FACULTY SYARIAH AND LAW

BACHELOR OF FIQH AND FATWA WITH HONOURS

SEMESTER 2, ACADEMIC SESSION 2022 / 2023

GROUP ASSIGNMENT: ESSAY WRITING

TITLE: CHILD CUSTODIAL-RIGHTS BETWEEN MUSLIM AND NON-MUSLIM

ADMINISTRATION OF ISLAMIC LAW IN MALAYSIA

LAB2013
KLC 2 / TLC 8

Prepared by:
NO NAME MATRIC NUMBER
1 AYU DAYANG AKHIRA BINTI MOHD NORCHULIS 1221613
2 NURULHUDA ANNATI BINTI MOHD KAMARUDIN 1221618
3 NIK NUR AMIERAH IZZATI BINTI MOHD ARIF 1221619
4 SITI QURRATUL AIN BINTI MD SAID RAMDZAN 1221620

Lecturer ‘s Name:
ASSOCIATE DR SYED NAJIB BIN SYED OMAR
 TABLE OF CONTENT

1. CASE 1

1.1 INTRODUCTION .......................................................................................... 3

1.2 FACTS OF THE CASE ................................................................................. 3

1.3 ISSUES ........................................................................................................ 4

1.4 RELEVANT STATUTES/PROVISIONS ........................................................ 4

1.5 PARTIES’ ARGUMENTS ............................................................................. 6

1.6 GROUND OF JUDGMENTS ........................................................................ 6

2. CASE 2

2.1 INTRODUCTION .......................................................................................... 8

2.2 FACTS OF THE CASE ................................................................................. 8

2.3 ISSUES ........................................................................................................ 9

2.4 RELEVANT STATUES/PROVISION ............................................................ 9

2.5 PARTIES’ ARGUMENTS ........................................................................... 10

2.6 GROUND OF JUDGMENTS ...................................................................... 11

3. CASE 3

3.1 INTRODUCTION ........................................................................................ 12

3.2 FACTS OF THE CASE ............................................................................... 12

3.3 ISSUES ...................................................................................................... 13

3.4 RELEVANT STATUTES/PROVISIONS ...................................................... 13

3.5 PARTIES’ ARGUMENTS ........................................................................... 14

3.6 GROUND OF JUDGMENTS ...................................................................... 14

REFERENCES

ATTACHMENT (CASES)

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1. Case 1:

TANG KONG MENG v ZAINON BTE MD ZAIN & ANOR

1.1 Introduction

I. Journal: Malayan Law Journal

II. Case: Tang Kong Meng v Zainon bte Md Zain & Anor

III. Citation: Tang Kong Meng v Zainon bte Md Zain & Anor [1995] 3 MLJ 408

IV. Court: High Court (Shah Alam)

V. Judge Panel: James Foong J

VI. Judgement Date: 15 June 1995

VII. Plaintiff: Tang Kong Meng

VIII. Defendants: Zainon bte Md Zain

: Suhaimi (Husband of Zainon)

1.2 Facts of the case

On December 3, 1986, an illegitimate child named Alvina Tang Mei Kwan was born to
Tang and Chong Mo Mooi, also known as Madam Chong. Since Tang was still legally wed to
another woman at the time, they were not married. Madam Chong claims that she gave
babysitters Zainon and Suhaimi custody of Alvina when she was just three months old in
exchange for RM180 per month. On the other hand, Tang claimed that Zainon and Suhaimi
worked for both him and Madam Chong. The court was more likely to believe the latter's
account after carefully weighing the evidence. Soon after, Tang and Madam Chong split up,
although they continued to visit Alvina occasionally. According to Madam Chong, Suhaimi and
Zainon continued to receive payment from Madam Chong for babysitting Alvina. In 1990, Tang
moved to Singapore to start a job. Suhaimi and Zainon both claim that Tang visited Alvina
again in 1991 and that he once spent two to three nights at their house sleeping in the same
room as his daughter Alvina.

Alvina had also been receiving intermittent visits from Madam Chong, who eventually
consented to let Suhaimi and Zainon adopt her and convert her to Islam. As a result, on
December 8, 1990, Suhaimi and Zainon submitted an application for the adoption of Alvina to
the Registrar of Adoptions [Registrar] in Daerah Gombak, Selangor, in accordance with the
Adoption Act 1952. This application was completed along with a letter authorising adoption
that was signed by Madam Chong. Tang's name was entered into the application, but no
information about his race, religion, or place of birth and more critically, his address, not
provided. Registrar claims that because Tang's whereabouts were unknown and not stated,
she was only able to conduct interviews with Suhaimi, Zainon, and Madam Chong. On May

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11, 1991, she registered the adoption of Alvina in the register of adoptions because all the
requirements for the adoption under the Act had been met and she had used her discretion to
waive any parent's permission as allowed by the Act. Alvina became a believer into Islam on
the same day and given the name Noralvina bte Abdullah.

Tang went to see Alvina in November 1991. He was not informed of her adoption or
conversion to Islam. In the months that followed, in June 1992, Tang took Alvina away from
Suhaimi and Zainon moved in with his sister in Menglembu, Perak. She had already started
attending a Chinese school by October 1992. Around this time, Tang heard via his brother in
Kuala Lumpur that he was wanted by the authorities for allegedly kidnapping Alvina. He
consequently turned himself in to the authorities right away. Zainon and Suhaimi received
Alvina back and the series of cases started. Alvina was nine years old at the time of the
hearing.

1.3 Issues

 Whether Tang Kong Meng is legally entitled to have custody of and care for his
daughter, Alvina.

 Whether Alvina’s participation in receiving religious instruction or participating in an

Islamic ceremony or act of worship in violation of art 12(4) Federal Constitution.

1.4 Relevant statutes/provisions

 s 6 of the Registration of Adoptions 1952

6. (1) Where at the date when application for registration is made any child under the age of
eighteen years who has never been married is in the custody of, and is being brought up,
maintained and educated by any person, or by two spouses jointly, as his, her or their own
child under any de facto adoption, and has for a period of not less than two years continuously
and immediately before the date of such application been in such custody and has been so
brought up, maintained and educated, the Registrar may, upon the application, in the form in
the First Schedule, of such person or spouses, register the adoption if-

(a) such person or spouses and the child shall appear before the Registrar and shall
produce to the Registrar such evidence either oral or documentary as may satisfy the
Registrar that such adoption took place;

(b) the parents or one of the parents, or, if both the parents are dead or if neither of the parents
is within Peninsular Malaysia, any guardian of the child shall appear before the Registrar and
express consent to the adoption: Provided that if the Registrar is satisfied that in all the
circumstances of the case it is just and equitable and for the welfare of the child he may
dispense with the consent of any parent or custodian of the child or with the appearance of
any parent or custodian who shall have signified his consent by statutory declaration; and

(c) the prescribed fees are paid.

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(2) The Registrar shall register an adoption by entering the particulars thereof in the register.

Copies of registration to be delivered to applicant.

Based on this case, the plaintiff claimed that since Madam Chong had abandoned
him, he had taken over guardianship duties, and as the defendants had failed to provide for
Alvina's care as required by section 6 of the Registration of Adoptions 1952 (the Act) as
mentioned above, the adoption was unlawful.

 s 27 of the Civil Law Act

In all cases relating to the custody and control of infants the law to be administered shall be
the same as would have been administered in like cases in England at the date of the coming
into force of this Act, regard being had to the religion and customs of the parties concerned,
unless other provision is or shall be made by any written law.

In relation to this case, Alvina's status as Madam Chong and Tang's illegitimate child
was never in question in this case. Even Encik Karpal Singh, lawyer of defendants, has openly
acknowledged that since the child is an illegitimate one, the putative father has no civil legal
authority over him and that the mother has both a duty to support the child and a right to sole
custody. This was referred to the cases of R v Brighton (Inhabitants) (1861) 1 B & S 447 and
Horner v Horner (1799) 1 Hag Con 377 which were accepted in our Malaysian courts in T v O
[1993] 1 MLJ 168 and Tam Ley Chian v Seah Heng Lye [1993] 3 MLJ 696.

 art 12(4) of the Federal Constitution

For the purposes of Clause (3) the religion of a person under the age of eighteen years shall
be decided by his parent or guardian.

In this case, Alvina was still a minor when she converted to Islam, therefore Suhaimi
and Zainon were unable to decide on her religion because they were neither Alvina's parents
nor legal guardians without this adoption registration. The Federal Constitution's article 12(4),
which reads as follows, makes provision for this. In accordance with this clause, the court
hereby permits Tang to make the request in case no. 24-1027-93 that Alvina not receive any
more religious instruction or participate in any rituals or acts of worship of the Islamic faith.

 s 24(d) of the Courts of Judicature Act 1964

Jurisdiction to appoint and control guardians of infants and generally over the person and
property of infants.

The defendants were chosen as the court's appointed guardians in accordance with s.
24(d) of the Courts of Judicature Act 1964 because they wanted Alvina to be their child and
had cared for her practically since birth. However, since she was under 18 and was not allowed
to participate in any Islamic religious practises, they had no right to determine her religion. She
was made available to the plaintiff and Madam Chong once a month.

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 1.5 Parties’ arguments

Plaintiff Argument

 The plaintiff argued that because Madam Chong had abandoned him, he had taken
on the position of guardian, and because the defendants had not met the criteria of
custody and maintenance of Alvina under section 6 of the Registration of Adoptions
1952 (the Act), the adoption was unlawful.

Defendant Argument

 The first defendant sought, among other things, a declaration that Alvina's adoption
was lawful and that he be granted custody of her on the grounds, among others, that
since she was an illegitimate child, Madam Chong, who was her natural mother, had
sole custody of her and could legally consent to the adoption.

1.6 Ground of judgements

The judge made specific notice of the delicate nature of the case in his opening
remarks, noting that it affected the "human feelings of the parties and the racial and religious
sensitivity of the two major races in the country generally." The judge further stressed the
importance of a young child's welfare in this case. Alvina's paternity as the illegitimate child of
Chong Mo Mooi and the plaintiff, Tang Kong Meng was undisputed, he said. Being the father
of an illegitimate child, the plaintiff was not entitled to custody under civil law. In terms of law,
the illegitimate kid belongs to and must be raised exclusively by the natural mother. The
mother has a responsibility to care for the child. Even if the mother of an illegitimate child is
the child's guardian under the Married Women and Children (support) Act of 1950, she may
still request support from the putative father if he fails to do so. The Judge first addressed the
question of whether Chong Mo Mooi had given up her right to care for Alvina exclusively and,
consequently, her right to give her assent to the adoption. His Lordship came to the conclusion
that Chong Mo Mooi had not abandoned her rights after taking into account the material "as a
whole." Despite being apart from the plaintiff, she kept seeing Alvina and paying for her
upkeep. She was thus allowed to offer Alvina's adoption her legally binding permission.

The judge then started debating Alvina's purported adoption. He stated that, in
accordance with section 6(1) of the Adoption Act, consent was just one of many requirements.
The court specifically mentioned two of these demands for its consideration:

1) First, wether the defendants had custody over Alvina for a continuous period of two
years before the registration of the adoption.

2) Second, wether Alvina was maintained by the defendants for that same period.

The term "custody" in this case, according to the court, meant "physical custody." It was
determined that as a result, the defendants had custody of Alvina at the relevant time. In this
case, it was crucial to determine if Zainon and Suhaimi had cared for and raised Alvina for a
continuous two years previous to the adoption's registration. Despite the defendants' denials,
the evidence supported their receipt of funds for the child's upbringing from Chong Mo Mooi.

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The court ruled that because the defendants had received these payments, they could not be
deemed to have maintained the child as required by section 6(1) of the Act. He asserted that
the registration of the adoption would be void ab initio, meaning that the result would have no
legal effect from the beginning, if any of the requirements under that article were not met.
Suhaimi and Zainon's custody of Alvina from the time of her birth until the time of registration
was declared to have been null and void due to their failure to maintain her. As a result, the
Judge mandated that Alvina's adoption registration be removed from the records.

Because Alvina was still a minor when she converted to Islam, Suhaimi and Zainon,
who are not Alvina's parents or legal guardians, would not have been able to decide on her
religion without this adoption registration. This is provided for under art 12(4) of the Federal
Constitution which reads as follows: For the purposes of Clause (3) the religion of a person
under the age of eighteen years shall be decided by his parent or guardian.

In accordance with this provision, the court hereby grants Tang's request in case no.
24-1027-93 permission to declare that Alvina should not continue to receive religious
instruction or participate in any ceremonies or acts of worship of the Islamic faith.

Finally, the court recognised that although Chong Mo Mooi had the legal privilege of
being the biological mother of an illegitimate child, she had explicitly declared that the
defendants would provide a better life for Alvina. The court could see that Chong Mo Mooi had
no desire to take physical control of Alvina and neither the ability nor the interest to do so. The
judge also stated that Chong Mo Mooi was not qualified to care for Alvina since she had two
other children who were not hers by two other men. Despite having a stable financial situation,
the plaintiff found it challenging to be with the child because of his job in Singapore. The court
designated the defendants as Alvina's guardians after taking into account all the relevant
factors and affirming that the child's wellbeing came first. Alvina's custody was awarded to the
accused, but it wasn't provided without conditions. The judge informed the defendants that up
until a different ruling was made by the court:

1) They must permit the plaintiff's and Chong Mo Mooi's weekend visits to Alvina once
a month and to pick her up at 10 a.m. on Saturday to spend time with them,
returning her by 7 p.m. on Sunday.

2) They should refrain from determining Alvina's faith.

3) They cannot force Alvina to participate in any ceremony or act of worship related
to the Islamic faith. 

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2. Case 2:

CHANG AH MEE v JABATAN HAL EHWAL AGAMA ISLAM, MAJLIS UGAMA ISLAM SABAH
& ORS

2.1 Introduction

I. Journal: Malayan Law Journal

II. Case: Chang Ah Mee v Jabatan Hal Ehwal Agama Islam, Majlis Ugama Islam
Sabah & Ors

III. Citation: Chang Ah Mee v Jabatan Hal Ehwal Agama Islam, Majlis Ugama

Islam Sabah & Ors [2015] 1 SHLR 51

IV. Court: High Court (Kota Kinabalu)

V. Judge Panel: Ian Chin J

VI. Judgement Date: 11 December 2002

VII. Appellants: Chang Ah Mee

: Edwin Tsen

VIII. Respondents: Jabatan Hal Ehwal Agama Islam Ugama Islam Sabah

: Majlis Ugama Islam Sabah

: The Government of Sabah

: Athmat Hassan

: Razali Tazi

2.2 Facts of the case

In 1995 the Plaintiff was married to one Khoo Tak Jin and the infant turned into born
in 1996. Later the Defendant transformed to Islam without the understanding of the Plaintiff
on 23 January 1998, and the little one changed into also converted on 17 July 1998 without
the consent of the Plaintiff. Then on 28 July 1998 the father (Defendant) obtained an order
from the Syariah decrease courtroom affirming his marriage changed into null and void and
granting him custody of the little one, but this order changed into sooner or later reversed by
using the Syariah high court on 4 November 1998. On 13 November 1998, high courtroom at
Kota Kinabalu granted custody to the Plaintiff. Defendants argue whether it's miles the
jurisdiction of this courtroom (high court docket) to pay attention the present application, even
as the Plaintiff questions the legality of the conversion of the infant to Islam.

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 2.3 Issues

 The issue to be decided is whether the term 'parents' in section 68 of the Administration
of Islamic Law refers to both parents (father and mother) or simply one parent.
 Determine whether the conversion to Islam and the naming of the baby are null and
void.

2.4 Relevant statutes/provisions

 Federal Constitutional

Article 12 of the Federal Constitution: Rights in respect of education

(1) Without prejudice to the generality of art 8, there shall be no discrimination against any
citizen on the grounds only of religion, race, descent or place of birth- (a) in the administration
of any educational institution maintained by a public authority, and, in particular, the admission
of pupils or students or the payment of fees; or (b) in providing out of the funds of a public
authority, financial aid for the maintenance or education of pupils or students in any
educational institution (whether or not maintained by a public authority and whether within or
outside the Federation).

(2) Every religious group has the right to establish and maintain institutions for the education
of children in its own religion, and there shall be no discrimination on the ground only of religion
in any law relating to such institutions or in the administration of any such law; but it shall be
lawful for the Federation or a State to establish or maintain or assist in establishing or
maintaining Islamic institutions or provide or assist in providing instruction in the religion of
Islam and incur such expenditure as may be necessary for the purpose.

(3) No person shall be required to receive instruction in or to take part in any ceremony or act
of worship of a religion other than his own.

(4) For the purposes of clause (3) the religion of a person under the age of eighteen years-old
shall be decided by his parent or guardian.

Section 75 of the Federal Constitution: It is stated that if a state law is in conflict with a federal
law, the federal law takes precedence, and the state law is null and void to the extent of the
inconsistency.

 Administration of Islamic law Enactment 1992 (SABAH)

Section 68: For the intent of this part, it stated that a person who is not a Muslim may convert
to Islam if he reaches the age of baligh according to Islamic law, provided that if a person is
under the age of eighteen (18), enactment must be obtained from his parents or guardian.

Section 69: For a person's conversion to Islam to be valid, the following requirements must be
met. First, the person must recite the two clauses of the Affirmation of Faith in reasonably
understandable Arabic. Next, the person must be aware that the two clauses of the Affirmation
of Faith mean "I bear witness that there is no god, but Allah and I bear witness that the Prophet

9
Muhammad S.A.W. is the Messenger of Allah," and the utterance must be made of the
person's own free will. Also, a person who is unable to speak may itter the two classes of the
Affirmation of Faith using signs that convey the meaning specified in paragraph (b) of that
subsection to fulfill the requirement of paragraph (a) of subsection (1).

 Guardianship of toddlers Ordinance (Cap 54) section 5

Section 5: It stated that a mother shall have the same rights and authority as a father in relation
to the custody or upbringing of an infant, or the administration of any property belonging to or
held in trust for an infant, or the application of the income from any such property, and the
rights and authority of mother and father shall be equal. Following that, the mother of an infant
has the same powers as the father to petition the Court in any matter affecting the infant.

 Marriage and Divorce Law Reform Act of 1976

Section 51: Provided that in (2) when dissolving a marriage, the Court may make provisions
for the wife or husband, as well as for the support, care, and custody of any children of the
marriage, and may attach any conditions to the dissolution decree as it sees fit.

Section 88: It is stated that in (3) there shall be a rebuttable presumption that it is in the best
interests of a child under the age of seven years to be with his or her mother; however, in
determining whether that presumption applies to the facts of any particular case, the court
shall consider the unfavorability of disrupting a child's life by changes of custody.

Section 89:(1) An order for custody may be made subject to such conditions as the court
deems fit to impose, and subject to such conditions, if any, as may apply from time to time,
shall entitle the person given custody to make all decisions concerning the child's upbringing
and education.

2.5 Parties’ arguments

Plaintiff Arguments
 The plaintiff argued about the toddler's conversion's legality.
 The plaintiff claims that her right became violated and that, within the situations of this
example, her consent should have been acquired due to her right to custody and to
determine at the religious education of the infant

Respondent Arguments
 Defendants argued that the word 'dad and mom' in phase 68 of the administration of
Islamic regulation Enactment 1992 needed to be interpreted as the singular 'figure'.
 Consistent with the defendants, decoding phase 68 to require the consent of both dad
and mom could be inconsistent with Article 12(4) of the Federal Constitution, which

10
 they claimed required only a figure's consent for topics bearing on the selection of an
infant's faith. The statement changed to granted" with expenses for the plaintiff.

2.6 Ground of judgments

In Section 68 of the Enactment, the word "parents" is used in the plural, which is both
literal and common. The mother and father are the interpreters. The phrase "dad or mother"
in Section 68 of the Enactment should also be understood to refer to both parents as they
have the same rights under the Guardianship of Babies Ordinance, which significantly
increases parental obligations (see p. 111B-E).

The Federal Constitution no longer tolerates gender discrimination, and because

mothers and dads have equal rights to a child's person and property, the term "discerned" in
Article 12(4) must always indicate whether either parent is a living parent. Allowing just the
parents to choose the religion should always advocate denying the other person their
constitutional right (Article 12(4)). In light of the fact that art. 12(4) grants the right to both the
mother and the father, the phrase "dad and mom" in s. 68 of the Enactment does not conflict
with it (see p. 112D-E).

The plaintiff possessed legal custody of her toddler, which included the right to choose
the toddler's religious education. The spouse breached this right by approving the conversion
of the child, therefore violating it. In addition to the plaintiff's right, the Koran forbids coercion
in matters of faith, which implies that the plaintiff and, through her, the child, cannot and must
no longer be forced to enrol in an Islamic religious college (see p. 113B-E).
Aside from the specified consent of the mother and father, or mom or dad, the two-
year-old infant had an amazing way to utter in reasonably intelligible Arabic the clauses of the
confirmation of faith and to comprehend their meanings nicely by way of a unique feature of
s. 69 of the Enactment. The legislation clearly states that a person must be of the age of baligh,
which means full age or adulthood, in order to recite and grasp the contents of the clauses. In
the instant case, the child was no longer of Baligh's age, and as a result, her conversion
changed closer to the enactment (see p. 114A–E).

The interpretation of a nation's legislation (the enactment) became an issue within the
immediate case. Despite the fact that national law prohibits the administration of Islamic law
(see p. 115G), a civil court [*108] has the authority to carry out that task; see Majlis Ugama
Islam Pulau Pinang dan Seberang Perai v. Shaik Zolkaffily bin Shaik Natar et al. [2002] 4 MLJ
130 (followed) for more information.

As a result of the foregoing, the judge rules that the conversion of the infant to Islam
on July 17, 1998, her naming as Faridah Ibrahim Khoo, and the issuance of the certificate
regarding the conversion and naming by the second defendant are all invalid because they
violate Section 68 of the Enactment and the infant is only two years old and has not yet
reached the age of puberty or baligh. Costs to the plaintiff against each and every defendant.

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3. Case 3:

LOH SIEW HONG v NAZIRAH NANTHAKUMAR BT ABDULLAH & ANOR

3.1 Introduction

I. Journal: Malayan Law Journal

II. Case: Loh Siew Hong v Nazirah Nanthakumar Bt Abdullah & Anor

III. Citation: Loh Siew Hong v Nazirah Nanthakumar Bt Abdullah & Anor
[2023] 9 MLJ 30

IV. Court: High Court (Kuala Lumpur)

V. Judge Panel: Collin Lawrence Sequerah

VI. Judgement Date: 18 March 2022

VII. Appellants: Loh Siew Hong

VIII. Respondents: Nazirah Nanthakumar Bt Abdullah

3.2 Facts of the case

The applicant (Loh Siew Hong) was married to Nagahswaran a/I Muniandy
(Nagahswaran) and had three biological children respectively under the age of eighteen years
old. Loh Siew Hong applied to court for the personal custody of her three children from the
first respondent, Nazirah Nanthakumar Binti Abdullah, and the second respondent, Jabatan
Kebajikan Masyarakat Perlis. In this case, Jabatan Kebajikan Masyarakat Perlis as the second
respondent was not represented.

On 31 March 2021, the Family Division of the Kuala Lumpur High Court (KLHC)
ordered the sole custody, care and control of the said children to be given to Loh Siew Hong.
Loh Siew Hong came to know that her children were in the custody of Nazirah at the Hidayah
Centre Foundation in Bayan Lepas, Penang. Loh Siew Hong averred that Nazirah had
prevented her from meeting and taking her children into her care and custody.

On 11 February 2022, Loh Siew Hong went to Asrama Lelaki Tahfiz al-Hambra at
Kepala Batas, Penang after having the unformatted that her children were there only to be
told that her children were re-located elsewhere. Then Loh Siew Hong decided to lodge a
police report at Butterworth, Penang on 12 February 2022. Subsequent to this, Nazirah
communicated with Loh Siew Hong through Facebook Messenger and WhatsApp, and
informed her that her children were now in Perlis. Nazirah lodged a police report because the
allegations widely disseminated through the media by Loh Siew Hong that she was hiding the
children were unfounded. On 14 February 2022, Nazirah handed over the children to the

12
Jabatan Kebajikan Masyarakat Perlis with the agreement of Loh Siew Hong and the children
were no longer in her care and custody.

In the middle of the case between Loh Siew Hong and the respondent, the husband
and the children of Loh Siew Hong converted to Islamic faith. Nagahswaran fortuitously met
an old acquaintance the name of Abdul Khadir at a hospital when Nagahswaran went to collect
medication for his children due to Nagahswaran being involved in a motorcycle accident with
his children. When meeting his friend, Nagahswaran communicated his desire and interest in
embracing the Islamic faith to Abdul Khadir. This meeting between the two men resulted in
both of them and the said children in tow going to the Pejabat Agama Islam Perlis on 7 July
2020 where the Nagahswaran and the three children converted to the Islamic faith. Nazirah
stated that Abdul Khadir contacted her and requested for her help in providing motivation and
an understanding of Islam to Nagahswaran and the three children. Nazirah advised Abdul
Khadir to pay attention to the children’s schooling needs and assist Nagahswaran in
registering for religious courses with a view to understanding the religion. Nazirah further
stated that a person known as Brother Ben arranged for the schooling of the three children,
she also said that she got permission from rom Nagahswaran to send the children to school
as well as arranged for their welfare.

3.3 Issues

 whether the attempt to prevent reunification between mother and children was done
mala fide.
 whether court had power and jurisdiction of the court to hear the application for
habeas corpus

3.4 Relevant statutes and provisions

 Federal Constitution Article 12(4)

In clause (3), No person shall be required to receive instruction in or to take part in any
ceremony or act of worship of a religion other than his own. Clause (4) said, For the purposes
of Clause (3) the religion of a person under the age of eighteen years shall be decided by his
parent or guardian.

In related to the case, on 7 July 2020 at Pejabat Agama Islam Perlis, the three children of the
applicant and Nagashwaran are under the age was unilateral conversion to Islamic faith by
consented only from his father. It is unlawful because article 12(4) federal constitution said
that the religion of the children under the age of eighteen years must be decided by parent
and guardian. The single word “parent” includes the plural “parents” means father and mother
which need consented to the religion of the children and cannot be unilateral conversion.

 Child Act 2001 (611)

The interpretation of child in Child Act 2001 (611) is “child” means a person under the age of
eighteen years.

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In this case, two children of applicant were 14 years old and 11 years old respectively under
the age must need the consented from parents to conversion to Islamic faith.

3.5 Parties arguments

Appellant Arguments

 The children were placed under the custody and care of the first respondent and/or
the second respondent, despite a court order granting sole custody, care, and
control to Loh Siew Hong.
 She filed an application for habeas corpus to have her children returned to her.

Respondent Arguments (First Respondent)

 The court ruling granting Loh Siew Hong sole custody, care and control of the
three children was made known to the first respondent.
 The first respondent contended that the application was moot as far as she was
concerned because the children were not in her custody at the time it was
submitted.

Respondent Arguments (Second Respondent)

 The Social Welfare Department did not dispute that they were detaining the
children but argued that they were doing so in accordance with their statutory
duties.

3.6 Ground of judgments

In response, the first respondent reaffirmed that she was unaware of any court order
pertaining to the children's sole custody, care, and control. The first respondent and the
applicant's WhatsApp conversation, however, revealed that the applicant had forwarded a
copy of the court order to the first respondent. The orders indicated that a PDF version of two
sealed copies of court orders was sent to the first respondent, even though they were not fully
viewable and not visually clear. There was also an earlier message from the applicant to the
first respondent, in which the applicant begged the first respondent to give the applicant the
children. As a result, it was evident that the first respondent was aware of the court's decision
giving the applicant sole custody of the three kids.

The children were given to the Jabatan Kebajikan Negeri Perlis on February 14, 2022,
according to the affidavit in response to the first respondent, though purportedly with the
applicant's permission. Despite this reality, the first respondent continued to have custody,
care, and control of the children at the time the current application was filed by the applicant
on February 13, 2022. In light of the most recent ruling in Lei Meng v. Inspektor Wayandiana
bin Abdullah & Ors and Other Appeals, the first respondent did not deem the present
application to be academic. Whereas, according to the second respondent, the children were
in the custody and care of the Jabatan Kebajikan.

Unilateral conversion is prohibited when it comes to a child's religious upbringing since

both parents must agree (Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak &

14
Ors and other appeals. The unilateral conversion of the children by Nagashwaran was,
therefore, illegal because there was no proof that the petitioner had given his or her approval
in this circumstance. Even if the children were converted prior to the judgement nisi, the first
respondent's argument that there was no problem of unilateral conversion did not change the
reality that there was a case of unilateral conversion. Thus, Nagashwaran's unilateral
conversion of the children and his reluctance to provide the applicant custody of the children
were intimately linked, which is what prompted the filing of this application. The subsequent
attempt to stop the reunion of mother and children smack, nay, reeks of mala fide.

The applicant had already been granted sole custody, care, and control of the three
kids by an interim ex parte order. These court rulings had not been overturned or annulled,
and they remained in effect. The three children, who were all minors at the time of the hearing,
should have only the applicant's custody, care, and control. Its peremptory nature was further
emphasised by a section in the relevant court order that instructed the police to take all
necessary steps to guarantee compliance with the order. The fact that things had to get to this
point just served to highlight the careless, smug, and disrespectful actions of those responsible
for preventing the children from being properly reunited with the applicant. The children were
to be immediately released into the applicant's sole custody, care, and control after the
application for the writ of habeas corpus to be issued in accordance with encl 1 of the notice
of motion was approved in the premises.

15
REFERENCES

Tang Kong Meng v Zainon bte Md Zain & Anor [1995] 3 MLJ 408

Chang Ah Mee v Jabatan Hal Ehwal Agama Islam, Majlis Ugama Islam Sabah & Ors [2015]
1 SHLR 51

Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor [2023] 9 MLJ 30

Article 12(4) Federal Constitution of Malaysia 1957

Akta Kanak-Kanak 2001 (akta 611); & child act 2001 (act 611): Hingga 5HB Januari 2005
(2005). bill.

Civil Law Act, s 27

Registration of Adoption, s 6 1952

Courts of Judicature Act, s 24(d) 1964

16
Attachment
Case 1:
Date and Time: Sunday, 14 May 2023 9:31:00PM MYT
Job Number: 197048341

Document (1)

1. TANG KONG MENG v ZAINON BTE MD ZAIN & ANOR, [1995] 3 MLJ 408
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 TANG KONG MENG v ZAINON BTE MD ZAIN & ANOR
CaseAnalysis
| [1995] 3 MLJ 408

TANG KONG MENG v ZAINON BTE MD ZAIN & ANOR [1995] 3 MLJ 408
Malayan Law Journal Reports · 8 pages

HIGH COURT (SHAH ALAM)

JAMES FOONG J
ORIGINATING SUMMONS NO 24-1027-93, , CONSOLIDATED WITH ORIGINATING SUMMONS NO 24-463-94
15 June 1995

Case Summary
Family Law — Children — Adoption — Illegitimate child — Consent of natural mother obtained — Whether
consent of natural father can be dispensed with — Requirements of valid adoption — Registration of
Adoptions Act 1952 s 6(1)

Family Law — Children — Custodianship — Infant — Paramount consideration — Welfare of the child —
Factors taken into account — Courts of Judicature Act 1964 s 24(d)

Family Law — Children — Minor's religion — Minor given up for adoption — Adoption null and void — Who
to decide on minor's religion — Federal Constitution art 12(4)

The plaintiff was the natural father of an illegitimate child named Alvina Tang Mei Kwan ('Alvina') born to one
Chong Mo Mooi ('Mdm Chong') on 3 December 1986. Mdm Chong gave up Alvina for adoption to the defendants
who had been Alvina's baby sitters since she was three months old. The application for adoption was processed
with Mdm Chong's letter of consent but without the plaintiff's knowledge or consent. However, the Registrar of
Adoptions exercised her discretion to dispense with the consent of any parent as provided under the Registration of
Adoptions Act 1952 and registered Alvina's adoption on 11 May 1991. On the same day, she was converted to the
Islamic faith and renamed Noralvina bte Abdullah. The plaintiff applied for declarations that: (i) he was lawfully
entitled to the custody and care of Alvina; (ii) the receipt by Alvina of religious instructions or her participation in
any ceremony or act of worship of the Islamic faith was in contrary to art 12(4) of the Federal Constitution; and (iii)
the defendants do deliver Alvina to him. The plaintiff argued that as Mdm Chong had left the plaintiff, he had
assumed the role of guardian, and as the requirement of custody and maintainance of Alvina by the defendants
under s 6 of the Registration of Adoptions 1952 ('the Act') was not fulfilled, the adoption was invalid. On the other
hand, the first defendant sought, inter alia, a declaration that the registration of the adoption of Alvina was lawful
and the right to custody of Alvina be granted to him on the grounds, inter alia, that as Alvina was an illegitimate
child, Mdm Chong, as Alvina's natural mother, had exclusive care and custody of her and could give a valid
consent to the adoption.
Held, allowing the plaintiff's application and dismissing the defendants' application but granting custody to the
defendants:

(1) As Alvina was an illegitimate child, her natural mother, Mdm Chong, had the obligation to maintain her and
had exclusive [*409]
care of her. On the evidence, it could not be said that Mdm Chong had abandoned her rights since she
had continued to visit Alvina and pay for her maintanence before adoption. Therefore, she could give her
consent to the registration of Alvina's adoption.
(2) However, there are other requirements for adoption under s 6 of the Act, in particular, the requirements
that the prospective parents must have had continuous custody of and maintained the child for a period of
two years before the application for adoption.
 Page 2 of 6
TANG KONG MENG v ZAINON BTE MD ZAIN & ANOR

(3) As the meaning of 'custody' is not defined in the Act or in any other relevant Malaysian law, the court
deduced it to mean physical custody in this case. The defendants had physical custody of Alvina for more
than two years before the application for adoption, and as such, they had 'custody' over her as required by
s 6(1) of the Act. However, Alvina's maintanence was paid by Mdm Chong and the plaintiff throughout the
period. Since the requirements under s 6(1) are conjunctive, failure to satisfy any one condition resulted in
the registration of the adoption of Alvina being void ab initio.
(4) In considering the question of custody, the welfare of the child is of paramount importance. Since the
defendants wanted Alvina for their child and had taken care of her practically since birth, they were
appointed as the court's appointed guardians pursuant to s 24(d) of the Courts of Judicature Act 1964.
However, they did not have the right to decide on her religion as she was under 18 years of age and
Alvina was not to take part in any act of worship of the Islamic faith. The plaintiff and Mdm Chong were
granted access to her once a month.

[Bahasa Malaysia summary

Plaintif merupakan bapa sebenar seorang anak tak sah taraf bernama Alvina Tang Mei Kwan ('Alvina') yang
dilahirkan kepada seorang yang bernama Chong Mo Mooi ('Pn Chong') pada 3 Disember 1986. Pn Chong telah
memberikan anaknya untuk dijadikan anak angkat defendan yang merupakan penjaganya sejak beliau berumur
tiga bulan. Permohonan pengangkatan telah diproses dengan surat keizinan Pn Chong tetapi tanpa keizinan atau
pengetahuan plaintif. Walau bagaimanapun, Pendaftar Pengangkatan telah menggunakan budi bicaranya untuk
mengenepikan kebenaran mana-mana ibu bapa seperti yang diperuntukkan di dalam Akta Pendaftaran
Pengangkatan 1952 dan telah mendaftarkan pengangkatan Alvina pada 11 Mei 1991. Pada hari yang sama, beliau
telah memeluk agama Islam dan dinamakan Noralvina bte Abdullah. Plaintif telah memohon untuk deklarasi
bahawa: (i) beliau berhak menjaga dan memelihara Alvina; (ii) penerimaan ajaran ugama Islam atau penyertaan
Alvina di dalam apa-apa acara atau sembahyang mengikut ajaran Islam adalah menyalahi perkara 12(4)
Perlembagaan Persekutuan; dan (iii) defendan hendaklah menyerahkan Alvina kepadanya. Plaintif berhujah
bahawa oleh kerana Pn Chong telah meninggalkan plaintif, [*410]
beliau telah mengambil alih peranan penjaga, dan oleh kerana keperluan jagaan dan penyaraan Alvina oleh
defendan di bawah s 6 Akta Pendaftaran Pengangkatan 1952 ('Akta itu') tidak dipenuhi, pengangkatan itu tidak sah.
Sebaliknya, defendan pertama memohon, antara lainnya, suatu deklarasi bahawa pendaftaran pengangkatan
Alvina adalah sah dan supaya hak menjaga Alvina diberikan kepadanya atas alasan, antara lain, bahawa oleh
kerana Alvina adalah seorang anak tak sah taraf, Pn Chong, sebagai ibunya sebenar mempunyai pemeliharaan
dan jagaannya yang eksklusif dan boleh memberi kebenaran yang sah untuk pengangkatan itu.

Diputuskan, membenarkan permohonan plaintif dan mengenepikan permohonan defendan tetapi memberi hak
penjagaan kepada defendan:

(1) Oleh kerana Alvina adalah seorang anak tak sah taraf, ibunya yang sebenar, Pn Chong, mempunyai
tanggungjawab untuk menyaranya dan mempunyai hak eksklusif untuk memeliharanya. Mengikut
keterangan, tidak boleh dikatakan bahawa Pn Chong telah menyerahkan haknya kerana beliau terus
mengunjungi Alvina dan membayar untuk penyaraannya sebelum pengangkatan. Oleh yang demikian,
beliau boleh memberikan keizinannya untuk pendaftaran pengangkatan Alvina.
(2) Walau bagaimanapun, terdapat keperluan lain untuk pengangkatan di bawah s 6(1) Akta itu, terutamanya
keperluan bahawa bakal ibu bapa itu mestilah mempunyai jagaan yang berterusan dan menyara anak itu
bagi tempoh dua tahun sebelum permohonan untuk pengangkatan dibuat.
(3) Oleh kerana perkataan 'jagaan' tidak ditakrifkan di dalam Akta itu atau di dalam mana-mana undang-
undang Malaysia lain yang releven, mahkamah membuat kesimpulan bahawa ia bermaksud jagaan fizikal
di dalam kes ini. Defendan mempunyai jagaan fizikal Alvina untuk lebih daripada dua tahun sebelum
permohonan untuk pengangkatan itu, dan dengan demikian, mereka mempunyai 'jagaan' Alvina seperti
yang diperlukan oleh s 6(1) Akta itu. Tetapi, penyaraan Alvina telah dibayar oleh Pn Chong dan plaintif
sepanjang tempoh itu. Oleh kerana keperluan di bawah s 6(1) adalah bersifat penghubung, kegagalan
untuk memenuhi mana-mana satu syarat mengakibatkan pendaftaran pengangkatan Alvina menjadi tak
sah ab initio.
(4) Dalam mempertimbangkan soalan mengenai jagaan, kebajikan anak itu adalah kepentingan utama. Oleh
kerana defendan mahu menjadikan Alvina anak mereka dan boleh dikatakan telah menjaganya dari masa
beliau dilahirkan, mereka telah dilantik sebagai penjaga Alvina yang dilantik oleh mahkamah di bawah
s 24(d) Akta Mahkamah Kehakiman 1964. Bagaimanapun, mereka tidak mempunyai hak untuk membuat
 Page 3 of 6
TANG KONG MENG v ZAINON BTE MD ZAIN & ANOR

keputusan tentang agamanya kerana beliau berumur di bawah 18 tahun dan Alvina tidak dibenarkan
mengambil bahagian dalam sebarang adat [*411]
sembahyang mengikut ajaran agama Islam. Plaintif dan Pn Chong dibenarkan akses kepada beliau
sebulan sekali.]

Editorial Note:The plaintiff has appealed to the Court of Appeal.

Notes

For cases on children, see 7 Mallal's Digest (4th Ed, 1995 Reissue) paras 1754-1857.
Cases referred to

Horner v Horner [1799] 1 Hag Con 377 (refd)

R v Brighton (Inhabitants) [1861] 1 B & S 447 (refd)

T v O [1993] 1 MLJ 168 (refd)

Tam Ley Chian v Seah Heng Lye [1993] 3 MLJ 696 (refd)
Legislation referred to

Federal Constitutionart 12(4)

Adoption Act 1952

Civil Law Act 1956s 27

Courts of Judicature Act 1964s 24

Registration of Adoptions Act 1952s 6(1)

Karpal Singh (Karpal Singh & Co) for the plaintiff.

Mohamad Ibrahim (Mohamad Ibrahim & Co) for the defendants.

JAMES FOONG J

These two cases were consolidated for trial as the subject matters involved are similar. In originating summons No
24-1027-93, the plaintiff, Tang Kong Meng @ Tan Mang ('Tang'), is seeking inter alia:
(1) a declaration that he is lawfully entitled to the custody and care of his daughter Alvina Tang Mei Kwan
('Alvina');
(2) a declaration that Alvina in receiving religious instructions in or in taking part in any ceremony or act of
worship of the Islamic faith is in contravention of art 12(4) of the Federal Constitution; and
(3) that the first defendant, Zainon bte Md Zain ('Zainon'), and the second defendant, Suhaimi bin Shamsudin
('Suhaimi'), do deliver to Tang, Alvina.

On the other hand, in originating summons No 24-463-94, Suhaimi is seeking a declaration that the registration of
the adoption of Alvina under the Registration of Adoptions Act 1952 ('the Act') is lawful, and the right to custody of
Alvina be granted to Suhaimi. In this originating summons, the defendant named is Tang.

Besides affidavits filed by the relevant parties in both these cases, viva voce evidence was also adduced from the
respective parties including their witnesses. This, as agreed by all parties would enable this court to be in a better
position to evaluate the evidence which is so necessary in a case of this nature, where human feelings of the
parties in particular, and the racial and religious sensitivities of the two major races in our country in [*412]
general are involved; not forgetting the paramount importance of the welfare of a young girl, Alvina.
 Page 4 of 6
TANG KONG MENG v ZAINON BTE MD ZAIN & ANOR

In brief, the facts of this case are as follows. On 3 December 1986, Alvina, a female, was born to one Chong Mo
Mooi ('Mdm Chong') and Tang. They were not married at that material time as Tang was then still married to
another lady. When Alvina was only three months old, according to Mdm Chong, she handed her to Zainon and
Suhaimi to be looked after in a manner as a baby sitter at a charge of RM180 per month. Tang on the other hand
asserted that it was Mdm Chong together with him who found Zainon and Suhaimi to be the baby sitter. After
careful consideration of the evidence, this court is more inclined to believe the latter's version. Soon after this took
place, Tang and Mdm Chong parted ways, but nevertheless each visited Alvina from time to time, and according to
Mdm Chong she continued to pay Suhaimi and Zainon the charges for baby sitting Alvina.

In 1990, Tang went to Singapore to work. According to both Suhaimi and Zainon, Tang did return to visit Alvina in
1991 and on one occasion stayed in Suhaimi and Zainon's house for two to three nights sleeping with his daughter,
Alvina.

Towards the end of 1990, Mdm Chong who had also been visiting Alvina on and off agreed to allow Suhaimi and
Zainon to adopt Alvina, and to convert her to the Islamic faith. With this, both Suhaimi and Zainon made an
application to the Registrar of Adoptions ('Registrar') at Daerah Gombak, Selangor, under the Act to adopt Alvina on
8 December 1990. This application was processed together with a letter of consent to the adoption signed by Mdm
Chong. However, in the application form, though Tang's name was inserted, his particulars such as race, religion,
place of birth and more importantly, his address was left blank. According to DW4, the registrar, she could only
interview Suhaimi and Zainon and Mdm Chong, leaving out Tang since his whereabouts were unknown and not
disclosed. As the necessary ingredients for the adoption under the Act had been fulfilled, and by exercising her
discretion as provided under the said Act to dispense with the consent of any parent, she registered the adoption of
Alvina in the register of adoption on 11 May 1991. Practically on the same day, Alvina was converted to the Islamic
faith and was given the name of Noralvina bte Abdullah.

In November 1991, according to Suhaimi, Tang did come to visit Alvina. The adoption and conversion of Alvina to
Islam was concealed from Tang. Then came June 1992 when Tang took Alvina away from Suhaimi and Zainon to
reside in his sister's house in Menglembu, Perak. By October 1992, Alvina was enrolled into a Chinese school.
Almost around this time, Tang came to understand from his brother in Kuala Lumpur that the police were looking for
him for the alleged kidnapping of Alvina. Upon this, he immediately surrendered himself and Alvina to the
authorities. Since then, Alvina was returned to Suhaimi and Zainon and the series of these cases began. Alvina is
now nine years of age.

Encik Ibrahim, counsel for Suhaimi and Zainon urged this court to uphold the adoption as not only all the necessary
ingredients under s 6 of [*413]
the Act have been fulfilled but, since Alvina was an illegitimate child, Mdm Chong being the natural mother had the
exclusive care and custody over her, which includes consent to the adoption. As Alvina was legally adopted,
Suhaimi and Zainon who consequently became her parents could give the necessary consent for Alvina to be
converted into the Islamic faith.

Encik Karpal Singh, counsel for Tang, however argued that from the evidence of Tang, Mdm Chong left him and
Alvina when Alvina was three months old. By this desertion, Mdm Chong had abandoned her legal right and since
then, Tang had assumed the role of a guardian to Alvina. By this, Mdm Chong had no authority and right to grant
consent for the adoption; any such right lay solely with Tang, and he had not exercised it. Further, Encik Karpal
Singh claimed that not all relevant factors as required under s 6 of the Act had been fulfilled at the time of Alvina's
adoption. Suhaimi and Zainon did not have custody of Alvina nor did they maintain her at the material time of
adoption. Based on the testimony of Tang, he had since 1986 maintained Alvina by paying Suhaimi and Zainon
their charges, and some of these payments are evidenced by vouchers and bankers' receipts of payments to
Zainon. As there was non-compliance of two of the ingredients set out in s 6 of the Act, the registration of this
adoption was invalid, thus extinguishing Suhaimi's and Zainon's consent to have Alvina converted to Islam.
Consequently, Alvina should be returned to Tang for custody.

There was never a dispute in this case that Alvina is an illegitimate child of Mdm Chong and Tang. Being an
illegitimate child, even Encik Karpal Singh has candidly admitted that the putative father has no legal right over the
child under civil law, and the natural mother has the obligation not only to maintain the child, but is also entitled to
exclusive care. (See the cases of R v Brighton (Inhabitants) (1861) 1 B & S 447 and Horner v Horner (1799) 1 Hag
Con 377 which were accepted in our Malaysian courts in T v O [1993] 1 MLJ 168 and Tam Ley Chian v Seah Heng
Lye [1993] 3 MLJ 696.) This must be the state of law for s 27 of the Civil Law Act 1956 provides that:
 Page 5 of 6
TANG KONG MENG v ZAINON BTE MD ZAIN & ANOR

In all cases relating to the custody and control of infants the law to be administered shall be the same as would have been
administered in like cases in England at the date of the coming into force of this Act, regard being had to the religion and
customs of the parties concerned, unless other provision is or shall be made by any written law.
When Mdm Chong had the exclusive care over Alvina, the next issue is whether she did abandon such rights as
alleged by Tang, and the same was picked up by Tang to be Alvina's guardian. After viewing the evidence as a
whole, this court finds that Mdm Chong did not abandon such rights. Though she was separated from Tang, she
continued to visit Alvina throughout, and even gave Suhaimi and Zainon money for Alvina's maintenance right up
to the time of the adoption. Having such right, she can give her consent to the registration of Alvina's adoption.

Consent for adoption under the Act is only one of the many factors to qualify to complete the adoption process
under this Act; there are also [*414]
other qualifications. In order to examine these, it is best to reproduce s 6(1) of the Act:
Where at the date when application for registration is made any child under the age of eighteen years who has never been
married is in the custody of, and is being brought up, maintained and educated by any person, or by two spouses jointly,
as his, her or their own child under any de facto adoption, and has for a period of not less than two years continuously and
immediately before the date of such application been in such custody and has been so brought up, maintained and
educated, the Registrar may, upon the application, in the form in the First Schedule, of such person or spouses, register the
adoption if –

(a) such person or spouses and the child shall appear before the Registrar and shall produce to the Registrar such
evidence either oral or documentary as may satisfy the Registrar that such adoption took place;

(b) the parents or one of the parents, or, if both the parents are dead or if neither of the parents is within West
Malaysia, any guardian of the child shall appear before the Registrar and express consent to the adoption:

Provided that if the Registrar is satisfied that in all the circumstances of the case it is just and equitable and for the
welfare of the child he may dispense with the consent of any parent or custodian of the child or with the appearance
of any parent or custodian who shall have signified his consent by statutory declaration; and

(c) the prescribed fees are paid.

Here, two requirements are singled out for scrutiny by this court in the light of the circumstances of this case. The
first, is the 'custody' factor. Did Suhaimi and Zainon have custody over Alvina for a continuous period of two years
before the registration of the adoption? By custody one could have argued that it was legally with Mdm Chong;
Suhaimi and Zainon had only the physical custody. Mdm Chong's legal custody was derived from the fact that she
is the natural mother of an illegitimate child. With the meaning of custody in a state of uncertainty (see 5(2)
Halsbury's Laws of England para 729 at p 413), as being used in various contexts to connote different purposes,
and the Act or other relevant Malaysian enactments giving no definition to its meaning, this court can only deduce it
to mean physical custody in this case. The whole objective for the enactment of the Act seems to be to cater for de
facto adoption. The word 'de facto' according to the English Oxford Dictionary is defined as 'in fact; whether by right
or not; as if'. By this, a person seeking adoption naturally must have physical custody of the child for a period of
not less than two years. If he is seeking adoption of the child when legal custody is already in his possession, than
the procedure to follow should be under the Adoption Act of 1952, where a more elaborate process is required
culminating in a final sanction by a court of law. From the facts of this case, there can be no doubt that Suhaimi and
Zainon had physical custody of Alvina for more than two years before the application for adoption, and as such,
this court is of the view that they had 'custody' over the said child at the material time as is required by s 6(1) of
the Act. [*415]

The second factor is whether Alvina was 'maintained' by Suhaimi and Zainon before the adoption as is required
under s 6 of the Act. Though both Suhaimi and Zainon denied receiving any maintenance from Mdm Chong and
Tang after the first three months when Alvina was handed to them, it cannot override the explicit testimony of Mdm
Chong who stated that she paid for Alvina's maintenance right up to the time of adoption, and these payments
were made to Suhaimi and Zainon. It must be borne in mind that Mdm Chong was called to testify for Suhaimi and
Zainon and her evidence, if at all biased, should be for Suhaimi and Zainon, but not to their disadvantage. In
addition to this, there are vouchers signed by Zainon acknowledging receipt of money from Tang to maintain Alvina
for a period both before and after the registration of the adoption. Zainon initially attempted to explain that she
received no such sums from Tang, but eventually changed her version to that of not knowing what she was signing
or that these vouchers were blank. Unfortunately, all these added to more blunders and contradictions as she
proceeded in her attempt to conceal the truth.
 Page 6 of 6
TANG KONG MENG v ZAINON BTE MD ZAIN & ANOR

With overwhelming oral and documentary evidence, this court cannot, but find both Suhaimi and Zainon were paid
monetary consideration by Mdm Chong and Tang throughout the period before registration of the adoption for the
maintenance of Alvina. With such payments, Suhaimi and Zainon could not have been considered to have
maintained Alvina as is required under s 6(1) of the Act. Since the requirements under s 6(1) are conjunctive in
nature, failure to satisfy any one condition would result in the registration of the adoption of Alvina to be void ab
initio. In this case, as this court has found that Suhaimi and Zainon did not maintain Alvina during the entire period
of custody they had of her right up to the time of the registration of the adoption, the registration of Alvina's
adoption under the Act is hereby declared null and void. This court accordingly orders that such registration be
deleted from the register of adoption. Consequently, this court hereby dismisses Suhaimi's and Zainon's originating
summons No 24-463-94 with costs.

Without this registration of adoption, Suhaimi and Zainon not being Alvina's parents or guardians could not decide
on the religion of Alvina as she was at the material time of conversion to Islam still under the age of 18 years. This
is provided for under art 12(4) of the Federal Constitution which reads as follows:
For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his parent or
guardian.
By this provision, this court hereby allows Tang's prayer in case No 24-1027-93 to declare that Alvina should not
receive further religious instructions in or to take part in any ceremony or act of worship of the Islamic faith.

Now, what is more fundamental is the issue of custody of Alvina. Mdm Chong, though in law has a better right
being the natural mother of an illegitimate child, did expressly state that Alvina would have a better life [*416]
than her with Suhaimi and Zainon, and for this she consented to their adoption of Alvina. Obviously, she has no
interest, intention and the ability to regain physical possesion of Alvina. Coupled with her background, having two
other illegitimate children by two different men besides Tang and with her limited financial resources, she is
certainly in no position to look after Alvina. As for Tang, he may be in a more stable financial situation, but he works
in Singapore and cannot be physically with Alvina or spend sufficient time with her. It is the strong feeling of this
court that Alvina having gone through these traumas so early in life would require much tender loving care both of a
physical and mental nature. This, in the opinion of this court, Tang is unable to provide, and as evidenced from the
period he had physical custody of Alvina in June to October of 1992, he deposited her with his sister in
Menglembu, Perak to be looked after and no sooner he was off.

In considering the question of custody, the welfare of the child is of paramount importance. With this fundamental
principle in mind, one can only turn to Suhaimi and Zainon who have taken care of Alvina since the age of three
months. They have, as no parties to this case have disputed, doted on Alvina to the extent of even refusing to part
with her. They wanted her to be one of their own children, and this is understandable for they have looked after her
practically since birth. Though some customs and religious practice between Zainon and Suhaimi and that of what
Alvina was born into are different, but within a progressive Malaysia where racial harmony and unity have achieved
significant progress, such differences can be, and should be overlooked to accommodate the future welfare of
Alvina which is of paramount importance. Such being the case, this court with the agreement and consent of Zainon
and Suhaimi appoints them as the court's appointed guardians to Alvina. This power to do so is provided for under
s 24(d) of the Courts of Judicature Act 1964 which reads as follows:
jurisdiction to appoint and control guardians of infants and generally over the person and property of infants;
Attached to this appointment, this court hereby also directs that:
(a) both Tang and Mdm Chong, being the natural father and mother of Alvina, respectively, be each granted
access to Alvina once a month on a weekend commencing Saturday at 10am and returning her before
7pm on a Sunday, with liberty to apply; and,
(b) that this appointment does not provide Suhaimi and Zainon with the right to decide on the religion of Alvina
nor should she take part in any ceremony or act of worship of the Islamic faith until this court orders
otherwise.

Application allowed.
Reported by Azra Azman

End of Document
Case 2:
Case 3:
Date and Time: Sunday, 14 May 2023 7:08:00PM MYT
Job Number: 197046318

Document (1)

1. Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor, [2023] 9 MLJ 30
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 Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor [2023] 9 MLJ 30
Malayan Law Journal Reports · 21 pages

HIGH COURT (KUALA LUMPUR)

COLLIN LAWRENCE SEQUERAH J
CRIMINAL APPLICATION NO WA-44–28–02 OF 2022
18 March 2022

Case Summary
Criminal Procedure — Habeas corpus — Application for — Court ordered sole custody, care, and control of
children to mother of children — Social Welfare Department unlawfully detained children despite court
order — Whether the attempt to prevent reunification between mother and children was done mala fide —
Whether court had power and jurisdiction of the court to hear the application for habeas corpus — Courts
of Judicature Act 1964 — Specific Relief Act 1950 Part 2, Chapter VIII

This was an application for a writ of habeas corpus to issue an order that the applicant’s children (‘the three
children’) be released from the personal custody of the first respondent and/or Jabatan Kebajikan Masyarakat
Perlis (the second respondent) and be returned to the custody of the applicant. The applicant was married to one
Nagahswaran, the biological father of the three children who unilaterally converted the three children to the
Islamic religion. Although the court had previously ordered that the sole custody, care and control of the said
children be given to the applicant, the applicant averred that the first respondent had prevented her from meeting
and taking her children into her care and custody. The applicant had also gone to the Asrama Lelaki Tahfiz al-
Hambra at Kepala Batas, Penang after having been informed that her children were there but was told that her
children were relocated elsewhere. As a result of this, the applicant lodged a police report. Subsequently, the
applicant was informed by the first respondent that the three children were in Perlis. The applicant averred that her
children in Perlis were placed under the custody and care of the first respondent and/or the second respondent.
The issues that arose for determination were: (a) whether the first respondent had been made aware of any order
issued by the High Court regarding custody, care and control of the children, which the first respondent was not a
party to the action; (b) whether the applicant’s application was rendered as the first respondent had no longer had
care or custody of the children; (c) whether the continued detention of the children was lawful; and (d) whether
the court had power and jurisdiction of the court to hear an application for habeas corpus.
Held, allowing the application:

(1) The first respondent affirmed her affidavit in reply that she had no knowledge of any court order in respect
of the sole custody, care and [*31]

control of the children. However, the exchange of Whatsapp communication between the first respondent
and the applicant showed the applicant had forwarded a copy of the court order to the first respondent.
Although the orders were not visible in full and not crystal clear to the eye, it nonetheless showed that a
PDF version of two sealed copies of court orders was forwarded to the first respondent. There was also a
preceding message from the applicant to the first respondent which was a plea from the applicant asking
why the first respondent was refusing to hand over the children to the applicant. Thus, it was clear that the
first respondent had notice of the court order granting the applicant sole custody, care and control of the
three children (see paras 39–40 & 42–44).
(2) According to the affidavit in reply to the first respondent, the children were handed over to the care of the
Jabatan Kebajikan Negeri Perlis on 14 February 2022, albeit allegedly with the consent of the applicant.
This fact notwithstanding, the present application was filed by the applicant on 13 February 2022 which
meant that at the time of filing, the children were still in the custody, care and control of the first
respondent. Applying the latest decision of Lei Meng v Inspektor Wayandiana bin Abdullah & Ors and other
appeals [2022] 3 MLJ 203, the present application was not rendered academic as far as the first
respondent was concerned. Whereas, as far as the second respondent was concerned, the children were
present in the care and custody of the Jabatan Kebajikan (see paras 70–73).
(3) When it comes to the religious upbringing of children, the consent of both parents was required, thus
ruling out unilateral conversion (Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors
and other appeals [2018] 1 MLJ 545). Since there was no evidence that the applicant had so consented in
 Page 2 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

this case, the unilateral conversion of the children by Nagashwaran was, therefore, unlawful. The
contention of the first respondent that there was no issue of unilateral conversion as the children were
converted before the decree nisi did not alter the fact that this was a case of unilateral conversion. Hence,
the refusal to hand over the children to the applicant and the relocation of the children was inextricably
intertwined with the unilateral conversion of the children by Nagashwaran which led to the filing of this
application. The resulting attempt to prevent the reunification between mother and children smack, nay,
reeks of mala fide (see paras 78–82).
(4) At the time this case was heard, the children are 14 years old and 11 years old respectively and,
therefore, are all defined as a ‘child’ under the Child Act 2001 (see para 89).
(5) The applicant had previously obtained an interim ex parte order granting her sole custody, care and
control of the three children. These court [*32]
orders were still in force and not set aside or reversed. It was the applicant who ought to have the sole
custody, care and control of the three children, all of them being minors at the time of hearing. The
relevant court order contained a clause directing the police to do all things necessary to ensure compliance
with the said order, further emphasising its peremptory nature. The fact that matters had to come to reach
this stage served only to portray the lackadaisical, brazen and contemptuous behaviour of the parties
responsible for keeping the children from rightfully reuniting with the applicant. In the premises, the
application for the writ of habeas corpus to be issued as per encl 1 of the notice of motion was allowed and
the children were to be released forthwith into the sole custody, care and control of the applicant (see
paras 93–94 & 96–99).

Ini adalah permohonan writ habeas corpus untuk perintah bahawa anak-anak pemohon (‘tiga anak tersebut’)
dibebaskan daripada jagaan peribadi responden pertama dan/atau Jabatan Kebajikan Masyarakat Perlis
(responden kedua) dan dikembalikan kepada pemohon. Pemohon telah berkahwin dengan Nagahswaran, bapa
kandung kepada tiga orang anak yang secara satu pihak (‘unilateral’) menukar agama tiga anak tersebut kepada
agama Islam. Walaupun mahkamah sebelum ini memerintahkan supaya hak jagaan, penjagaan dan kawalan
terhadap tiga anak tersebut diberikan kepada pemohon, pemohon mendakwa responden pertama telah
menghalangnya daripada bertemu dan membawa anak-anaknya ke dalam jagaannya. Pemohon juga telah pergi ke
Asrama Lelaki Tahfiz al-Hambra di Kepala Batas, Pulau Pinang selepas dimaklumkan bahawa anak-anaknya
berada di sana tetapi diberitahu bahawa anak-anaknya telah dipindahkan ke tempat lain. Akibat daripada itu,
pemohon telah membuat laporan polis. Selepas itu, pemohon dimaklumkan oleh responden pertama bahawa tiga
anak tersebut berada di Perlis. Pemohon menyatakan bahawa anak-anaknya di Perlis diletakkan di bawah jagaan
dan penjagaan responden pertama dan/atau responden kedua. Isu-isu yang timbul untuk penentuan adalah: (a)
sama ada responden pertama telah dimaklumkan tentang sebarang perintah yang dikeluarkan oleh Mahkamah
Tinggi mengenai jagaan, penjagaan dan kawalan tiga anak tersebut, yang mana responden pertama bukanlah
pihak di dalam tindakan itu; (b) sama ada permohonan itu dibuat kerana responden pertama tidak lagi mempunyai
hak penjagaan tiga anak tersebut; (c) sama ada penahanan berterusan tiga anak tersebut adalah sah; dan (d)
sama ada mahkamah mempunyai kuasa untuk mendengar permohonan habeas corpus.

Diputuskan, membenarkan permohonan:

(1) Responden pertama telah menyatakan di dalam afidavit balasannya bahawa beliau tidak mengetahui
sebarang perintah mahkamah berkenaan dengan hak jagaan, penjagaan dan kawalan tiga anak tersebut.
[*33]
Bagaimanapun, komunikasi Whatsapp antara responden pertama dan pemohon menunjukkan pemohon
telah mengemukakan salinan perintah mahkamah kepada responden pertama. Walaupun perintah itu tidak
dapat dilihat sepenuhnya dan tidak jelas, dua salinan perintah mahkamah yang dimeterai dalam bentuk
PDF telah dihantar kepada responden pertama. Terdapat juga mesej terdahulu daripada pemohon kepada
responden pertama menunjukkan pemohon bertanya mengapa responden pertama enggan menyerahkan
tiga anak tersebut kepada pemohon. Oleh itu, adalah jelas bahawa responden pertama mengambil maklum
terdapat notis perintah mahkamah yang memberikan hak jagaan, penjagaan dan kawalan kepada
pemohon (lihat perenggan 39–40 & 42–44).
(2) Menurut afidavit balasan responden pertama, tiga anak tersebut diserahkan untuk jagaan Jabatan
Kebajikan Masyarakat Negeri Perlis pada 14 Februari 2022, walaupun didakwa telah mendapat
persetujuan pemohon. Permohonan ini telah difailkan oleh pemohon pada 13 Februari 2022, bermaksud
pada masa pemfailan, tiga anak tersebut masih dalam jagaan, penjagaan dan kawalan responden
pertama. Dengan mengguna pakai keputusan terbaru Lei Meng v Inspektor Wayandiana bin Abdullah &
 Page 3 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

Ors and other appeals [2022] 3 MLJ 203, permohonan ini tidak akademik untuk responden pertama.
Manakala, bagi responden kedua, tiga anak tersebut berada di dalam jagaan Jabatan Kebajikan
Masyarakat (lihat perenggan 70–73).

(3) Apabila menyentuh soal didikan agama anak-anak, persetujuan kedua-dua ibu bapa diperlukan dan
penukaran unilateral adalah tidak dibenarkan (Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam
Perak & Ors and other appeals [2018] 1 MLJ 545). Oleh kerana tiada bukti bahawa pemohon telah
bersetuju dalam kes ini, penukaran unilateral tiga anak tersebut oleh Nagashwaran adalah menyalahi
undang-undang. Hujahan responden pertama bahawa tidak timbul isu penukaran unilateral kerana tiga
anak tersebut ditukarkan agama sebelum dekri nisi tidak mengubah hakikat bahawa ini adalah kes
penukaran agama secara unilateral. Oleh itu, keengganan untuk menyerahkan tiga anak tersebut kepada
pemohon dan tindakan memindahkan tiga anak tersebut merupakan satu penukaran unilateral oleh
Nagashwaran yang membawa kepada pemfailan permohonan ini. Tindakan tersebut adalah untuk
mengelakkan ibu dan tiga anak tersebut berjumpa dan merupakan satu tindakan mala fide (lihat
perenggan 78–82).
(4) Pada masa kes ini dibicarakan, kanak-kanak itu masing-masing berumur 14 tahun dan 11 tahun dan oleh
itu, kesemuanya ditakrifkan sebagai ‘kanak-kanak’ di bawah Akta Kanak-Kanak 2001 (lihat perenggan 89).
(5) Pemohon sebelum ini memperoleh perintah ex parte interim yang [*34]
memberikan hak jagaan, penjagaan dan kawalan terhadap tiga anak tersebut. Perintah mahkamah ini
masih berkuat kuasa dan tidak diketepikan atau dikembalikan. Pemohon mempunyai hak jagaan,
penjagaan dan kawalan tunggal terhadap tiga anak tersebut yang mana semuanya adalah kanak-kanak di
bawah umur pada masa pendengaran tersebut. Perintah mahkamah yang berkaitan mengandungi klausa
yang mengarahkan polis untuk melakukan semua perkara yang perlu untuk memastikan pematuhan
terhadap perintah tersebut. Perkara yang sampai kepada tindakan ini telah menggambarkan perkara yang
tidak baik, tidak berperikemanusiaan dan menghina mahkamah kerana pihak-pihak yang
bertanggungjawab gagal melaksanakan perintah untuk mengembalikan tiga anak tersebut kepada
pemohon. Oleh itu, permohonan writ habeas corpus dikeluarkan menurut lampiran 1 notis usul dibenarkan
dan tiga anak tersebut dibebaskan dengan serta-merta untuk jagaan dan dibawah kawalan pemohon (lihat
perenggan 93–94 & 96–99).]

Cases referred to

Chua Kian Voon v Menteri Dalam Negeri Malaysia & Ors [2020] 1 MLJ 351; [2020] 1 AMR 1; [2020] 1 CLJ 747,
FC (refd)

Goh Leong Yong v ASP Khairul Fairoz bin Rodzuan & Ors [2021] 5 MLJ 474, FC (refd)

Indira Gandhi a/p Mutho v Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545,
FC (refd)

Kerajaan Malaysia & Ors v Nasharuddin Nasir [2003] MLJU 841, FC (refd)

Lei Meng v Inspektor Wayandiana bin Abdullah & Ors and other appeals [2022] 3 MLJ 203; [2022] 3 CLJ 177,
FC (folld)

Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002] 1 MLJ 321, FC (refd)

Mohd Faizal bin Haris v Timbalan Menteri Dalam Negeri Malaysia & Ors [2006] 1 MLJ 309, FC (refd)

Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] 3 MLJ 759, FC (folld)
Legislation referred to

Courts of Judicature Act 1964 s 25

Criminal Procedure Codes 365

Dangerous Drugs (Special Preventive Measures) Act 1985

Federal Constitution art 5(2)

 Page 4 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

Prevention of Crime Act 1959 s 4(1)(a)

Rules of Court 2012 O 53

Specific Relief Act 1950 Part 2, Chapter VIII

Shamsher Singh Thind (with Srimurugan and Gunamalar Joorindanjin) (SS Thind) for the applicant. [*35]
Mohamad Izzat bin Ghazali (with Aidil Khalid) (Nazrin & Izzat) for the respondent.
Tiu Foo Woei watching brief for the Bar Council Malaysia.
SK Sundram watching brief for the Pertubuhan Hindu Dharma Malaysia.
Raman (with KC Kandiah and Rajo) watching brief for the Malaysian Hindu Lawyers Association.
M Rezza Hassan (with Hamizan Sobree) watching brief for the Majlis Agama Islam, Perlis.
Rajesh Nagarajan watching brief for the Malaysia Hindu Sangam.

Collin Lawrence Sequerah J:

INTRODUCTION

[1]This is an application for a writ of habeas corpus to issue to order that the three children respectively be
released from the personal custody of the first respondent and/or the second respondent and be returned to the
custody of the applicant.

[2]The second respondent, who I was made to understand, was the Jabatan Kebajikan Masyarakat Perlis, was not
represented.
BACKGROUND

[3]The background facts that led to the filing of this application is best appreciated by outlining the respective
narratives of the applicant and the first respondent.
Applicant’s narrative

[4]The three children are the biological children of the applicant. The applicant was married to Nagahswaran a/l
Muniandy (Nagahswaran) who is the biological father of the said children.

[5]On 31 March 2021, the Family Division of the Kuala Lumpur High Court (KLHC) ordered that the sole custody,
care and control of the said children be given to the applicant.

[6]According to the applicant, she came to know that her children were in the custody of the first respondent at the
Hidayah Centre Foundation in Bayan Lepas, Penang.

[7]The applicant averred that the first respondent had prevented her from meeting and taking her children into her
care and custody.
[*36]

[8]On 11 February 2022, at around 4pm, the applicant said she went to the Asrama Lelaki Tahfiz al-Hambra at No
1862 Lorong Seri Gelugor, 13100, Kepala Batas, Penang after having been informed that her children were there
only to be told that her children were re-located elsewhere.

[9]As a result of this, the applicant on 12 February 2022 lodged a police report, Balai Polis Tasek Gelugor in
Butterworth, Penang.

[10]Subsequent to this, the first respondent got in touch with the applicant and informed her that her children were
now in Perlis.
 Page 5 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

[11]The applicant averred that her children in Perlis were placed under the custody and care of the first
respondent and/or the second respondent who at the material time of the hearing of this application, was the
Jabatan Kebajikan Masyarakat Perlis.
The narrative of the first respondent

[12]The first respondent annexed in her affidavit in reply, a chronology of events in respect of her meetings with the
said children.

[13]The chronology also gives an account of Nagahswaran’s journey to the Islamic faith which involved a fortuitous
meeting between Nagahswaran and an old acquaintance of his by the name of Abdul Khadir at a hospital when
Nagahswaran went to collect medication for his children due to Nagahswaran’s involvement in a motorcycle
accident with his children.

[14]According to the first respondent, it was at this meeting that Nagahswaran communicated his desire and
interest in embracing the Islamic faith to Abdul Khadir.

[15]This meeting between the two men resulted in both of them along with the said children in tow going to the
Pejabat Agama Islam Perlis on 7 July 2020 where Nagahswaran and the three children converted to the Islamic
faith.

[16]The first respondent then stated that Abdul Khadir contacted her and requested for her help in providing
motivation and an understanding of Islam to Nagahswaran and the three children.

[17]According to the first respondent, she advised Abdul Khadir to pay attention to the children’s schooling needs
and to assist Nagahswaran in registering for religious courses with a view to understanding the religion.
[*37]

[18]The first respondent further stated that a person known as Brother Ben arranged for the schooling of the three
children. She also stated that she had got the permission of Nagahswaran to send the children to school as well
as arranged for their welfare.

[19]A perusal of the annexures to the affidavit of the first respondent, namely, ‘NNA-2(a)’, ‘NNA-2(b)’ and ‘NNA-
2(c)’, show that these are religious schools known as Sekolah Menengah Al-lslah, Sungai Petani, Kedah, Madrasah
Al-Quran Wal Arabiyyah (Mawar), Kepala Batas, Penang and Pusat Pendidikan Al-Ikram, Tasek Gelugor, Penang
respectively.

[20]The first respondent stated that she communicated with the applicant initially through Facebook Messenger and
later through Whatsapp and that the understanding between them from the beginning was that the children would
be reunited with the applicant.

[21]The first respondent therefore, asserted that the allegation widely disseminated through the media levelled
against her by the applicant that she was hiding the children were unfounded.

[22]She lodged a police report regarding this. She also claimed that the children were handed over to the Jabatan
Kebajikan Masyarakat Perlis on 14 February 2022 with the agreement of the applicant. Since that date, the said
children were no longer in her care and custody.

[23]The first respondent also claimed that she had never been made aware of any order issued by the KLHC
regarding custody, care and control of the children as she was not a party to the action.
 Page 6 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

[24]The first respondent stated that all matters regarding embracing the Islamic religion on the part of the children
were carried out by Nagahswaran and her only role was in providing information concerning the related institutions
or agencies.

[25]The first respondent finally stated that the application against her was rendered academic as she no longer had
care or custody of the children.
THE REMEDY OF HABEAS CORPUS

[26]The original manner in which the writ of habeas corpus was described was habeas corpus ad subjiciendum a
Latin term meaning ‘that you have the body to submit to’.
[*38]

[27]The exact historical origins of the writ are shrouded in the mists of antiquity, some quarters holding the belief
that it had its foundations in the Magna Carta.

[28]The Magna Carta was a Charter signed by King John of England in 1215 after having been confronted by the
barons at Runnymede, which amongst other things, entrenched a subject right to be free from arbitrary
imprisonment or seizure of his rights or possessions except by the lawful judgement of his equals or by the law of
the land.

[29]More recent literature, however, holds the view that the modern form of the writ did not in fact owe its existence
to the Magna Carta.

[30]This notwithstanding, what is clear now is that the writ is understood as being a remedy for a person unlawfully
detained by the authorities.

[31]The court’s power and jurisdiction in this country to entertain applications for habeas corpus emanates from the
inherent powers granted to the superior courts under the Schedule to the Courts of Judicature Act 1964 (Act 91)
and the provisions of Chapter VIII of Part 2 of the Specific Relief Act 1950 (Act 137).

[32]The relevant procedure relating to judicial review is governed by O 53 of the Rules of Court 2012.

[33]The Federal Court speaking through Zawawi Salleh FCJ in Chua Kian Voon v Menteri Dalam Negeri Malaysia
& Ors [2020] 1 MLJ 351; [2020] 1 AMR 1; [2020] 1 CLJ 747 provides a concise and clear explanation of the nature
of the remedy as follows:

... The term habeas corpus refers most commonly to a specific writ known in full as ‘habeas corpus ad subjiciendum’, a
prerogative writ ordering that a prisoner be brought to the court so that it can be determined whether or not the prisoner is
being imprisoned lawfully. Put simply, a writ of habeas corpus is a challenge to the legality of a prisoner’s detention. The
words ‘habeas corpus’ is a Latin law term. Its literal English translation is: ‘you have the body’.

The writ of habeas corpus, described by Blackstone as the ‘great and efficacious writ, in all manner of illegal confinement’
(see: William Blackstone’s Commentaries on the Law of England (1st Ed, 1765, Vol 3) at p 131), functions as a judicial
remedy aimed at preventing the arbitrary use of Executive power to imprison individuals unlawfully. The use of habeas
corpus has roots in English common law dating back to the fourteenth century. It was first expressed in the Magna Carta of
1215, which stated, ‘No free man shall be seized, or imprisoned, or disseized, or outlawed, or exiled, or injured in any way,
nor we will enter on him or send against him except by the lawful judgment of his peers, or by the law of the land’.

[*39]

[34]Although commonly resorted to in this country as a remedy for those detained under the law relating to
 Page 7 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

preventive detention such as the Prevention of Crime Act 1959 and the Dangerous Drugs (Special Preventive
Measures) Act 1985, the application for the writ to issue is no less relevant and applicable here as what is alleged
by the applicant is the unlawful detention of her three children by the First and second respondent.
ANALYSIS AND DECISION

[35]This case had generated much public interest, mainly due to the contention that the applicant’s three children
were unilaterally converted to the Islamic religion by their biological father.

[36]This fact was further evidenced by the presence of learned counsels holding a watching brief for the Malaysian
Bar Council (Majlis Peguam Malaysia), Malaysia Hindu Sangam, Pertubuhan Hindu Dharma Malaysia, Malaysian
Hindu Lawyers Association and the Majlis Agama Islam Perlis respectively.

[37]The case for the applicant portrayed the picture of a beleaguered mother separated from her children and
being given the run around by persons or entities having custody, care of control of the children in her desperate
attempt to meet up with and eventually reconcile with them.

[38]Notwithstanding all of this, it must not be lost sight of the fact that the current application is focused only in
respect of whether the continued detention of the children by all or any of the parties concerned, is lawful or not.
Did the first respondent have knowledge of the court orders granting sole custody, car and control of the children
to the applicant?

[39]The first respondent affirmed her affidavit in reply on 20 February 2022 where she asserted that she had no
knowledge of any court order in respect of the sole custody, care and control of the children.

[40]However, the exchange of Whatsapp communication between the first respondent and the applicant exhibited
as P3 in the applicant’s affidavit affirmed on 13 February 2022 show that on 21 January 2022, the applicant had
forwarded a copy of the court order to the first respondent.

[41]In this regard there are two court orders issued on 31 March 2021 and an earlier interim ex parte order from the
same court dated 20 December 2019 granting sole custody, care and control of the children to the applicant.
[*40]

[42]Although the orders in P3 are not visible in full and not crystal clear to the eye, it nonetheless shows that a PDF
version of two sealed copies of court orders were forwarded to the first respondent.

[43]The immediately preceding message from the applicant to the first respondent reads ‘Why u don’t want serah
my children?’ which quite obviously is a plea from the applicant asking why the first respondent is refusing to hand
over the children to her.

[44]It is thus clear that the first respondent had notice of the court order granting sole custody, care and control of
the three children to the applicant.
Is the application academic as far as the first respondent is concerned?

[45]Learned counsel for the first respondent also raised the contention that because the children were not in her
custody at the time this application was filed, it was rendered academic as far as she was concerned.

[46]The case of Goh Leong Yong v ASP Khairul Fairoz bin Rodzuan & Ors [2021] 5 MLJ 474 was cited in support.

[47]That decision overruled the Federal Court decision in Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis
Negara [2002] 1 MLJ 321 while reaffirming the decision of the Federal Court in Mohd Faizal bin Haris v Timbalan
Menteri Dalam Negeri Malaysia & Ors [2006] 1 MLJ 309 and Kerajaan Malaysia & Ors v Nasharuddin Nasir [2003]
MLJU 841 which held that an application for a writ of habeas corpus had to be directed towards the current
detention order.
 Page 8 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

[48]However, the latest decision from the apex court has signaled a paradigm shift away from the position as
expressed in Goh Leong Yong.

[49]In the Federal Court case of Lei Meng v Inspektor Wayandiana bin Abdullah & Ors and other appeals [2022] 3
MLJ 203; [2022] 3 CLJ 177 Criminal Appeal Nos 05(HC)-38–03 of 2021(W), 05(HC)-41–03 of 2021(W), 05(HC)-43–
03 of 2021(W), 05(HC)-42–03 of 2021(W), 05(HC)-44–03 of 2021(W), 05(HC)-45–03 of 2021(W), 05(HC)-106–06
of 2021(W), 05(HC)-107–06 of 2021(W), 05(HC)-108–06 of 2021(W), 05(HC)-109–06 of 2021(W), 05(HC)-110–06
of 2021(W), 05(HC)-111–06 of 2021(W), 05(HC)-112–06 of 2021(W), 05(HC)-113–06 of 2021(W), 05(HC)-114–06
of 2021(W), 05(HC)-115–06 of 2021(W), 05(HC)-116–06 of 2021(W), 05(HC)-117–06 of 2021(W), 05(HC)-118–06
of 2021(W), 05(HC)-119–06 of 2021(W), 05(HC)-120–06 of 2021(W), 05(HC)-121–06 of 2021(W), 05(HC)-122–06
of 2021(W), 05(HC)-123–06 of 2021(W) and 05(HC)-124–06 of 2021(W), the apex court heard a series of
cumulative [*41]
appeals relating to preventive detention under the Prevention of Crimes Ordinance 1959 (‘the POCA’) brought by all
the appellants, who were detainees at the time of the filing of their applications for habeas corpus and other
declaratory relief.

[50]At the time of hearing the appeals, the periods of detention had since expired, although all the appellants were
in detention at the time of the disposal of their appeals before the High Court.

[51]The first set of appeals dealt with six cases, while the second set of appeals dealt with 19 cases.

[52]In both sets of appeals, the appellants were detained under POCA in relation to ‘the organization and
implementation of online gambling’ which was stated to be in contravention of the provisions of POCA.

[53]The main ground of challenge in both sets of appeals were similar, namely that online gambling does not fall
within the scope of POCA and secondly that POCA does not apply to foreign nationals.

[54]In the first set of six appeals, the additional issue of the applications being academic, as the relevant period of
remand and detention under s 4(1)(a) of the POCA having expired, was also raised.

[55]With regard to the nineteen appeals, the issue was whether the appeals against the order of the High Court
judge was academic at the point in time when it was heard on appeal because the period of detention of six months
had lapsed.

[56]The leading judgment in the Federal Court in all these appeals was delivered by Nallini Pathmanathan FCJ who
in an illuminating analysis held that the remedy of habeas corpus is predicated on art 5(2) of the Federal
Constitution which reads:

Article 5

(1) No person shall be deprived of his life or personal liberty save in accordance with law.

(2) Where complaint is made to a High court or any judge thereof that a person is being unlawfully detained the court
shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced
before the court and release him.

[*42]

[57]The Federal Court said that although the jurisdiction to issue the remedy of habeas corpus or release is
conferred by the additional powers of the High Court specified in Schedule 1, s 25 of the Courts of Judicature Act
 Page 9 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

1964 (‘the CJA’) and s 365 of the Criminal Procedure Code, it is art 5(2) of the Federal Constitution that confers the
foundational constitutional jurisdiction of review and remedy, namely the entitlement to review the legality of the
detention and the remedy of release.

[58]The Federal Court also stated that the English common law remedy of habeas corpus should not be invoked in
support of an application for release from such detention, as we in this country have art 5(2) and the CJA.

[59]The underlying rationale for adopting this position was expressed as follows:

[84] If indeed the remedy afforded art 5(2) of the FC is refused on the basis that the detention order pursuant to which the
application was made, has been replaced with some other detention order, or that the detainee has since been discharged,
the scheme of Part II of the FC, more particularly art 5(2) of the FC, would be frustrated, as a person could be detained for
a length of time unlawfully, and released just prior to the hearing of his application for habeas corpus, notwithstanding that
he filed it during the period that he was detained, as explained earlier on.

[60]The Federal Court then went on to state the proper construction to be afforded to art 5(2) in the context of a
detention under the POCA as follows:

[87] The full and proper construction to be afforded to art 5(2) of the FC is that the court looks at the application as if it were
a s 4(1) of the POCA detention, and if such detention is tainted, then it follows that any other detention ensuing from it,
must be similarly tainted, because they both stem from the same series of transactions under the same legislation, namely
POCA.

The fact that the initial remand and detention was tainted, cannot be ignored or swept under the carpet, allowing for
continued detention under separate but related provisions of POCA.

[61]The Federal Court then went on to state the summary of their findings with regard to whether the appeals were
academic or not as follows:

[136] We rejected these arguments and in so doing, reaffirmed Zaidi bin Kanapiah as representing the correct view on the
subject. Without narrowing what has been reasoned at length above, we summarise our legal findings as follows:

(a) the High Court’s constitutional duty to assess the legality of any detention — especially preventive detention —
starts from the date of filing of the habeas corpus application assuming that the detainee was, at the time he filed
it, under detention. In this assessment, the court must scrutinise the legality of the detention from the lens of the
detenu; [*43]

(b) the jurisdiction of the High Court or a High Court judge is not determined by the fact of physical detention but the
legality of the detention itself assessed from the date of the filing of the application for habeas corpus;

(c) viewed in this way and giving art 5(2) of the FC its fullest effect, the fact that the detenu was, subsequent to the
date of the filing of his application, preventively detained by some other authority or under some other provision,
legislation or order does not vitiate his right to judicial scrutiny over the legality of his initial detention;

(d) similarly, the fact that the detenu is released after the date the application is filed, but before the return or hearing
date, does not affect the jurisdiction of the court to review the legality of the detention which is under challenge;
and
(e) finally the fact that the detenu is under detention during the hearing but released after an appeal to the Federal
Court is filed, does not render the application ‘academic’. The live issue before the Federal Court is no longer
 Page 10 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

simply the detention but the correctness of the decision of the High Court as assessed from the lens of the High
Court judge.

[62]In respect of the decision in Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] 3
MLJ 759, the Federal Court had this to say:

The academic point in Zaidi bin Kanapiah

[60] In Zaidi bin Kanapiah, the Chief Justice Tengku Maimun binti Tuan Mat, whose judgement on this point represents the
view of the Court as a whole, held conclusively that the case of Ezam represents the correct position in law and ought to be
followed rather than Faizal bin Haris, Rajanderan a/l Letchumanan v Timbalan Menteri dalam Negeri Malaysia & Ors
[2018] Supp MLJ 393 (‘Rajanderan’) and other cases such as Kerajaan Malaysia & Ors v Nasharuddin Nasir [2003] MLJU
841 (‘Nasharuddin Nasir’) and Muhammad Jailani bin Kasim v Timbalan Menteri Keselamatan Dalam Negeri, Malaysia &
Ors [2006] 6 MLJ 40. The Chief Justice went on to specifically hold that any other related decisions which departed from
Ezam are no longer good law, and cannot be relied upon for the academic point raised by the respondents. This aspect of
the decision is therefore binding on all lower courts in accordance with the doctrine of stare decisis.

[63]In doing so the Federal Court also made it abundantly clear that the case of Goh Leong Yong v ASP Khairul
Fairoz bin Rodzuan & Ors [2021] 5 MLJ 474 ought not to be followed.

[64]This court is of course bound by the latest pronouncement of the Federal Court in the above cited decision.
[*44]

[65]Reverting to the case at hand, an examination of the averments in the affidavit in support of the applicant will
show that on 11 February 2022, she went to the Asrama Lelaki Tahfiz al-Hambra at No 1862, Lorong Seri Gelugor
2, Taman Seri Gelugor, 13100, Kepala Batas, Penang after having being given to understand that her children
were located there only to be told upon arrival that they had been taken elsewhere.

[67]The applicant consequently lodged a police report regarding this at the Tasek Gelugor Police Station at
Butterworth, Tasek Gelugor/000425/22, exhibited as ‘P4’ in her affidavit in support.

[68]In P4, the applicant also stated that upon arrival at the said Asrama Lelaki Tahfiz al-Hambra, she was informed
that her children were only relocated the previous day after which the applicant tried to call the first respondent at
the mobile number 012–5503272 but there was no answer initially.

[69]The applicant stated that it was only after she went to the police station that she received a call from the first
respondent asking her to come by herself to Perlis the next day ie 12 February 2022.

[70]Perusing the affidavit in reply of the first respondent, it will be seen that she had averred that the children were
handed over to the care of the Jabatan Kebajikan Negeri Perlis on 14 February 2022, albeit allegedly with the
consent of the applicant.

[71]This fact notwithstanding, the present application was filed by the applicant on 13 February 2022 which means
that at the time of filing, the children were still in the custody, care and control of the first respondent.

[72]Applying the latest decision of the apex court cited above, the present application is not therefore rendered
academic as far as the first respondent is concerned.
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Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

[73]As far as the second respondent is concerned, learned counsel for the applicant confirmed that the children
were presently in the care and custody of the Jabatan Kebajikan or Welfare Department.
The unilateral conversion of the children

[74]Although the matter of the unilateral conversion of the children is not directly in issue in this application, it is
best not to mimic Nelson at the Battle of Copenhagen (where the hero of Trafalgar put the telescope to his blind
eye, [*45]
suffered during the siege at Calvi, and pretended not to see the signal ordering a withdrawal of the fleet) and ignore
the fact that it is undoubtedly connected to the applicant’s hitherto futile attempts to locate and reunite with her
children, which eventually led to the filing of the present application.

[75]In legal parlance of the common law variety, the reference to Lord Nelson’s actions above is referred to as
‘willful blindness’ while the Americans call it ‘contrived ignorance’.

[76]The point must therefore be made that the issue regarding the unilateral conversion of the three children to the
Islamic religion has been resoundingly settled by the decision of the apex court in Indira Gandhi a/p Mutho v
Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545, the facts of which are not
dissimilar to the instant case.

[77]In Indira Gandhi, of the three questions of law referred to the Federal Court, only question No 3 is of relevance.
So, as not to dilute the reasoning of the leading judgment by Zainun Ali FCJ on this point, it is best that it is set out
verbatim hereunder as follows:

Question 3

[142] The third question in these appeals reads as follows:

Whether the mother and the father (if both are still surviving) of a child of a civil marriage must consent before a
Certificate of Conversion to Islam can be issued in respect of that child ?

[148] The central contention in relation to this question involves around the interpretation of art 12(4) of the Federal
Constitution. The English version of art 12(3) and (4) read as follows:

Article 12(4) of the Federal Constitution

12 Right in respect of education

(1) …

(2) …

(3) No person shall be required to receive instruction in or to take part in any ceremony or act of worship of a
religion other than his own.
(4) For the purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided by his
parent or guardian. (Emphasis added)
 Page 12 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

[149] The pertinent provision in the Eleventh Schedule, read together with art 160(1), provides that in interpreting the
Constitution:
[*46]

Construction of singular or plural —

words in the singular include the plural, and words in the plural include to singular.

[150] Applying the guide to interpretation to art 12(4), the position is fairly clear : the singular word ‘parent’ includes the
plural ‘parents’. The religion of the minor child is to be decided by his ‘parent’ or ‘parents’ as the case may be.

[151] However, the formulation in art 12(4) is differently worded in the national language translation of the Federal
Constitution, which reads as follows:

(4) Bagi maksud Fasal (3) agama seseorang yang di bawah umur lapan belas tahun hendaklah ditetapkan oleh ibu
atau bapanya atau penjaganya. (Emphasis added)

[152] The phrase ‘ibu atau bapa’ or ‘his father or mother’ denotes a parent in the singular, and appears to preclude an
interpretation requiring the religion to be determined by both father and mother. In light of the apparent inconsistency
between the Bahasa Malaysia and English version of art 12(4), it was contended that the former is authoritative and
prevails over the latter pursuant to art 160B of the Constitution. Article 160B states:

160B. Authoritative text Where this Constitution has been translated into the national language, the Yang di-Pertuan
Agong may prescribe such national language text to be authoritative, and thereafter if there is any conflict or
disagreeing between such national language text and the English language text of this Constitution, the national
language text shall prevail over the English language text. (Emphasis added)

[153] The High Court held that since the requisite prescription of the national language version under art 160B above has
not been effected, the authoritative or official text is the English version. The learned JC observed that the Senior Federal
Counsel had not submitted otherwise. In the present appeals, despite the learned State Legal Adviser’s reliance on art
160B, no evidence of the necessary prescription was adduced by either of the respondents. In the circumstances, we will
proceed on the basis that the English version to be authoritative.

[154] Much emphasis has been placed on the literal meaning of the singular noun ‘parent’ in art 12(4). The interpretive
guide in the Eleventh Schedule aside, it must be recalled that the provisions of the Constitution are not to be interpreted
literally or pedantically. The principles of constitutional interpretation were lucidly summarised by Raja Azlan Shah LP in
Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi bin Syed Idrus [1981] 1 MLJ 29 at p 32:

In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is
normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its
provision must be construed broadly and not in a pedantic way — ‘with less rigidity and more generosity than other
Acts’ (see Minister of Home Affairs v Fisher [1979] 3 All ER 21). A constitution is sui generis, calling for its own
principles of interpretation, suitable to its character, but without necessarily [*47]
accepting the ordinary rules and presumptions of statutory interpretation. (Emphasis added.)
 Page 13 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

[155] This is particularly so in respect of art 12(4), which falls under the fundamental liberties section in Part II of the
Constitution. As was held in Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301:

… The Constitution is a document sui generis governed by interpretive principles of its own. In the forefront of these is
the principle that its provisions should be interpreted generously and liberally. On no account should a literal
construction be placed on its language, particularly upon those provisions that guarantee to individuals the protection
of fundamental rights. In our view, it is the duty of a court to adopt a prismatic approach when interpreting the
fundamental rights guaranteed under Part II of the Constitution. When light passes through a prism it reveals its
constituent colours. In the same way, the prismatic interpretive approach will reveal to the court the rights submerged
in the concepts employed by the several provisions under Part II.

[163] What can be discerned from the above is that, the law has come a long way from the days when one parent’s claim
could be considered superior to the other. Where the child’s religion or religious upbringing is in issue, the paramount
consideration for the court is to safeguard the welfare of the child, having regard to all the circumstances of the case. In so
doing the court does not pass judgment on the tenets of either parent’s belief. Conversion to another religion is a
momentous decision affecting the life of a child, imposing on him a new and different set of personal laws. Where a
decision of such significance as the conversion of a child is made, it is undoubtedly in the best interests of the child that
the consent of both parents must be sought. The contrary approach of allowing the child to be converted on the consent of
only one parent would give rise to practical conundrums. The learned JC has described one such milieu at [35]):

If by ‘parent’ is meant either parent then we would have a situation where one day the converted parent converts the
child to his religion and the next day the other parent realizing this would convert the child back to her religion. The
same can then be repeated ad nauseam.

[164] Such a scenario would undoubtedly be detrimental to the welfare of the child. Since a literal construction of art 12(4)
would give rise to consequences which the legislative could not possibly have intended, the srticle should not be construed
literally (Sukma Darmawan at p 247). A purposive reading of srt 12(4) that promotes the welfare of the child and is
consistent with good sense would require the consent of both parents (if both are living) for the conversion of a minor child.

[165] The need for such a reading is more starkly apparent in factual circumstances such as the present case. In Teh Eng
Kim v Yew Peng Siong [1977] 1 MLJ 234, Raja Azlan Shah FJ (as His Royal Highness then was), explained the
considerations arising when custody has been given to one parent (at 240):

Any solution to the problem presented here in which custody is given jointly to [*48]
both parents as suggested by the Appellant exhibits an error in the application of principle …

In the present case I do not think such an order would be appropriate. The children and the father are living in
different jurisdictions. Since the parent who has custody has control, he or she is put in a position to become the
dominant influence, fixing the daily life style of the children. An absent and inactive parent, whatever his legal
relationship to the children may be, cannot have such influence. He or she cannot do it by remote control.

In a situation such as the present, when one parent has been given custody, and it is working well, it is a very wrong
thing for this court to make an order which will interfere with the life style of the new family unit. Of course, one
sympathise with the father, but it is one of those things which he must face when the marriage breaks up.’ (Emphasis
added)

[166] In the present appeals, custody of the three children was granted to the appellant by the High Court. Having
exhausted all avenues to challenge the custody order, the appellant’s husband willfully disobeyed it and refused to hand
 Page 14 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

over the youngest child, Prasana Diksa, to the appellant. He was found guilty of contempt in subsequent committal
proceedings, and his appeal was struck out. A warrant of committal has been issued in respect of the husband. The
Federal Court has held that having submitted to the jurisdiction of the civil court, it is not open for the husband to ignore the
custody order issued by the civil court (see Indira Gandhi a/p Mutho v Ketua Polis Negara [2016] 3 MLJ 141 at [31]–[32]).

[167] Since custody of the children has been granted to the appellant, it is the appellant who exercises the dominant
influence in their lives. To allow the other spouse to unilaterally convert the children without the consent of the appellant
would amount to a serious interference with the lifestyle of the new family unit which, following Teh Eng Kim, would be a
‘very wrong thing’. (Emphasis added.)

[78]It has been, therefore, authoritatively determined by the apex court that when it comes to the religious
upbringing of children, the consent of both parents is required, thus ruling out unilateral conversion.

[79]Since there is no evidence that the applicant had so consented in this case, the unilateral conversion of the
children by Nagashwaran is, therefore, unlawful.

[80]The contention of learned counsel for the first respondent that there was no issue of unilateral conversion as
the children were converted before the decree nisi does not, as if by some miracle, alter the fact that this was a
case of unilateral conversion.
[*49]

[81]As alluded to earlier, the refusal to hand over the children to the applicant and the relocation of the children is
inextricably intertwined with the unilateral conversion of the children by Nagashwaran which led to the filing of this
application.

[82]The resulting attempt to prevent the reunification between mother and children smack, nay, reeks of mala fide.

[83]Having said this, the issue of the unilateral conversion of the children must be pursued before a different forum
and not before this court.
The issue before this court

[84]As far as this court is concerned, it only behoves to consider whether the continued separation of the children
from their mother, the applicant, by the actions of persons and/or entities responsible is lawful or not.

[85]This unhappy episode nonetheless had its genesis with must have been a happy union of marital bliss between
the applicant and Nagahswaran a/l Muniandy.

[86]This union produced three lovely children.

[87]They must have enjoyed a carefree and playful formative years as all children are justly deserving off.
However, as sometimes unhappily happens, the marital ship undergoes the turbulence and instability of stormy
waters.

[88]This sometimes translates into the exchange of harsh words and in some cases, physical violence.

[89]When this happens, it is inevitably the poor children who are caught up in the cross-fire that ensues. And so, it
was, and unhappily so, for these three children.
 Page 15 of 15
Loh Siew Hong v Nazirah Nanthakumar bt Abdullah & Anor

[90]At the time this case was heard, two of the children were 14 years old and 11 years old respectively and,
therefore, are all defined as a ‘child’ under the Child Act 2001 (Act 611).

[91]The breakdown of the marriage between the applicant and Nagahswaran resulted in the battle lines being
drawn between them which eventually manifested itself in the form of a Divorce Petition in the Family Division in the
Kuala Lumpur High Court.
[*50]

[92]The result of this was a court order issued on 31 March 2021 granting, inter alia, the applicant sole
guardianship, custody, care and control of the three children while Nagahswaran was given supervised access
with conditions.

[93]Prior to this, the applicant had obtained an interim ex parte order from the same court dated 20 December 2019
granting her sole custody, care and control of the three children.

[94]These court orders are still in force and not set aside or reversed. It is clear then as night follows the day, that it
is the applicant who ought to have the sole custody, care and control of the three children, all of them being
minors at the time of hearing.

[95]It is to be emphasised here that court orders are not to be treated with impunity upon pain of contempt.

[96]It is also worth making the point that the relevant court order issued by the KLHC Division of the Family Court
contained a clause directing the police to do all things necessary to ensure compliance with the said order, further
emphasising its peremptory nature.

[97]Given the above, the fact that matters have to come to reach this stage serves only to portray the lackadaisical,
brazen and contemptuous behavior of the parties responsible for keeping the children from rightfully reuniting with
the applicant.

[98]In the premises, I therefore, allow the application for the writ of habeas corpus to be issued as per encl 1 of the
notice of motion.

[99]I order that the three children, are to be released forthwith into the sole custody, care and control of the
applicant.
Application allowed.
Reported by K Selvaraju

End of Document