Nur Adlin Balqish Binti Rosmizam @ Mohd Nizam v Azila Binti Mustaffa (NA-24F-104-08/2025)

NUR ADLIN BALQISH BINTI ROSMIZAM @ MOHD NIZAM [NRIC No. 040409-06-0380]

MOHAMAH FAIZWAN BIN ABDUL RAHMAN [NRIC No. 000120-02-0939] ...PLAINTIFFS

AZILA BINTI MUSTAFFA [NRIC No. 860615-05-5092]

MOHD KHAIRUL ANUAR BIN HASIM [NRIC No. 850528-08-5737] ... DEFENDANTS GROUNDS OF JUDGMENT [1] The Plaintiffs, the biological parents of Chinta Khalisya, are seeking this Court to mete out a recovery order under section 53 of the Child Act 2001 (CA), to return her to them from the arms and home of the Defendants. The defining factor here is that all parties involved are Muslims. [2] Under Article 121(1A) of the Federal Constitution of Malaysia (FC), the Civil High Court is completely deprived of jurisdiction over any matter that falls within the exclusive purview of the Syariah Courts. [3] Although the Plaintiffs are framing their application under a federal civil statute, the core of their claim is a dispute of child custody (Hadanah) and biological parental rights between Muslims. It is rather unfortunate that neither parties' counsels addressed this issue from the outset. The landmark Federal Court jurisprudence such as Viran a/l Nagapan v Deepa a/p Subramaniam [2016] 1 MLJ 585 (the Deepa Case) and Indira Gandhi a/p Muthoo v Ketua Polis Negara [2016] 3 MLJ 141 (Indira Gandhi case), clarified that the civil courts only retain exclusive jurisdiction over custody disputes when they arise out of a civil marriage or where one party is a non-Muslim. When the dispute is entirely intra-Muslim and stems from Islamic family relations, the civil courts will refuse to entertain it. Using section 53 CA is an attempt to bypass the proper religious forum. [4] The husband/father in the Deepa case was Hindu and was legally married to the wife/mother (who is still a Hindu) under the Law Reform (Marriages and Divorce) Act 1976 (LRA). Following marital issues, the husband/father converted to Islam and unilaterally converted their two children. Without the wife/mother's knowledge, he obtained a custody order from the Seremban Syariah High Court. The wife/mother petitioned the Civil High Court for divorce and custody under the LRA. The Civil High Court granted her full custody. Two days later, the former husband/father abducted the five-year-old (the younger child) from the former wife/mother's house. She then successfully obtained a section 53 CA recovery order against the Inspector-General of Police to recover the younger child. The Federal Court varied the custody order. It reaffirmed that the Civil High Court had exclusive jurisdiction to dissolve the civil marriage and rule on all ancillary matters (custody, care and access). The Syariah Court order was wrong in law. Instead of enforcing recover order for the younger child, the Federal Court interviewed the children privately. Finding the elder child wished to remain with the former wife/mother and the younger child wished to stay with the former husband/father. So, the Federal Court split custody. [5] The ratio decidendi upheld in the Deepa case is that the Syariah Courts have no jurisdiction to dissolve a marriage contracted under the LRA or make custody orders arising from it. It is an abuse of process for a converting spouse to seek remedy in the Syariah Courts to defeat a Civil High Court action. In executing enforcement orders like section 53 CA recovery orders, the ultimate, paramount consideration is the present welfare and wishes of the child - section 88 LRA. The courts will refuse a mechanical recovery order if uprooting a child from an established status quo causes emotional distress. [6] There are two Federal Court decisions over the Indira Gandhi a/p Muthoo matters. In this Indira Gandhi case, when the husband converted to Islam, he took their youngest daughter then 11 months old and left. He then went to the Perak Registrar of Muallafs and unilaterally converted all three of their children in their absence and without the mother's consent. The Syariah Court granted custody to the father. The Civil high Court granted full custody to the mother and ordered the father to return their youngest daughter. He flagrantly disobeyed. [7] Instead of a simple custody suit, Indira filed a judicial review in the Civil High Court to quash the certificates of conversion issued by the Registrar of Muallafs on grounds of administrative law. The High Court allowed the application to quashed by the Court of appeal overturned it. At the Federal Court, arguments that religious conversion is a purely Islamic matter was heard. Majlis Agama Islam Perak argued that under Article 121(1A) FC, the Civil High Courts have no jurisdiction to look at or quash certificates issued by an Islamic authority. Furthermore, Article 12(4) allows the 'parent' (singular) to decide the religion of a minor. Indira contended that she was not asking the court to evaluate Islamic tenets but rather to review the administrative action of a statutory body like the Registrar of Muallafs who failed to comply with state enactments requiring the children to actually present themselves and utter the Shahdah (affirmation of faith). She argued 'parent' under Article 12(4) must mean both parents. [8] A unanimous five-men-Bench allowed Indira's appeal and nullified the certificates of conversion of all three children. It ruled that the inherent power of judicial review cannot be ousted as Article 121(1A) does not divest the civil courts of their constitutional power to review the legality of administrative actions taken by state religious authorities. The interpretation of statutes and the Federal Constitution belong exclusively to Civil High Courts. [9] Interpreting Article 12(4) dynamically and alongside the Guardianship of Infants Act 1961, the Federal Court held that the word 'parent' is a case of being lost in translation from the English text. It explicitly requires consent of both parents to alter the religious status of a child. A unilateral conversion shifts a child's legal status, subjecting them to an entirely new set of personal laws (Syariah Enactments). Doing this without the consent of both guardians strips the non-converting parent of their natural right to determine the child's upbringing. [10] Coming back to the case at hand, the child is a legitimate child borne out of a legal marriage pursuant to the Syariah laws. It is undisputed that all parties involve here are Muslims. Whilst the Plaintiffs seek a recovery order under section 53 CA, this Court must look at the true substance of the application, which is fundamentally an intra-Muslim dispute over child custody/hadanah. By virtue of Article 121(1A) FC, this Court has no jurisdiction to adjudicate upon the personal law and custodial rights of Muslims. The proper and exclusive forum for this dispute is the Syariah High Court under the relevant Negeri Sembilan Family Law Enactment. [11] Consequently, this Court will not enter into the merits of this application by the Plaintiffs or the facts surrounding the pending adoption of the child which is currently in process. The Originating Summons is hereby struck out. The parties are at liberty to pursue their remedies in the Syariah High Court. Minimal costs of RM1,000.00 subject to allocator, in these circumstances, are just and fair - it is so ordered in favour of the Defendants. DATED 22 JUNE 2026 ROZ MAWAR ROZAIN JUDGE HIGH COURT OF MALAYA SEREMBAN For the Plaintiffs : Mr. Jason Choo T.I. Chen & Co. For the Defendants: Mr. Shafrin Halim Halim & Ismail.