MCA: Apex court’s stance on recovery order in custody case perplexing

PETALING JAYA: The MCA Legal Affairs Bureau, while welcoming a Federal Court decision that the Syariah Court had no jurisdiction to declare an annulment of a civil marriage and give a custody order, said it was however perplexed with court’s stance on the recovery order.

On Feb 10, the Federal Court ruled that as long as one parent was non-Muslim, the Syariah Court had no jurisdiction to hear any matter pertaining to the marriage solemnised under civil law at the very beginning (ab-initio).

“This includes awarding child custody and such. Thus, any decision made in consequence to that inclusive of custody order by the Syariah Court shall be null and void; therefore, the question to set aside the custody order should not arise at all.

“Simultaneously, any recovery order by the civil courts must be enforceable by the police,” said bureau chairman Datuk Tay Puay Chuan.

“But in the interpretation of Sections 52 and 53 of the Child Act, whether a recovery order can be made when there exists a custody order given by the Syariah Court which is enforceable the same time, the learned judges replied in the negative,” Tay said in a statement yesterday.

Tay also said that the Federal Court did not address the issue of whether the civil court may set aside the unilateral conversion of minors and child abduction, which Izwan Abdullah had done so after the High Court awarded custody of both children to S. Deepa.

“With the Federal Court’s decision that no recovery order may be issued by the civil court, we are wary that the floodgates of child abduction and unilateral conversion will continue to be unchallengeable as occurred in the cases of Indira Gandhi and S. Deepa,” he added.