PUTRAJAYA: The Federal Court today dismissed an appeal to quash a habeas corpus order granted by a High Court in Kuantan to an Orang Asli father after his 10-year-old daughter was kidnapped by his ex-wife last year.
Justice Datuk Harmindar Singh Dhaliwal, who led a three-men bench and read out the ruling, said they came to an unanimous decision after hearing submissions from counsels who stood for the respondent and the appellant.
The appeal was filed by the ex-wife after the High Court issued a habeas corpus order for the girl to be returned to her father on May 25 last year.
"The evidence before the High Court and us suggests that the respondent (the father) had de-facto custody of the child for four years until the child was taken away by the appellant (the ex-wife).
"In the circumstances, we find that it was improper for the appellant to take the child without gaining court order for custody.
"Therefore, we view the High Court was correct in ordering the habeas corpus.
"In this event, this appeal is therefore dismissed," he said.
Harmindar, who sat with Justices Datuk Abdul Karim Abdul Jalil and Datuk Abu Bakar Jais, also made two observations.
"Firstly, our position will not affect custody proceedings which are pending in the High Court.
"Secondly, the names of parties, especially the child, should not be published by any party," he added.
The father was represented by counsel Datuk Bastian Pius Vendargon while Mohamed Haniff Khatri Abdulla stood for the appellant.
The on-going custody battle between the non-Muslim father and ex-wife, who had converted to Islam, over their daughter came to light on social media last year.
They married according to Orang Asli customary rites sometime in 2012 and ended in 2018.
A viral video showed the girl crying after the High Court ordered her to be returned to her father.
Earlier, the apex court rejected Haniff's application to adduce fresh evidence as his client's previous counsel had failed to reply to the ex-husband's application for habeas corpus.
Haniff said the incompetency of the previous counsel to put in existing evidence had resulted in his client being deprived of a fair trial.
He also told the court that the girl was an illegitimate child as her birth certificate was registered under Section 13 of the Births and Deaths Registration Act.
Given the status of the girl, Haniff said the mother had higher and better rights to custody and questioned how could the habeas corpus order be given to the father.
The court heard two versions of the situation. The father claimed that his ex-wife had in 2018, left their daughter with him in the Orang Asli settlement, but appeared four years later to claim the girl.
The appellant, however, said she and her child had left their settlement in the same year to live with her maternal grandmother until May 2019 before the father requested for the girl to attend a relative's funeral but was never returned to the mother for four years.
Vendargon argued that it was undisputed that in 2018, the mother had abandoned the marriage and their aboriginal home, leaving the child to be taken care of by the father with the help of relatives and community, due to their communal nature.
Despite the circumstances, the child's education was not neglected as the court was shown records of her being sent to kindergarten until primary school.
"The care and custody can be rightly pointed out as de-facto. The undisputed fact here is the de-facto custody was with the father.
"What the mother did was after four years, she decided to apply for the custody of the child at the Syariah court, reason being she had converted to Islam.
"Any dispute should be placed at the appropriate court. Instead, she took matters into her own hands and snatched the child when she was leaving school."