00:00This series serves as a platform for prominent leaders in the Malaysian legal industry
00:04to share their inspiring journeys and their paths to success.
00:08If we were to ask you to name three pivotal cases in your career,
00:15which ones would you name?
00:18Well, there are a few when I was sitting in the court of appeal,
00:21but perhaps the one that I am still thinking about it now is the case of Indira Gagi.
00:28Most of us would know Indira Gagi as it relates to the principle of judicial power.
00:37But this was a case which I decided in the minority,
00:41it was an appeal from the decision of Justice Lee Swee Seng in Nepal, if I'm not mistaken,
00:46on the recovery order and mandamus order.
00:49What happened here was Pak Manadhan, the husband, and Indira Gagi, the wife,
00:54or rather the father and the mother, were undergoing divorce, or they were divorced,
00:59I can't remember the facts correctly now, but the thing is this.
01:03Pak Manadhan converted, in 2009, he converted to Islam.
01:07They were Hindus and they were married under the Civil Law Divorce Act,
01:14Law Reform Marriage and Divorce Act.
01:16And when he converted to Islam, he converted the children as well.
01:20I think the youngest was about barely one year old, about 11 months old, the youngest.
01:26There are two other children, the elder ones.
01:29So what happened when he converted and converted the children as well,
01:34that was the case that came up until the Federal Court on the issue of conversion
01:41without the approval of both parents and so on and so forth.
01:46But in this particular instance, when Pak Manadhan converted to Islam,
01:52he went to the Syariah Court to obtain a custody order of the children.
01:58And this part is really something which I cannot comprehend.
02:08The youngest child was being snatched from the mother when she was still breastfeeding.
02:14She was 11 months old.
02:16So what happened?
02:17The father went to the Syariah Court and obtained a custody order from the Syariah Court.
02:23The first point I would like to make is this.
02:27What was the basis for the Syariah Court to assume jurisdiction
02:31when the marriage was a non-Muslim marriage
02:34and the mother was not before the Syariah Court?
02:37For obvious reasons, she is a non-Muslim and therefore she could not appear.
02:42The Syariah Court has no jurisdiction over her.
02:44Yet, there was a custody order made by the Syariah Court.
02:50Indira Gandhi, on the other hand, had a valid custody order given by the civil court.
02:57So that was a valid order because the principles of law are trite.
03:02When you contracted a civil marriage, whatever issues arising out of that civil marriage
03:07would have to be sorted out in the civil court.
03:11That's clear principles.
03:13No quarrel about that.
03:15So now we have two so-called conflicting custody orders.
03:23And when faced with these conflicting orders,
03:28I think Indira Gandhi went to the civil court to seek for a recovery order.
03:34So the mother, Indira Gandhi, went to the civil court to ask for a recovery order
03:40and also several other proceedings were going on,
03:42contempt against the husband and so on and so forth.
03:45Because the custody order which was granted by the civil court
03:50was served on the husband and he did nothing.
03:54So what happened was, finally the wife went to the civil court
03:59and applied for judicial review.
04:01For many days, she was asking the IGP or the police
04:05to search for the children to be given back to the mother.
04:10And that was the appeal that came up before me in the court of appeal
04:13where the IGP, the High Court judge, granted the mandamus order
04:17directing the IGP to search the children and bring them back to the mother.
04:25The IGP was not happy.
04:27There was an appeal before the court of appeal and I was a lone voice there, dissenting.
04:32Because to me, there is no basis, no justification even in Islam,
04:39as I understand Islam, to deprive a child of her mother
04:46and to deprive the mother of the child.
04:49What sin has Indira Gandhi committed against anyone of us
04:52such that she has to face this agony?
04:55From then, 2009 until now, I believe she still has not been...
05:04The children are still... don't know where.
05:08I don't think she has any news of where the children are until now.
05:13So where is the justice here?
05:17And I suspect the order of the civil court on the mandamus,
05:23on the custody order, whatever else that was issued by the civil court,
05:29were not enforced by the authorities or the powers that be
05:34because of the misconception that we need to protect Islam.
05:40So then, because this is also the question that was posed to me by one VIP,
05:44a very important person, telling me that
05:48when I... making a remark to me, making some remarks to me,
05:53that when I decided cases, I had not uphold the principles of Islam
05:59and not protecting Islam.
06:01And reference was made to that mandamus order that I made quite a bit.
06:05So when I asked, which principles of Islam are we talking about here
06:10that we need to uphold?
06:12I received no reply from him, no response at all.
06:15So my conclusion is that this has got nothing to do with the principles of Islam.
06:20It's just a matter of plain and simple fairness and justice
06:24that a mother ought not to be deprived of her children and vice versa.
Comments