BI v ZZ [2015] 3 SHLR 7

Syariah High Court (Federal Territories)

Hadhanah

1. The Plaintiff was the former wife of the Defendant. They were married on 31 May 1995, but their marriage was dissolved by way of fasakh which was filed by the Plaintiff and decreed by the trial judge on 4 February 2010.  During the course of their marriage, they were blessed with four children, i.e two sons and two daughters (“the children”).

2. Prior to the divorce, the Plaintiff left the matrimonial home due to the Defendant’s intention to remarry. The Plaintiff took one son and two daughters but later returned the son to the Defendant’s home.

3. Since then, the two daughters lived with the Plaintiff while the two sons live with the Defendant.  Both parties have visitation rights and may take the children on weekends or at other agreed times.

4. The Plaintiff applied to the Syariah High Court (SHC) for custody of the sons.

5. As the children has reached the age of mumayyiz, the Court ordered that the children be presented in Court for interview.

2. Whether visitation rights are afforded to the non-custodial party?

(a) In addressing the issue of hadanah, the Court referred to the definition of hadhanah under Islamic law as provided by Dr. Wahbah al-Zuhayli in his work al-Fiqh al-Islami wa Adillatuh, Volume 10, page 7295, wherein he states-

‘The term “Hadanah” in linguistic terms signifies “beside” or “alongside.” In the context of Islamic law (Syarak), it refers to the right to nurture, care for, and educate children, which is vested in individuals who do not hold legal custodial rights….’

(b) The Court then referred to the authorities that have been cited by the fuqaha on the issue of hadanah. In the book of Al-Muhazzab (Volume 2, p. 171) and Mughni al-Muhtaj (Volume 3, p. 456), it is mentioned as follows:

‘In the event of a separation between husband and wife, where they have a child who is of the age of mumayyiz, whether male or female, and has reached the age of seven or eight years, and both parents are qualified to maintain custody (hadanah), even if one of them is superior in terms of religion, wealth, or affection, and they cannot come to an agreement, the child shall be given the choice between both parents and may reside with the parent they choose. This is based on the practice of the Prophet Muhammad (PBUH), who granted a young boy the choice between his mother and father.’

(c) Further, the Court also gave due consideration to the provisions of subsection 81(1) of the Islamic Family Law (Federal Territories) [Act 1984] (“the Act”) which provides as follows:

‘81. (1) Subject to section 82, 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.’

(d) This provision clearly outlined the mother’s right as the primary guardian of her minor children. In answering the issue of whether the mother, the Plaintiff in this case, is eligible to be the guardian of the children, the Court made reference to section 82 of the same Act, which provides as follows:

‘82. A person to whom belongs the upbringing of a child, shall be entitled to exercise the right of hadanah 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 of Islamic morality; and

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

(e) The Court was satisfied that the Plaintiff fulfilled the Islamic religious requirement under paragraph 82(a).  Additionally, since no evidence was presented to challenge the requirements under paragraphs (b), (c), and (d) of section 82 the Act, the Plaintiff is deemed to have met three other requirements i.e, mental soundness, appropriate age and maturity to provide love and care, and good character.

(f) However, regarding the fifth condition under paragraph 82(e) the Act, which requires the guardian to reside in a place where the child will not be exposed to harm, the Defendant asserted that his residence providers a safer and more comfortable living environment.  In considering the safety of both residences, the Court found no evidence that the Plaintiff’s home posed any security risks.

(g) The Court also referred to section 86 of the Act, which states as follows:

‘Power of the Court to make order for custody

86(2) In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and, subject to that consideration, the Court shall have regard to—

(a) the wishes of the parents of the child; and

(b) the wishes of the child, where he or she is of an age to express an independent opinion.

(h) Based on this provision, the Court, in exercising its authority, called the children to be interviewed in order to ascertain their preferred guardian before making a decision regarding custody.   The children have reached the age of mumayyiz and the Court is satisfied that they are capable of expressing their own opinion in accordance with the provisions under paragraph 86(2)(b) of the same Act.

(i) After reviewing the evidence presented by the Plaintiff, Defendant, and witnesses, as well as the interviews conducted with the children, the Court granted custody of the two daughters to the mother and the custody of the two sons to the father. In consideration of the children’s best interests, including the locations of the schools that they are attending, the Court is satisfied with the current arrangement and has ordered that the children remain with their respective parents.

2. Whether visitation rights are afforded to the non-custodial party?

(a) Subsection 87(1) of the Act states as follows:

‘Orders subject to conditions

87. (1) An order for custody may be made subject to such conditions as the Court thinks fit to impose and, subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child.’

(b) Similarly, paragraph 87(2)(c) and (d) provide as follows:

‘(b) provide for the child to be temporarily in the care and control of some person other than the person given custody;

(c) provide for the child to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the Court considers reasonable;’

(c) Therefore, the Court held that visitation rights must be granted to the party who does not have permanent custody in order to uphold the rights as outlined in the provisions mentioned above. Furthermore, it is essential for the children to spend time together to strengthen the bond of affection between the siblings and their parents.

1. The Court orders that custody of the daughters be granted to the Plaintiff, while custody of the sons be granted to the Defendant.

2. The Court orders that visitation rights be granted to both the Parties on a rotating basis, in accordance with the terms set by the Court.

1. The Court affirmed that while subsection 81(1) of the Islamic Family Law (Federal Territories) Act 1984 generally favors the mother’s right to custody, this right must be evaluated against the qualifying criteria set out in section 82, which includes being Muslim, of sound mind, of appropriate age, of good moral conduct, and residing in a safe location.

2. Significantly, the Court established that when children have reached the age of mumayyiz, their preferences should be given substantial weight in custody determinations. This aligns with both Islamic jurisprudential sources (such as Al-Muhazzab and Mughni al-Muhtaj) and statutory law under paragraph 86(2)(b) of the Act.