CMEL lwn. ASBA [JH 47 BHG 2]
Syariah High Court of Shah Alam (Selangor) Application for Hadhanah |
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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:
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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-
(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:
(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-
(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-
(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.
(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:
(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. |