Although the Federal Court has deferred in delivering judgment today in the highly charged custody battle between S Deepa and former husband N Viran @ Izwan Abdullah, it, however, ordered that the couple's two children be present when the verdict is given.

The order was made by Court of Appeal president Justice Md Raus Sharif, who chaired the five-member bench after hearing the conclusion of submissions for the case.

“Are both the appellant (Izwan) and respondent (Deepa) in court today?

“We are deferring in delivering a decision and will write our judgment on this.

“However, the registrar will send notice as the court wants the children to be present when we deliver a decision,” he said.

The couple has two children, a 10-year-old daughter and a seven-year-old son.

The daughter lives with Deepa. The son is with Izwan, despite the High Court in Seremban granting custody of both children to the mother.

Two days after the civil court decision, the father took the child away from the mother.

Deepa is not contesting the children's conversion to Islam by the father in this protracted custody battle.

Izwan and Deepa were married under Hindu rites in 2003. Izwan converted to Islam in 2011 after divorcing his wife earlier, and also unilaterally converted their two children to Islam.

Two legal questions posed

Besides Justice Md Raus, the other members on the bench were Chief Judge of Malaya Justice Zulkefli Ahmad Makinudin, and Federal Court judges Abdull Hamid Embong, Suriyadi Halim Omar, and Azahar Mohamed.

While the civil High Court granted custody of the children to Deepa in May 2012, the Seremban Syariah High Court had earlier granted custody to Izwan in April 2012, resulting in the conflicting of jurisdiction battle.

This follows the children's conversion by Izwan, after the couple are divorced.

Izwan failed in his appeal in the Court of Appeal late last year, which affirmed the Seremban High Court's decision granting custody to the mother.

Despite this, Izwan obtained a stay order from the apex court on Jan 14 on the Court of Appeal order which granted custody to the mother, Deepa ( photo ).

Izwan also brought the seven-year-old child that same day after earlier being told that the apex court would not hear his stay application if he did not bring the boy .

His lawyers also managed to obtain leave (permission) from the Federal Court and posed two questions for the appeal.

These questions are:

  • Whether, in the context of Article 121 (1) (a) of the Federal Constitution, where a custody order is made by the Syariah Court or the civil High Court on the basis that it has jurisdiction to do so, there is jurisdiction by the other court to make a conflicting order; and

 

  • Whether in the interpretation of Sections 52 and 53 of the Child Act 2001, a recovery order can be made when there exists a custody order given by the Syariah Court that is enforceable at the same time.
    • These questions will be decided by the Federal Court when it delivers its decision.