JUDGMENT

Abdul Hamid J:

This is an application by originating summons for the custody of two infant children, a girl by the name of Nor Izan eight years and a boy, Mohamed Faizal about three years old.

Both the applicant and the respondent rely mainly on their respective affidavits. The statements contained in these affidavits were carefully summarised by Raja Azlan Shah J who originally heard this application. With respect to the learned Judge, I would reproduce hereunder the relevant part of the summary and adopt it as my own.

The applicant is a Swiss lady by the name of Theresia Maria Ruthemann. She met the respondent in London. They were later married at the London Central Mosque, Regent Lodge Park, London, whereupon the applicant took her present name, Myriam binti Abdullah. The said marriage was registered under the English Marriage Act, 1949. On their returning to Malaysia, the said marriage was subsequently registered at the Registry of Marriages, Kuala Lumpur on the 28 November 1960. There are two children of the said marriage, a girl Nor Izan and a boy Mohamed Faizal.

On the 18 September 1963, the parties went to the Kathi's Court at Petaling Jaya to effect a divorce. With the consent of the parties, a divorce with condition (Talak Taliq) was granted. The said condition was that the respondent was to have the custody of the children but the applicant could have access to them.

On the 25 November 1968, the applicant married Wan Mohamed Don of Kuantan with whom she now lives. The respondent, later in January, 1969, married his cousin Wan Fatimah Maheran binti Dato Wan Ibrahim.

In her affidavit, the applicant alleged that when they went to the Kathi's Court for the purpose of setting a divorce, the respondent had refused to allow her to bring a lawyer and an interpreter, and that the respondent had threatened not to grant her a divorce if she were to bring the lawyer and the interpreter. The respondent instead brought two of his own people, the Penghulu of Kuala Lumpur, (a relative of the respondent) who acted as interpreter, and the other, a woman servant, Mariam, who was the witness. The applicant alleged that the Penghulu was poor at translating what had been said by the parties during the divorce proceedings, so that she was induced into signing the declaration without properly realising the consequences, and it was only later that she learnt that the Kathi had given custody of both the children to the respondent. The applicant also alleged that since the divorce, the children had been taken away from her and that she had, from her observations, a strong feeling that they were not well taken care of by the respondent In respect of the boy, Mohamed Faizal, she contended that he had not been under the continuous custody of the respondent Between December, 1968 and January 1969 she found him in Wan Harun's and Wan Khairul's (cousin of the respondent) custody at Kampong Pandan; on 5 April 1969, she saw him at Zaitun binti Dato Othman's house at Damansara under Wan Khairul's care; on the 22 and 29 April, the child was found to be at Dato Othman's house, (the respondent's father); and that there were five occasions when she tried to see the child but none of the relatives could tell where he was. Furthermore, she alleged the child, on one occasion, was found in a cot with a broken milk bottle, and on another occasion, she found the child's clothings were dirty and he smelt of urine; and on 15 March 1969, she saw that the child had a burn on the top of his right hand and she found out later that the child had not been taken to the hospital until ten days later.

In respect of the girl, Nor Izan, the applicant alleged that between December, 1968 and March 1969 she noticed her hair had lice and she had to put kerosene to clean the hair. She alleged that when the respondent and his present wife were having their "bersanding" ceremony in Alor Star, the child. was sent to Klang, and that when the respondent was away from M