Seremban High Court rules child custody dispute belongs in shariah court

PETALING JAYA: A Muslim biological parent’s attempt to invoke federal law to recover their child from the care of two other Muslims has been struck out by the Seremban High Court, which ruled that the matter falls exclusively within the jurisdiction of the shariah court.

Justice Roz Mawar Rozain said the child was born from a valid marriage governed by Islamic law.

“It is undisputed that all parties involved are Muslims. While the plaintiffs seek a recovery order under Section 53 of the Child Act 2001, this court must look at the true substance of the application.

“It is fundamentally an intra-Muslim dispute concerning child custody (hadanah).

“By virtue of Article 121(1A) of the Federal Constitution, this court has no jurisdiction to adjudicate matters involving the personal law and custodial rights of Muslims,” she said in her grounds of judgment released yesterday.

Roz Mawar said the reliance on the Child Act amounted to an attempt to bypass the proper religious forum and the procedures prescribed under the Negeri Sembilan Islamic Family Law Enactment.

In arriving at her decision, the judge referred extensively to the Federal Court rulings in N Viran v S Deepa and Indira Gandhi v the Inspector-General of Police.

She said those cases involved exceptional circumstances in which the civil courts retained jurisdiction because they arose from civil marriages under the Law Reform (Marriage and Divorce) Act 1976 or involved non-Muslim parties.

Roz Mawar, however, said the principles established in Deepa and Indira Gandhi did not assist the plaintiffs, as the present dispute did not involve a civil marriage, a non-Muslim parent and unilateral conversion.

Consequently, the court declined to consider the merits of the plaintiffs’ claim or issues relating to the child’s pending adoption, and said that the parties were at liberty to pursue their remedies before the shariah high court.

Roz Mawar also ordered the plaintiffs to pay the defendants RM1,000 in costs.

Lawyer Jason Choo appeared for the biological parents, while Shafrin Halim represented the two defendants.