Deepa a/p Subramaniam (Appellant; Husband) v. Viran a/l Nagapan (Respondent; Wife)

The Appellant and the Respondent were married in 2003 under the Law Reform (Marriage and Divorce) Act 1976, and they have two children. In 2012, the Appellant converted to Islam, as well as his children. Pursuant to his conversion, the Appellant applied for the dissolution of the marriage of the Serembian Syariah High Court (the Syariah Court), which is the Islamic Religious Court. In September 2013, the Syariah Court granted custody order to the Appellant with visitation rights and access to the Respondent. In December 2013, the Respondent filed a petition for divorce and sought the custody of the children at the Serembian High Court, which were both granted to the Respondent, upon which both children were surrendered to the Respondent at the court premises. Two days later, the Appellant took away the youngest child from the Respondent. Consequently, the Respondent filed an application in the High Court for a recovery order for the recovery of the child, which was granted. The Appellant filed two separate appeals, one of the custody order and the other of the recovery order, in the Court of Appeal and argued that the Syariah Court, as opposed to the High Court, had jurisdiction to grant the custody order as well as the recovery order. The Court of Appeal dismissed the appeal regarding the custody order because by contracting the civil marriage, the husband and wife were bound by the Law Reform Act in respect to divorce and custody of the children, and thus, the civil court continued to have jurisdiction over the husband, notwithstanding his conversion to Islam. As provided in the Federal Constitution, the Syariah Court and the Civil High Court are courts of “coordinate” jurisdiction, and one court is in no position to overrule or set aside the decision of another court. However, the Court held that, the issue was not whether or not the High Court could disregard or set aside the Syariah Court order, but rather which court has jurisdiction over parties who had contracted civil marriage and had children out of a civil marriage. The Court held that only civil courts, including the High Court, had jurisdiction over such civil marriage, and children resulting from a civil marriage. Therefore, as per the High Court’s decision, only the Respondent has lawful custody of the child, and that the recovery order of the High Court is not flawed.