Civil Courts maintain jurisdiction over custody matters in non-Muslim marriages, despite parental conversion to Islam.

Introduction

[1] There are three interrelated appeals before us, arising from the judgment of the Court of Appeal dated 17 December 2014 which dismissed the appellant's appeals. Leave to appeal was granted by this Court on 14 January 2015 on the following questions of law:

"(i) Whether in the context of art 121(1A) of the Federal Constitution, where a Custody Order is made by the Syariah Court or the Civil Court on the basis that it has jurisdiction to do so, whether there is jurisdiction for the other Court to make a conflicting order; and

(ii) Whether on the interpretation of ss 52 and 53 of the Child Act 2001 , a Recovery Order can be made when there exist a custody order given by the Syariah Court which is enforceable at the same time."

Background Facts

[2] The abovementioned questions of law flow from the following background. On 19 March 2003, the appellant ('ex-husband') and the respondent ('ex-wife') contracted a civil marriage under the Law Reform (Marriage and Divorce) Act 1976 ('LRA'). Out of the said marriage, they have two children, a girl named Shamila a/p Viran ('Shamila') and a boy named Mithran a/l Viran ('Mithran').

[3] On 26 November 2012, the ex-husband converted to Islam at Pusat Dakwah Islamiah, Paroi, Negeri Sembilan and changed his name to Izwan bin Abdullah. Thereafter, on 4 January 2013, the ex-husband registered the conversion to Islam of his two children, Shamila and Mithran at Pusat Dakwah Islamiah, Paroi, Negeri Sembilan and had their names changed to Nur Nabila binti Izwan and Muhammad Nabil bin Izwan, respectively.

[4] The ex-husband, upon his conversion to Islam, applied for the dissolution of his civil marriage with the ex-wife at the Seremban Syariah High Court. An order for the dissolution of the civil marriage was granted by the Syariah High Court on 15 May 2013 based on s 46(2) of the Islamic Family Law (Negeri Sembilan) Enactment 2003 (Enactment 2003).

[5] On 26 August 2013, the ex-husband was granted temporary custody order of his two children by the Syariah High Court. Subsequently, on 19 September 2013, the Syariah High Court granted permanent custody order of the two children to the ex-husband but allowed the ex-wife to have visitation rights and access to the two children.

[6] In the meantime, the ex-wife on 12 December 2013, filed a petition for divorce at the Seremban Civil High Court and for the custody of the two children. On 7 April 2014, the Civil High Court dissolved the civil marriage between the ex-husband and ex-wife and granted permanent custody of the two children to the ex-wife. The exhusband was granted weekly access to the children.

[7] On 11 April 2014, the ex-husband filed a notice of appeal against the decision of the High Court Judge in granting the custody of the two children to the ex-wife.

[8] Earlier, on 9 April 2014 another event unfolded. Mithran was taken away from the ex-wife's house by the ex-husband. The ex-wife then applied for recovery order before the Civil High Court pursuant to s 53 of the Child Act 2001 (Child Act). The High Court Judge granted the ex-wife's application and made the following orders against the Inspector General of Police (IGP) and/ or his officers:

(a) to enter the ex-husband's residence or Taska ABIM Nur Ehsan or any premise in order to recover the child Mithran;

(b) to take custody of Mithran and to return the child to the custody and control of the ex-wife immediately;

(c) to remove Mithran from the custody of the ex-husband or from anyone having custody and control of Mithran; and

(d) to execute the High Court judgment irrespective of the Syariah Court order which had granted custody to the ex-hu