AMAK v ZJ [2021] 1 ShLR 60

SHARIAH COURT OF APPEAL (SELANGOR)

ISLAMIC LAW – CHILD CUSTODY

Facts

1.      The Appellant and the Respondent were married on 12 March 2006. On 18 September 2014, both of them got divorced at Hulu Langat Syariah Lower Court.

2.      Throughout their marriage, they were blessed with a child named AFAM (“the child”).

3.      Before they got divorced, on 6 March 2014 the Respondent had filed a claim against the Appellant which is the Hadhanah claim at the Syariah High Court.

4.      The Syariah High Court allowed the Respondent’s claim and held that the right to child custody was given to the Respondent who was the mother to the child while the Appellant was entitled to the visitation rights with the child.  Besides, the trial judge also held that the Appellant was disqualified as a guardian to the child.

5.      Dissatisfied with the decision of the Syariah High Court, the Appellant filed a notice of appeal.

Issues

1.    Whether the trial judge was erred in determining the eligibility of the Appellant and Respondent as guardians to the child?

1.  Whether the trial judge was erred in determining the eligibility of the Appellant and Respondent as guardians to the child?

(a)    Section 83 of the Islamic Family Law (State of Selangor) Enactment 2003 (“Enactment No. 2”) provides that –

“Section 83. Qualifications necessary for custody

A person to whom belongs the upbringing of a child, shall be entitled to exercise the right of hadhanah if –

(a) she is a Muslim;

(b) she is of sound mind;

(c) she is of an age that qualifies her to bestow on
the child the care, love and affection that the
child may need;

(d) she is of good conduct from the standpoint if
Islamic morality; and

(e) she lives in a place where the child may not
undergo any risk morally or physically.”

(b) Meanwhile, Section 84 of the Enactment No. 2 provides provision related to how right of custody is lost. It was stated that –

“Section 84. How right of custody is lost.

The right of hadhanah of a woman is lost –

(a) by her marriage with a person not related to the child within the prohibited degrees if her custody in such case will affect the welfare of the child but her right to custody will revert if the marriage is dissolved;

(b) by her gross and open immorality;

(c) by her changing her residence so as to prevent the father from exercising the necessary supervision over the child, except that a divorced wife may take her own child to her birth-place;

(d) by being a murtad; or

(e) by her neglect of or cruelty to the child.”

(c) In this present case, the Appellant argued that the Respondent had lost her right to custody in accordance with Section 84(c) of the Enactment No. 2 as she had changed her residence by moving from Cheras to Dungun, Terengganu with the intention to prevent the Appellant from exercising necessary supervision over the child.

(d)  Meanwhile, the Respondent contended that she has no intention to change residence for the purpose of separating the Appellant and the child but she had to move due to work commitment. Furthermore, she argued that being a mother,  she is the most qualified person to be the guardian of the child under Section 82(1) of the Enactment No. 2 which stated that –

“Section 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.”

(e)    The Respondent also asserted that the Appellant had lost his right to custody because he had cause injury to the child and the trial judge also held the same based on Section 83 or 84 of the Enactment No.2. However, no further commentary was made by the trial judge regarding such decision. Therefore, the Syariah Court of Appeal held that the trial judge had erred in making the finding that the Appellant was disqualified as a guardian to the child.

(f)  With regards to the issue of the Respondent changing residence from Cheras to Dungun, the Syariah Court of Appeal held that the Appellant had failed to prove that the act of the Respondent moving was solely for the purpose of preventing the Appellant from exercising his necessary supervision over the child. Hence, the Court agreed with the Respondent’s submission that she is required to move from Cheras to Dungun due to her career as a lecturer.

Decision

1. The Appellant’s appeal was dismissed and the decision of the Syariah High Court was upheld.

Key Take Away

1. In the case of dispute over child custody, the essential element that will be considered by the Court is the welfare of the children. However, in the present case, the child was around two (2) years old at the time the Respondent filed the child custody case against the Appellant. It is trite law that the mother is the most qualified person to be the guardian of the child as provided in Section 82(1) of the Enactment No.2.

2. Nevertheless, qualifications come with disqualifications. It is important to note that as much as the mother has the special right over the child custody, it is not absolute as the right could be rebutted if one of the disqualifications listed under Section 84 of the Enactment No. 2 is proven and the burden of proof is on the party who claims as such.

3. For example, in this present case the Appellant argued that the Respondent had lost her right under Section 84 (c) of the Enactment No. 2 by changing her residence from Cheras to Dungun with the intention to prevent the Appellant from exercising necessary supervision over the child. Therefore, the burden of proof is on the Appellant to prove that the act of the Respondent moving is solely for that purpose.

4. Unfortunately, the Appellant in this case had failed to prove the ineligibility of the Respondent meanwhile the Respondent contended that her reason of changing residence was due to work purpose and not all to separate the relationship between the child and the Appellant.