Delay delay delay - Part 1

As mentioned in my previous post, I filed an application to vary my ex-wife's visitation rights. The application was filed on grounds that

1. my ex-wife had totally disregarded two court orders issued in the months of November and December 2010 to return the children to me; and
2. the dispicable acts that she committed on the children during that time.

The Syariah High Court had fixed a mention date on 10 November 2011 for me to file in my Affidavit Balasan. The affidavit have been read prior to that and was to be served on my ex-wife's legal consel on the mention date. For reasons beyond my knowledge, my Syariah Lawyer's legal assistant failed to turn up in Court that morning.

That being the case, I told the Honourable Judge that the affidavit will be sent to my ex-wife's legal counsel. My ex-wife's legal counsel took advantage of it by asking for another mention date to confirm receipt of the affidavit. Much to my disgust, the next mention date was set for January 2012. Two months to confirm receipt of affidavit???

Fifth attempt to resume hearing

As mention in my previous post (titled "The answer"), my ex-wife had filed an application at the Mahkamah Rendah Syariah Petaling Jaya to declare that my previous marriage with her null and void. This was made on grounds that she had purportedly only recently became aware that her parents only got married 1 year 3 months after she was born (in other words she is claiming that she is an illegitimate child).

Subsequent to that, in June 2011 she filed an application at the Mahkamah Tinggi Syariah Selangor di Shah Alam to suspend all other proceedings between me and her at both the Syariah High Court in Shah Alam and the Syariah Lower Court in Shah Alam until her application at the Mahkamah Rendah Syariah Petaling Jaya is decided. Her argument is that should the case at the Mahkamah Rendah Syariah Petaling Jaya is decided in her favour, all the other existing proceedings would be moot. If there was no marriage, hence there would be no matrimoial assets (harta sepencarian) claims, declaration of nusyuz etc. Furthermore, my ex-wife was of the view that the children would also be deemed to be illegitimate, and custody would go to her pursuant to Section 86 of the Enakmen Undang Undang Keluarga Islam (Negeri Selangor) 2003.

She also claims that her application for suspension of all case proceedings would purportedly "save the Court's time".

In my defence I pointed out that

1. My ex-wife's application at the Mahkamah Rendah Syariah Petaling Jaya was done in bad faith (mala fide) to deny me my rights to child custody;
2. My ex-wife had never raised the issue of her being an illegitimate child prior to this, and in fact had in several affidavits affirmed that our previous pernikahan was "sah dari segi hukum syarak";
3. My ex-wife only raised this issue in the Selangor Syariah Courts 9 months after raising the same in the Kuala Lumpur Syariah Courts; and
4. There is no effect whatsoever to the child custody proceedings even if the Mahkamah Rendah Syairah Petaling Jaya were to declare that my previous marriage null and void. Pursuant to Sections 2 and 114 of the Enakmen Undang Undang Keluarga Islam (Negeri Selangor) 2003, the child's "nasab" or lineage would still be with me.

On 25 October 2011, the Honourable Judge decided that

1. My previous marriage if nullified would be deemed a "pernikahan fasid" and not "pernikahan bathil". A pernikahan would be deemed "fasid" if it was discovered that one of the "rukuns" or pillars was not adhered to AFTER the pernikahan took place, whereas a pernikahan would be deemed "bathil" if it was known at the time of the pernikahan that one of the "rukuns" was absent;
2. As the marriage was deemed "pernikahan fasid", hence Sections 2 and 114 of Enakmen Undang Undang Keluarga Islam (Negeri Selangor) 2003 would apply. Hence the childrens "nasab" would still be with me;
3. The child custody proceedings and all related proceedings shall proceed with immediate effect; and
4. The matrimonial assets case proceedings and other non-child custody related proceedings shall be suspended.

My ex-wife was seen very unhappy and devastated after the judgement was read. I trust she and her unsavoury legal advisor's focus now would be the battle at the Mahkamah Rendah Syariah Petaling Jaya.

My focus now would be on the child custody hearing, which is scheduled to resume for the fifth time early next year.

I really wonder what will they think of next...

Inconsistency at its glory

What happened in court last week was shocking! My confidence level on the Syariah judicial system nose dived and I began to seriously doubt its ability to deliver justice.

Last week was the "tarikh keputusan" or decision date on my ex-wife's husband's application to extend his injunction against me, my mum and his 2nd ex-wife.

As mentioned in my previous post, my previous injunction against him was set aside on grounds that

1. my previous injunction against him was only valid for 30 days; and
2. he is not a party to my child custody proceedings

In our reply to his application for extension, we argued that

1. there are material inconsistencies as to the validity period of his injunction. One clause in the injunction states that it is valid until his child custody proceedings are concluded, whilst another clause in the same injunction states that it is valid unless the courts issue an order stating otherwise. So which clause is to be used? Further to that, the application for extension also puts to question the validity of the two inconsistent clauses.
2. my mum and I are not parties to the child custody proceedings.

However, in making his decision the Honourable Judge stated that

1. my ex-wife's husband's application to extend the injunction was merely a precautionary measure and does not cast doubt as to the validity period of the injunction. It is therefore valid until his child custody proceedings are concluded; and
2. it is not clear that my mum and I are not parties to his child custody proceedings.

Is the Honourable Judge saying that my mum and I are parties to his child custody proceedings??? Pardon my language but is it a joke?

First of all, why on earth would I want to claim custody over HIS children? Secondly, even if we wanted to, where does it say in the Enakmen Undang Undang Keluarga Islam (Negeri Selangor) 2003 that my mum and I have rights to claim custody over his children? Finally, how is it that my mum and I are parties to his child custody proceedings when our names don't appear as parties in the case and no interveners have ever been filed. How is that NOT clear? How much clearer can it get?

How can the same judge make two contradictory decisions? How can justice be served if the courts are inconsistent with their decisions? All those hard earned monies spent on legal costs goes to nothing???