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Friday, December 2, 2011

Court sets aside 'actual custody' granted to Shamala

The appellate court in Putrajaya today set aside a High Court decision granting a former bank clerk S Shamala “actual custody” of her two children who were converted to Islam by her Muslim-convert husband.

Zainun Ali, leading a three-man panel, said the court was constrained to allow Dr Muhammad Ridzwan’s appeal to set aside the High Court decision delivered seven years ago because it was bound by the Federal Court decision which ruled that Shamala must purge her contempt before she has the right to be heard by the court.

However, Muralee Menon, lawyer for Dr Muhammad Ridzwan, told reporters outside the court that Dr Muhammad Ridzwan cannot enforce the Syariah Court order obtained by him for the custody of Saktiswaran, 10, and Theiviswaran, nine, because Shamala fled the country with them via Padang Besar in 2004. They are believed to be in Australia.

Muralee also said that following today’s decision, the legal tussle between the couple has come to an end unless Shamala returns to Malaysia and reopens the matter.

On May 6, 2004, Dr Muhammad Ridzwan, 43, was given the nod by the High Court to initiate contempt proceedings against Shamala after she fled the country with their children.

Dr Muhammad Ridzwan, formerly known as Dr Jeyaganesh C Mogarajah, sought to initiate committal proceedings against Shamala for breaching a court order issued on April 17, 2004, which directed her (Shamala) to allow him access to the children.

On Nov 12 last year the Federal Court declined to answer key constitutional questions in the couple’s dispute on grounds that she avoided contempt proceedings taken against her by her husband.

On July 20, 2004, the High Court granted Shamala “actual custody” of the children but ordered her to share “legal custody” with her husband. Dr Muhammad Ridzwan was also granted right to visit the children.

Actual custody means that her children would be in her day-to-day care and control and legal custody meant that she and Dr Muhammad Ridzwan have to discuss and agree on issues concerning the children’s education, health and medical care.

The High Court also placed a caveat on the 39-year old mother prohibiting her from teaching her children the practice of the Hindu faith and making them eat pork.

The panel, which also comprised Justices Alizatul Khair Osman Khairuddin and Anantham Kasinater, heard Dr Ridzwan’s four appeals today.

Shamala had discharged her lawyers

Shamala was unrepresented because she had, on Nov 1 this year, discharged her lawyers from representing her.

The panel today dismissed Dr Muhammad Ridzwan’s appeal with regard to a preliminary objection raised by his lawyer at the High Court concerning the jurisdiction of the civil court to hear Shamala’s application for custody.

The other two appeals were withdrawn. The appeals were concerning Dr Muhammad Ridzwan being cited for contempt for breaching an interim custody order which was granted to Shamala by the High Court and a High Court decision allowing Shamala’s application to declare that the warrant of arrest issued against her by the Syariah Court for not attending a court proceeding, with regard to custody filed by Dr Muhammad Ridzwan, was not binding on her since she was a non-Muslim.

Shamala and Dr Muhammad Ridzwan were married under civil law in 1998. In November 2002, Muhammad Ridzwan became a Muslim and converted their sons, who were then aged three and two, without Shamala's knowledge or consent.

Shamala went to the High Court while Dr Muhammad Ridzwan turned to the Syariah Court to seek legal remedy.

- Bernama

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