AK v NZB [2020] 2 ShLR 1

Syariah High Court (Selangor)

Custody of Children

1.    The Plaintiff and the Defendant entered into marriage on 2 February 2012 and later obtained a divorce by fasakh at the Syariah Lower Court of Gombak Timur on 13 March 2019.

2.    Throughout their entire marriage, they were fortunate to have a child named ASAK, hereinafter referred to as the “Child”.  During the fasakh proceeding, the Child was below the age of mumayyiz, exactly six years old. The Plaintiff then filed a hadhanah claim ie for joint custody of the Child.

3.    On 2 October 2019, the Plaintiff’s Syarie lawyer submitted a notice of withdrawal as Syarie lawyer, citing the Plaintiff’s non-compliance as the reason for such withdrawal.  Eventually, the Plaintiff was absent from all subsequent legal procedures following the mention on 2 October  2019.  The pleadings were completed, and the trial continued with the Defendant’s testimony due to the Plaintiff’s absence in Court.  As a result, the case has been scheduled for a decision.

4.    The hadhanah claim rests mainly on the provisions specified in Section 82 of the Islamic Family Law (Selangor) Enactment 2003 (Enactment No. 2 of 2003).  Nevertheless, its suitability depends on the specific conditions and the child’s age.  Upon reaching the age of mumayyiz, which is seven years for boys (extendable to 9 years with a hadinah application) and nine years for girls (extendable to 11 years with a hadinah application), the applicable relevant legal provision is Section 85(2) of the Islamic Family Law Enactment (State of Selangor) 2003, instead of Section 82 of the (Enactment No. 2 of 2003).  In this case, as the Child is still below the age of legal discernment, specifically at the age of six, the Court applied Section 82 of (Enactment No. 2 of 2003) to make its decision.

2.    Whether the Plaintiff should be granted the visitation right by the Court?

(a) In this instance, the Court cited page 9 of the book Al Mufassal fi Ahkam Al-Mar’ah Wa Al-Muslim, which contains the following:

“The one who has the right to the guardianship of young children, regardless of their gender, is the biological mother.”

(b) The circumstance of this custodial right is also stipulated in section 82(1) (Enactment No. 2 of 2000) and is read in conjunction with section 85(1) of (Enactment No.2 of 2000), which elucidates-

“82. Persons entitled to custody of a child

(1) Subject to section 83, the mother shall be of all persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution.

85.  Duration of custody

(1) The right of the hadinah to the custody of a child terminates upon the child attaining the age of seven years, in the case of a male, and the age of nine years, in the case of a female, but the Court may, upon application of the hadinah, allow her to retain the custody of the child until attainment of the age of nine years, in the case of a male, and the age of eleven years, in the case of a female.”

(c)   The Court in this case also referred to the case of Mohammad Salleh lwn Azizah [1984] 4 JH 212)-

“The judge, in this case, noted that the available evidence does not suggest that the mother is unsuitable to provide care for the child in any way, including with regard to intelligence, mental health, religious affiliation, harmony, dependability, or accountability.  The Court determined that the wife has not remarried and resides in a secure location.  As a consequence, the court rendered a verdict directing the mother to assume custody of the children.   Despite the filing of an appeal with the Court of Appeal, the appeal was dismissed.  Moreover, Imam Shafie asserted that if both parents reside in the same locality or region during the dissolution of the marriage, the mother retains a more substantial claim to the children.  At the same time, she is unmarried and they are still young.”

(d) In the case of Faridah Hanim bt Omar lwn. Abd Latif Ashaari, [2006] 22 (1) JH 27 explains-

“According to this Court’s perspective, the plaintiff meets the criteria outlined in Hukum Syarak and the legal prerequisites to be eligible as a custodian (hadhanah).  She lacks any disqualifications or factors that would invalidate her candidacy as the legal guardian of her three children.   The defendant was unsuccessful in persuading the Court to reject the criteria and qualifications in question.  This Court deems it appropriate to grant the plaintiff the right to be the caretaker (hadhanah) for her three children.”

(e)  In this case, the Court held that the Plaintiff was absent for the whole duration of the trial.  Nevertheless, after scrutinising the Plaintiff’s statement of claim, it is shown that the Plaintiff did not dispute the Defendant’s eligibility as a custodian (Hadinah).  Since no claims are challenging the Defendant’s suitability as a caretaker, the Court is convinced that the Defendant, being the mother, has never discharged her status as the Child’s guardian.

(f)   Furthermore, the Plaintiff is a Nigerian citizen and does not hold Malaysian citizenship.  He is also not a Permanent Resident in Malaysia and instead relies on a visa to legally stay in the country, as stated by the Defendant in her defence.  In light of the child’s well-being, the Court deems it fair and suitable for the kid to be placed under the custody of the Defendant (mother).

2.    Whether the Plaintiff should be granted the visitation right by the Court??

(g)   In order to preserve the father-child connection, the Court should grant the Plaintiff right to visit his Child in his capacity as the father. The Court cannot deny these liberty.

(h)   Based on the perspectives of Islamic jurists in the book “Ahkam al-Usrah Fi al-Islam” written by Sheikh Nabil ibn Kamaluddin, it is clearly mentioned that-

“Several elements must be met in order for a custody order to be valid, as stated in Section 88 of the Islamic Family Law Enactment (State of Selangor) 2000. Paragraph (2)(d) outlines the requirements, one of which is that the child must be allowed to visit the parent or parents who were not granted custody or a relative of the parents who have died or who were not granted custody, at times and for any length of time the court deems reasonable. Furthermore, under paragraph 2(e), the court has the authority to make reasonable arrangements for the non-custodial parent or a relative of the non-custodial parent to visit the child wherever and whenever the court thinks fit.”

(i)    In the case of Noraini bt hanipah lwn. Nasruddin Shah Bhaghit bin Abdullah [2007] 23 (1) JH 99-

“The Court found that according to the viewpoint of the Shafi’i school of thought, as stated in the book “Mughni al-Muhtaj,” it is deemed inappropriate to remove male and female children who have not yet reached maturity (mumaiyiz) from their mothers. It is optimal for them to be in the constant presence of their mothers throughout the day and night. Simultaneously, the father is granted the privilege to have visitation with the children.”

(j)    The Court, as referenced in the book “Mausuah Feqh Wa Qada’, Ahwal Syakhiyyah, Vol. 3,” written by Muhammad Azmi Al-Bakri, advised the Defendant to refrain from obstructing or prohibiting the child from having contact with the Plaintiff whenever the Plaintiff wishes to do so. In the presence of interference and disturbance, custody rights can be awarded to the opposing party.

1.    The Court dismissed the Plaintiff’s claim.

2.    The Court ordered that the custody rights for a child named ASAK (Registration No.: XXXXX be granted to the Defendant (mother).

3.    The Court ordered that the Plaintiff (father) be granted the visitation right without overnight stay with the Child at any reasonable time, with prior notification to the Plaintiff (mother).

4.    The court ordered that any third party, including government agencies, specifically but not limited to the Immigration Department of Malaysia, Royal Malaysia Police, statutory bodies, and/or any other relevant authorities, shall cooperate in implementing the Court order.

5.    Failure to comply with the order shall constitute as contempt of court and may result in imprisonment.

Key Take Away

1.    The primary consideration for determining custody rights for children who have not reached the age of discernment is given to the biological mother, provided that she meets the standards of hadinah according to the Islamic law.

2.    Islam acknowledges the unique responsibility of mothers in offering care, nourishment, and emotional assistance to their children, particularly in the early stages of life.  The mother’s attachment is considered essential for the child’s emotional and psychological welfare.