The decision by the Court of Appeal yesterday that police officers have the discretion to enforce court orders in interfaith custody battle sets a bad precedent, MIC Youth chief C Sivarraajh said today.

He said the decision is sending the wrong signals to civil servants as it allows them the leeway to use their discretion instead of just enforcing the court orders.

“The line of reasoning is shocking as police are expected to enforce the court ruling without questioning the orders. They should not have discretion in the matter at all,” said Sivarraajh in a statement.

“It is impossible to locate the child without police assistance. The mother who is called upon to do police work does not have the means and bureaucracy which the police possess,” he added.

Sivarraajh ( right ) was commenting on yesterday’s decision that befell Perak kindergarten teacher M Indira Gandhi, who lost in getting an order of mandamus (to compel) inspector-general of police Khalid Abu Bakar to arrest her former husband.

Meanwhile, K Shanmuga, a lawyer who is pursuing his masters, described yesterday’s appellate court decision as curious.

Shanmuga, in a posting on Loyarburok.com , described yesterday’s decision as an odd day at the Palace of Justice, as they allowed mothers whose marriage are registered under the Law Reform (Marriage and Divorce) Act 1976 to have custody of their children, even if the other half converted to Islam. The court also unanimously allowed a recovery order of the child given to the non-converting spouse.

“Thus, the Court of Appeal effectively overruled contentions that the father also had valid custody of the child by virtue of a Syariah Court order purporting to grant him custody,” he said.

However, the mothers failed to get the mandamus order against the police despite the two decisions.

Mothers must now asks bailiffs to enforce order?

“In short, the husband must do all the above things but it’s not the police’s job to ensure compliance with the order. There seems to have been a suggestion that the mothers must instead ask the court bailiffs to enforce the orders.

“This last decision is very curious as the civil High Court had found the husband to be in contempt of court, and had issued a warrant of arrest directing that the husband be arrested and brought before the court.

“This is a common form of order in all civil contempt proceedings. The warrant and order of committal commits the person who has committed contempt (the contemnor) to civil prison until he purges the contempt that is complies with the order.”

He said if a bailiff is now empowered to execute a warrant of arrest in this way, this would be a very significant change to how the court process works in the country.

Besides the decision on Indira Gandhi, another mother who is facing a similar problem but does not have a High Court order was S Deepa, where the Court of Appeal ruled she has custody of her two children and also a recovery order.