Mahadev Shankar JCA:

This is an appeal from the decision of the judge in the High Court at Ipoh on 3 May 1997 whereby he granted custody of two infant children to the respondent, their mother (K) with access to the appellant, their father (B).

From any point of view, factual, legal, or human, this is a difficult case with very serious implications, not only for the parties but also those who will be affected by the judicial precedent this decision will set. The problem will therefore have to be approached with some caution.

B was born in Jaffna, Sri Lanka in June 1959. At some point in time thereafter his family left that country. His parents eventually ended in Suhr, Switzerland. B and his sisters ended up in Toronto in Canada where B was conferred Canadian citizenship.

K was born in August 1962 in India. Her birth was registered with the Malaysian High Commission. She subsequently came to Malaysia where she initially resided with her parents.

On 7 July 1989 K entered Canada on a Malaysian passport. On 11 August 1989 B and K took out a Marriage Licence pursuant to which they were married in a civil ceremony in Canada on 18 October 1989. K was then 27 years old and B was 30.

In May 1991 just over one and a half year later, B and K came to Malaysia where they went through a traditional Hindu wedding in Ipoh. After this they returned to Canada.

On 7 August 1991 K applied for and was granted permanent residence in Canada. Her application was sponsored by B.

Their son Kabhilan ('S') their first child was born in Canada on 5 February 1992. K's first Malaysian passport (No. A2637947) was due to expire on 6 December 1993. She applied to the Malaysian High Commission in Ottawa for a new passport and was granted one (No. A6737315) on 6 December 1993. The passport contained an endorsement that K had been granted permanent residence in Canada on 7 August 1991, that the new passport was valid only till 3 November 1998 and was not to be renewed without prior reference to the office of issue. On 5 November 1993 S was issued with a Canadian passport. In it he is stated to be a Canadian national. Armed with these documents K, B and S came to Ipoh for a holiday on 17 November 1993 and returned to Canada the following month.

On 29 August 1994 K delivered Biruntha their daughter (D) also in Canada. She is also a Canadian citizen. B was issued with a Canadian passport No. 237513 on 17 December 1996. He had D's name endorsed on his passport.

On 21 December 1996 B purchased air tickets for all of them on Singapore Airlines. They were routed from Toronto via London to Kuala Lumpur on 24 December 1996. The return date was fixed on 9 February 1997 from Singapore via Zurich to Toronto.

The family duly arrived in Malaysia on 25 December 1996. The passports of B and S were both endorsed by Malaysia's Immigation with a social visit pass - "Permitted to enter and remain in West Malaysia and Sabah for two months from the date shown". These passes would therefore have expired on 24 February 1997. The ostensible purpose of the visit was to come here for a holiday.

The family came to Ipoh and took up residence with K's father and mother. K's father Shamugam a/l N.S.S. Maniam (KF) is a pensioner. He lives at 104, Taman Pertama 4, Taman Pertama, Ipoh. Here they stayed together until 29 January 1997. That day B left KF's house with his son and went to stay in the house of K's aunt.

The reasons will come later. The family was due to return to Canada on 9 February 1997.

On 4 February 1997 Messrs. Bachan & Kartar filed an Originating Summons (the OS) No. 24-64-97 in the Ipoh High Court. The prayers were for the following orders:

(a) K be given custody of the two children S and D;

(b) an injunction to restrain B from seeing, meeting, beating, assaulting, interfering, or communicating with K or her parents in any way;

(c) costs;

(d) such further order as may be just.

Together with the OS, Bachan & Kartar filed an ex parte summons in chambers