requiring a spouse to first settle his or her responsibilities in a civil marriage before embracing Islam?
The matter of a child’s religion is not just a problem where one parent is a Muslim.
Fierce arguments even occur in many civil mixed marriages between spouses of different faiths.
Faith is a personal thing and no one should be coerced into a religion, especially children.
They should receive instruction in both their parents’ faiths and be free to choose later.
This is the best solution because unlike embracing Buddhism, Christianity, Hinduism or Sikhism, when one becomes a Muslim in Malaysia, the parallel Syariah legal system makes it nigh impossible for a convert to change his or her faith.
There have been other conversion cases where cross-jurisdictional issues worsened the situation like the ones involving R. Subashini, S. Syamala and M. Indira Gandhi.
A Muslim lawyer who practises in both the civil and Syariah courts probably said it best: “Encouraging conversion is good but if it encourages injustice, it is a disservice to the faith.”
Tags / Keywords:
Family Community, Courts Crime, conversion, syariah court, seremban, custody, children
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