The family of nurse S Shamala - who is embroiled in a legal battle for custody of her children following her husband's conversion to Islam - has instructed her lawyers to discharge themselves.
However, the Court of Appeal would not allow this to take effect until the lawyers can officially inform Shamala, who is said to be living in Australia with her two sons.
The court therefore postponed the hearing which had been fixed for today (Aug 1, 2011).
The three-member panel was led by Justice Abu Samah Nordin and also comprised Justices Azhar Mohamed and Alizatul Khair Othman.
Shamala's ex-husband Muhammad Ridzwan Abdullah (formerly Dr M Jeyaganesh) had converted their children to Islam without her knowledge, triggering a long-running legal case to resolve a number of issues.
Her lawyers were earlier allowed to withdraw her appeal against the High Court ruling on April 13, 2004, that it has no jurisdiction to hear the matter of the children's conversion to Islam as the subject matter is under the Syariah Court's purview.
She also withdrew her cross-appeal for the custody of the children. The appellate court agreed not to order costs on the withdrawal of her appeals.
Three matters are pending resolution:
- A preliminary objection raised by Muhammad Ridzwan in the civil Kuala Lumpur High Court over its ruling that it has no jurisdiction to hear the children's conversion to Islam;
- Muhammad Ridzwan's appeal against the civil High Court for citing him for contempt and committing him to prison until he hands over the children, who he had converted to Islam, to their mother; and
- Shamala's application to set aside the Syariah Court warrant of arrest for running away with her children.
The civil division of the High Court had on July 20, 2004, granted the couple joint custody of the children, with a caveat that they should not be taught to eat pork and should not practise the Hindu faith.
Should this be breached, her former husband, Muhammad Ridzwan Abdullah (formerly Dr M Jeyaganesh), would be given sole custody of the children.
Muhammad Ridzwan has appealed against the joint custody, while Shamala has since dropped her cross-appeal.
Shamala is represented by Ravi Nekko, Steven Thiru and David Matthews while Muralee Menon appeared for Muhammad Ridzwan. The Federal Territory Islamic Council is represented by Zulkifli Che Yoong.
Thiru: A sad case
Thiru, in withdrawing the applications, said the family had asked the lawyers to discharge themselves as they could not seek instructions from Syamala, who has fled to Australia with her two children and has refused to comply with the Nov 12, 2010 Federal Court decision to return to this jurisdiction.
Thiru said this is a sad case where the wife was not notified about the conversion of her two children, which were done without her consent.
“Her situation is peculiar and sad. Hence, owing to these circumstances we apply that no order be made on costs,” he said.
Muralee, in reply and applying for costs of RM15,000, said the Federal Court had ruled that she had no right to be heard after she was found to be in contempt by running away with the children.
“Her counsel also do not know her whereabouts and have been given instructions via remote. How can she run litigation from outside the country?” Muralee asked.
Zulkifli also applied for similar amount as to costs, saying Baitulmal had to come up with the legal expenses.
After a short break, the three-member panel decided not to order costs.
No solution to unilateral conversion
However, Shamala's case, which had been hoped to provide some legal solutions to the religious and highly sensitive issue of unilateral conversion of children to Islam by one parent, did not came about when the Federal Court declined to hear the five questions last year.
This followed a preliminary objection allowed on Muralee's contention that Shamala had no right to be heard because a contempt proceeding had been initiated against her for fleeing to Australia with the two children, who were converted in 2002 when they were four and two years old respectively.
A five member panel led by Chief Justice Zaki Azmi allowed the preliminary objection.
The Chief Judge of Sabah and Sarawak Justice Richard Malanjum allowed Shamala and her children to return home, but the other judges did not.
Many cases, including that of M Indira, have been awaiting for the outcome of the Shamala case as a precedent - but this has not come about.