The distressing story of Deepa and Izwan

Will the Federal Court pass the sword back to the Syariah Court to chop up the children's hearts?

COMMENT

It is never easy when a relationship falls apart. But when a family with kids implodes because the parents don’t get along, it is always the children who pay the heaviest price. Call them collateral damage, call them pawns or what you will. In the end, it is always the innocent pups who suffer the consequences of the grown-up war.

The story of Deepa Subramaniam and Izwan Abdullah @ Viran Nagapan is tragic. Their struggle for custody of their children is classic and representative of the deep chasm of bitterness between them. The tug of war for custodianship has drawn in NGOs, political parties, ministers, the Inspector-General of Police and even the Attorney-General.

While most family feuds passing through the court system never get picked-up by the media, this one had all the makings of a high profile case from day one simply because of religion.

Deepa and Viran were nineteen and twenty when they tied the knot in 2003. It was a civil marriage presumably with a Hindu ceremony. They were after all both Hindus. Their first born, Sharmila, arrived in their third year of marriage. Then Mithran followed in the sixth.

It is unclear when their relationship started to slide or why. But violence points to a possible cause. According to Deepa, Izwan disappeared for sixteen months, leaving the family to fend for itself. Clearly not a sign of good parenting skills. So the violence must have preceded his 16-month absence. Twenty police reports were made against him for domestic violence and an Interim Protection Order (IPO) issued by the Seremban magistrate’s court still bars him from approaching Deepa’s residence.

Anecdotal accounts by Deepa’s mother decribes Izwan as being a womaniser and unable to hold on to a steady job. So how is he paying for his legal representation all the way to the Federal Court? His defence team at the Court of Appeal phase comprised six lawyers. What is their interest in this when the aggrieved party is so clearly the mother who had her son snatched from her forcefully in front of her home? He was clearly in breach of the valid IPO.

Some time in 2011/2012 Viran found his new faith and became Izwan. In the same period he unilaterally converted his children to his new faith without the knowledge or consent of their mother. According to the Federal Constitution “any one parent” has the right to determine the religion of a child under 18. Thus a conversion can be done legally without the consent of the other (even if the justice or ethics of it may be questionable). After the conversion there are few options left for the objecting parent as the Syariah Court already recognises the converts as Muslims and the objecting parent has no standing in the court. The trap is sprung. Deepa gets the divorce and custody of the children from the Seremban High Court. Two days later Izwan snatches away the boy and Deepa lives in constant fear of losing the girl also.

Precedence

Izwan’s legal team merely needs to follow in the footsteps of a preceding case – Subashini Rajasingam vs Saravanan Thangathoray (2007) – to see the mother frustrated even by the civil court system.

Deepa’s reluctance to participate in any syariah process is understandable. It is widely held that custody would have gone to the Muslim spouse without exception. Thus any mitigating fact that would have helped her – assuming a level playing field – was never presented. So the pronouncement by the syariah judge handing custody to Izwan was given minus the knowledge that he had a strong tendency to violence. This places his competence as a fit parent in grave doubt. However, the court’s only threshold for custody was that he be Muslim and the biological father.

Then there is the “do nothing, but make it worse” involvement of law enforcement agencies, which, being unwilling to act on the orders of the civil courts to retrieve the son, stall the process further by appealing against the Seremban High Court order to recover Mithran from his father. Why is the Attorney-General’s office entering the fray to make it a three cornered fight? Does it want to be a parent as well? It would appear it is siding with the father against the mother or with the Syariah Court against the Civil Court, all the while ignoring the plight of the children and the mother.

It is probable that the Attorney-General wants to prevent a precedent being set by the highest court in the land allowing the civil court system to sidestep a syariah ruling in a custody battle. But it is not yet a foregone conclusion, even with two courts already against Izwan.

If Izwan converted to gain protection from the syariah system in the custody battle, then he may be terribly disappointed if the Federal Court suddenly makes a landmark ruling to affirm the decisions of the two subordinate civil courts. He would have converted for nothing if he had no sincere faith. But how could a simple driver have executed such a well rehearsed plan and then tell the media that he was only preferring the syariah court over the civil court as he was Muslim and the syariah court had already given him both children, who were also Muslims. One cannot say for certain that his hands are dirty, but he has certainly come before the courts seeking justice with less than clean hands.

So much now hangs on the Federal Court panel that will hear Izwan’s appeal to overturn the civil High Court ruling giving the children to Deepa and ordering the police to carry out the recovery.

Is it reasonable for Deepa, a Hindu, to submit to the syariah court when the constitution clearly does not require her to? Will the Federal Court fail another Hindu mother by passing the sword back to the syariah court to take away her children and slice away at their hearts while the husband, who has cowardly converted their children in secrecy, hides behind his new religious identity for security?

The Federal Court is unquestionably the apex court in the land and its decision could close the gap in the law, which is allowing conniving husbands to use the syariah courts as an unwitting accomplice to hijack the children in acrimonious break-ups. Deepa’s is not an isolated incident. It has happened before and will continue to happen, unless the Federal Court finds the moral fortitude, leadership and wisdom to seal this lacuna once and for all.