High Court can review Shariah Court decision that affects non-Muslims, says Bar Council

M. Indira Gandhi with her two children, Tevi Darsiny (right) and Karan Dinish. She is now fighting her former husband for the return of their youngest child, Prasana Diksa. – The Malaysian Insider file pic, February 15, 2014.The Malaysian High Court is superior to the Shariah Court and has jurisdiction to review decisions of the religious court which affects non-Muslims, says the Bar Council.

Lawyer Edmund Bon said, as such, the civil court could ignore a Shariah Court order that was made against non-Muslims.

Bon was submitting to the Ipoh High Court yesterday in a contempt proceeding brought by kindergarten teacher M. Indira Gandhi against her estranged husband who had converted to Islam.

"This court must declare and restore the position of the civil court as having original jurisdiction," said Bon, who appeared for the Bar Council.

Indira had in 2010 succeeded in getting custody of her three children – Tevi Darsiny, 16, Karan Dinish, 15, and Prasana Diksa, 3 – from a High Court.

However, her husband, Muhammad Ridzuan Abdullah, refused to return their youngest child, Prasana Diksa (Ummu Habibah), to the mother.

Ridzuan, who was known as K. Patmanathan, had been holding on to Prisana Diksa since April 2009 when she was 11 months old.

The Shariah Court in Ipoh had in 2009 given Ridzuan custody of the three children after he unilaterally converted the children.

His lawyers are now taking the position that the civil court could not interfere and alter the order made by the Shariah Court which enjoys an equal status under the Federal Constitution.

However, the Bar Council has taken the stand that the civil court took precedence over the Shariah Court even after an amendment to the Constitution in 1988.

Lawyer Honey Tan Lay Ean who appeared together with Bon and New Sin Yew, also submitted that Indira was denied her rights under the United Nations Convention on the Elimination of All Forms of Discrimination Against Women (Cedaw).

She said the children’s rights under the Convention of the Rights of Child had also been violated.

"Malaysia had ratified both international agreements and this court must give effect to the conventions," Tan said.

Aston Philip Paiva, who represented Indira together with M. Kula Segaran and K. Shanmuga, said the Shariah Court order was null and void as it had no power and authority over Indira and the children.

"She had obtained a custody order from the High Court which has not been set aside. As such it must be obeyed," he added.

Judicial commissioner Lee Swee Seng adjourned hearing to April 9 for lawyers for Ridzuan and the Malaysian Muslim Lawyers Association to make submissions.

Lawyer Asmuni Awi and Mohd Fitri Asmuni appeared for Ridzuan while Mohd Hanif Khatri Abdulla represented the association.

Last month, Lee invited all the parties to assist the court in making a ruling since two courts had issued separate custody orders.

Indira had made an application for a judicial review to quash the conversion certificates after Ridzuan converted the children without her consent.

In 2010, High Court judge Datuk Wan Afrah Wan Ibrahim ordered custody of the three children to be given to Indira.

Last July 25, Lee, in a landmark decision, quashed the certificates of conversion of the three children and ruled that the certificates were null and void because they were unconstitutional.

Under the Perak state enactment, it was a statutory requirement for a child to be present before a certificate of conversion could be issued.

He also cited provisions under the Perak shariah law, where the children must be present to utter the affirmation of faith (Dua Kalimah Syahadah).

Indira married Muhammad Riduan, then known as K. Patmanathan, 20 years ago, according to Hindu rites.