Can a child of foreign citizenship be ordered to be placed under the sole custody of her biological father who is also a foreign citizen?

DR JOHNY A/L KULADAIVELU V AGILAANDESWARI VASUTHEVAN [2020] 1 LNS 41

• Dr Johny A/L Kuladaivelu (“Dr Johny”) married Agilaandeswari Vasuthevan (“Agila”) in India and the marriage was registered in India but not in Malaysia.

• The first child of the marriage, Yana d/o Johny (“Yana”) was born in India and is an Indian citizen and holds an Indian birth certificate and passport.

• Agila left the matrimonial home in India together with Yana and returned to Malaysia.

• Dr Johny contended that Agila’s father influenced her to leave India and return to Malaysia with Yana.

• Agile denied this and contended that she could no longer bear Dr Johny’s physical abuse – he had hit and kicked her even though he knew she was pregnant with their second child.

• She had sought help from the police and Women’s Aid in India and with the assistance of her family, she and Yana returned to Malaysia.

• Dr Johny denies Agila’s claims of physical abuse.

• The second child of the marriage, Yesshna, was born in Malaysia.

• Agila did not inform Dr Johny of Yesshna’s birth nor was he named as the father of Yesshna on her birth certificate because the marriage was not registered in Malaysia and the National Registration Department required Dr Johny’s attendance and his signature in order for his name and details to be included on Yesshna’s birth certificate.

• Dr Johny then filed a case in Court seeking an order that he be given joint custody of the children with Yana surrendered to him and to direct Agila to return to India immediately.

• While waiting for the case to be heard, Dr Johny and Agila had entered into an interim consent judgment where Agila had sole custody of both children with interim access and maintenance of both children.

• The High Court dismissed Dr Johny’s application.

• The Court found that Yana was born in India and is an Indian citizen. She was brought to Malaysia by her mother, Agila and had lived with her mother in Malaysia since then.

• To minimise the disruption to the children’s lives (who are both under the ages of 7), the Court was of the view that it is best to maintain the status quo as regards to the continuity of the children’s care who was under the sole custody of their mother.

• Additionally, there is a rebuttable presumption in section 88(3) of the Law Reform (Marriage and Divorce) Act 1976 that it is for the good of a child below the ages of 7 to be with their mother and it is settled law that in order to rebut the presumption, the father must show that the mother is an unfit mother, which Dr Johny had not proven.