CHARLOTTE MARY ERICA LENG lwn. ANIS SANI BIN ARIFFIN [JH 47 BHG 2]

 

CHARLOTTE MARY ERICA LENG lwn. ANIS SANI BIN ARIFFIN [JH 47 BHG 2]

Syariah High Court of Shah Alam (Selangor)

Application for Hadhanah

Facts of the case

1.    The marriage between the Plaintiff and the Defendant was solemnized on 8 August 2008, in the Federal Territory of Kuala Lumpur. However, the divorce proceedings took place on 27 October 2015, at the Lower Syariah Court of Petaling Jaya between the two parties.  As a result of their marriage, they were blessed with two children, whose names are “S,” who is seven years old, and “E,” who is three years old.

2.    During the course of this case proceedings, there was an Interim Custody Consent Order recorded and endorsed by the Syariah High Court on 10 October 2013.  The terms outlined in the Interim Order are as follows:

(a) The Court ordered that, as of 13 October 2013, the Defendant be granted visitation rights with the children for every Sunday.  Until further order by the Court, the Defendant is obligated to fetch the children from the vestibule or ground floor of Prima 16 Condo, Jalan 16/8 Petaling Jaya, or any mutually agreed-upon location, at 9:00 AM on the given day.  They must be returned to the same location by 7:00 PM on the same day.

(b) The Court ordered that the Plaintiff and Defendant, as well as their agents and representatives, are prohibited and restrained from physically and mentally disturbing the children, distorting facts, or discussing this case in any manner with those children.

(c)  The Court ordered that the Plaintiff, Defendant, their agents, or appointed representatives are prohibited from taking the children out of Malaysia until the main custody case is determined or decided by the Court, except with the written consent of the other party and confirmation from that party.

(d) The Plaintiff and Defendant, along with their agents or representatives, are therefore ordered by the Court to refrain from all contact and any action that may cause the other to experience physical or mental distress.

Issue 1.    Whether the mother or father has the right to be the guardian (hadhinah) of the children?
Ratios 1.    Whether the mother or father has the right to be the guardian (hadhinah) of the children?

(a) This case pertains to the matter of child custody (hadhanah) involving a 7-year and 6-month-old child and a 3-year and 10-month-old infant.  The Court referred to the opinion of Imam Taqiyuddin Abu Bakar bin Muhammad Al-Husaini as stated in the book “Kifayah Al-Akhyar” volume 2 page 93, which expressed-

“In the event of a divorce between a man and his wife, precedence is given to the mother in acquiring custody rights (hadhanah) over the children of the couple, surpassing the father and any other woman, provided specific conditions are met”.

(b)  The Court also referred to Section 82(1) and 85(1) of the Islamic Family Law Enactment (Selangor) 2003 (“Enactment No. 2 Of 2003”), which explained as follows:

“Section 82(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”.

“Section 85(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)   Section 84 Enactment No. 2 Of 2003, on the other hand, explained how the custody rights of a woman would be lost when a dispute regarding the determination of a child’s guardianship is raised, namely-

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.

(d)   The General Practice Direction of the Syariah Courts No. 15 of 2007, outlines the circumstances under which a man forfeits his eligibility to serve as a guardian for custody, as follows-

(i)        by his gross and open immorality;

(ii)       by being a murtad;

(iii)      by his neglect of or cruelty to the child;

(iv)     If he becomes mentally incapacitated; and

(v)      If he acquires leprosy, smallpox, or other infectious diseases that pose a threat to the child.

(e)   During cross-examination, the Plaintiff admitted to leading an unhealthy lifestyle by consuming intoxicating beverages from the early days of marriage until the present case.  The Plaintiff also resides in an environment that could negatively impact the morals and physical well-being of the children.  The Plaintiff, in raising the said children, is assisted by a Christian domestic helper who may disrupt the children’s upbringing process.  The Plaintiff also acknowledged their inability to articulate the Syahadah or recite Al-Fatihah, as well as their failure to fulfill the obligation of performing prayers.

(f)   The Defendant’s counsel referred to the case of Tunku Mahmood Shah Mohammad v. Noor Faridah Sutherland Abdullah [2004] CLJ (Sya). In this instance, custody of the child was granted to the father due to the mother being a convert (muallaf), coupled with her continued ambiguity and lack of adherence to Islamic principles.

(g) The Defendant admitted to consuming alcoholic beverages alongside the Plaintiff.  The Defendant also acknowledged that it had become a customary practice for them to drink wine together.

(h)  The Court concluded that the Plaintiff’s consumption of alcohol has resulted in the forfeiture of her right to act as a guardian to their children under section 84(b). Despite losing eligibility as a guardian, reference is made to the Syariah Courts’ General Practice Direction No. 15 of 2007. Similarly, the Defendant has also lost eligibility as a guardian due to his involvement in alcohol consumption.

(i)    In addressing the issue of the Christian domestic helper, it is noted that this domestic helper had been working since 2011.  This situation indicates that both the Plaintiff and the Defendant agreed that their Christian domestic helper is employed to care for and nurture their children.

(j)    In safeguarding the welfare and best interests of the child, the Court referred to Sections 87(2)(a) and (e) in determining who is entitled to care for the child, considering the parents’ wishes and weighing the disruption to the child’s life caused by changing custody rights.

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)… ……

(3) It shall be a rebuttable presumption that it is for the good of a child during his or her infancy to be with his or her mother, but in deciding whether that presumption applies to the facts of any particular case, the Court shall have regard to the undesirability of disturbing the life of a child by changes of custody.

(k)  The Court also referred to the case of Hasanah binti Abdullah v. Ali Muda JH 13 (2), page 159, where the judge explained as follows:

“Exchanging custody rights does not yield benefits for the growth and welfare of the children involved. Should such exchanges occur, they may disturb the child’s emotions and fail to promote their mental stability.”

(l)  Considering the issue of eligibility as well as the concerns of the welfare and well-being of the children, the Court is satisfied to declare that matters of welfare and well-being deserve primary consideration in determining custody rights over the children. The Court is content to assert that the children’s welfare takes precedence and it is appropriate for them to be placed under the care of the Plaintiff.

Decision

1.    The Court ordered custody rights (hadhanah) to be granted to the Plaintiff (mother).

2.    The Court ordered the Defendant to be granted visitation and overnight stays with the children on the first, third, and fourth weeks of each month, commencing on Saturday at 10:00 AM and concluding on Sunday before 6:00 PM.

3.    The Court ordered that both the Plaintiff and Defendant be granted joint visitation and overnight stays with the children during school holidays on an equal basis.

4.    The Court ordered that the children shall receive sufficient basic “Fardhu Ain” education, including attending any religious classes, together with the Plaintiff, and the expenses shall be borne by the Defendant.

5.    The Court ordered that the Plaintiff and Defendant be allowed to communicate with the children while under the care of either party.

6.    The Court ruled that the Interim Custody Order through Application No: 10300-038-0477-2013 dated October 10, 2013, is hereby revoked.

 

Key Take Away

1.    The foremost principle applied across all custody cases emphasizes that the rights of the children in question should take precedence over those of the parties vying for custody. This is because the essence of custody is aimed at ensuring the well-being of the children rather than serving the interests of the conflicting parties.

2.    It is the responsibility of all parties to ensure that those children affected by divorce are adequately protected. In which the impact of the divorce must not jeopardize the welfare and cause negative effects on the children.

 

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