Raja Azlan Shah Acting LP:

This is an application for custody by the father of two infant daughters aged 7 years and 8 years respectively. The father is a Malaysian citizen and the mother an Indian citizen. They were both married in Bombay, India in 1972; the infants were born there. The father left India in 1974 but the mother and the infants remained and lived in India. They came over to Malaysia in 1978. In January 1980, the marriage broke down. The parties entered into a deed of separation by which custody of the infants was given to the father. The mother returned to India.

In March 1980, the mother filed a divorce petition for dissolution of the marriage in the City Civil Court of Bombay and on the same day filed notice of motion for the custody of the infants. The father was represented at the hearing. The Bombay Court made an interim order granting custody to the mother pending the trial of the divorce petition. The father gave an undertaking to produce the infants on the date fixed for hearing. On that date, 8 December 1980, the father failed to appear and produce the infants. On 16 December 1980, the Bombay Court granted an order of dissolution of the marriage and awarded custody of the infants to the mother.

On 15 December 1980, the father unsuccessfully instituted custody proceedings in the Kuala Lumpur High Court. The learned Judge was of the view that the father was estopped from making the present application stating that the decision of the Bombay Court was conclusive as against the father and it was not open to him to ask for another order in this Court on the same matter in which he had agreed to accept the decision of the Bombay Court. Another reason for disallowing the application was that on the merits the father had not shown any change of circumstances to re-open the custody order granted by the Bombay Court.

As we see it the appeal is one against the exercise of a discretion by the learned Judge and accordingly the father must show that the learned Judge erred in exercise of the discretion in accordance with the principles enunciated by this Court in Teh Eng Kim v.Yew Peng Siong [1977]

In a case of this nature the Courts in this country have jurisdiction to hear a custody case. The High Court in hearing a custody case regarding infants within jurisdiction is invested with an inherent jurisdiction which is derived from the Crown's prerogative powers as parens patriae. The problem which this Court has to face in circumstances of this kind is not new and the question to be asked is from what angle ought we to approach the case, and how far is there any restriction imposed upon the course which we should take by reason of the order of foreign Court of competent jurisdiction granting custody to the mother? There are many well known cases on the subject and we think we need only refer to the Privy Council decision of McKee v. McKee [1951] AC 352 which was cited to the learned trial Judge where the Judicial Committee re-affirmed that the infant's welfare is of paramount consideration and that the Court in whose jurisdiction the child happens to be should give effect to the foreign judgment without further enquiry only when it is in the best interest of that infant that the Court should not look beyond the circumstances in which the foreign jurisdiction was invoked. It is the law of this country as it is the law of India that the welfare and happiness of the infant must be the paramount consideration in child custody adjudication. Consequently, although our Courts must take into consideration the order of a foreign Court of competent jurisdiction, we are not bound to give effect to it if this would not be for the infant's benefit. We cannot regard that order as rendering it in any way improper or contrary to the comity of nations if the Courts in this country consider what is in his best interest. Such an order cannot from its nature be final or irreversible. It is only of persuasive authority.

We are