FAIZUDDIN BIN TASARUDDIN v ZAIRAWATI BT MOHD FAUZI [2016] 3 SHLR 30

Syariah High Court (Shah Alam)

Injunction Order for the Custody of Child (Hadhanah)

2.  Both of them were in the process of validating their divorce and had been living separately since October 2012.  The Applicant had resided with his parents, while the Respondent had stayed in their matrimonial home.

3.  A conflict arose when the Respondent took their daughters to the Applicant’s parents’ house in Kota Bharu, Kelantan, and threatened via text message (‘SMS’) to relocate the children to Thailand.

4. Consequently, the Applicant filed a police report and initiated legal proceedings seeking the right to visit, including joint visits and overnight stays with the children.

Issue

2.  Whether the Court has the jurisdiction to allow the injunction application by the Applicant?

3.  Whether the Court has the jurisdiction to grant the Applicant the right to visit either joint visit and staying over with the children?

Ratios

(a)  Section 61 (3) (b) (iii) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003 (‘Enactment No. 1 of 2003) highlights the jurisdiction of the Syariah High Court pertaining to the custody (‘hadhanah’) of the infants as follows:

“Jurisdiction of Syariah High Court

     61.  (3) The Syariah High Court shall—

           (b) in its civil jurisdiction, hear and determine all actions and proceedings if all the parties to the actions or proceedings are Muslims and the actions or proceedings relate to —

(iii)the maintenance of dependants, legitimacy, or guardianship or custody (hadhanah) of infants;”

(b)  Also, Section 196 and Section 197 of the Syariah Court Civil Procedure (State of Selangor) (‘Enactment No. 4 of 2003’) discussed the Court’s authority to grant interim orders and holds the discretionary power to grant interim orders based on its judgement as follows:

“Application

     196.  This Chapter shall apply only to the Syariah High Court.”

              ………………

 “Power of Court to grant interim order

197.  (1) Subject to this Chapter, the Court shall, in its discretion, have the power to grant any interim order on such terms as it deems fit and may give directions as to further proceedings.

 (2) An application for an interim order shall be made in Form 50 and supported by an affidavit.”

(c)  The Court has jurisdiction to hear and decide on this case as there was no objection to jurisdiction raised by the Respondent.  In fact, the domicile of the Applicant and the Respondent was in Selangor.

2.   Whether the Court has the jurisdiction to allow the injunction application by the Applicant?

(a)  The Applicant applied for a restraining or injunction order to prevent the child from leaving Malaysia, which the wife, the Respondent threatened to relocate the children to Thailand.

(b) The Court referred to Section 107 of the Islamic Family Law (State of Selangor) 2003 (‘Enactment No. 2 of 2003) as follows:

“Restraining order

107.  (1) The Court shall have power during the pendency of any matrimonial proceedings or on or after the grant of an order of divorce, fasakh, or annulment, to order any person to refrain from forcing his or her society on his or her spouse or former spouse and from other acts of molestation.

(2) Failure to comply with an order made under this section shall be punishable as a contempt of  Court.”

(c) While, Section 200 (1) and (2) of Enactment No. 4 of 2003, provides that –

“Injunction

 200.  (1) Upon an application of any party in any cause or matter, before or after the trial of the cause or matter, the Court may grant an the injunction whether or not the claim for the injunction has been included in the summons, counter claim or third party notice, as the case may be.

(2) An application under this section shall not be made before an action has begun except where it is one of urgency.”

(d)  The application also seeks to restrain the Respondent and/or their representatives and/or agents from taking the children out of the Klang Valley and/or Malaysia without prior permission from the Applicant.

(e)  The Court referred to a series of threat made by the Respondent against the Applicant which were summarised as follows:

(i)  22 December 2013 – the Applicant received  threatening SMS from the Respondent indicating the intention to reside in Thailand.  The Applicant made a police report.

(ii)   31 December 2013 – the Applicant received threatening SMS from the Respondent indicating the intention not to come Kuala Lumpur; and

(iii)  2 January 2014 – the Applicant made a police report which stated that the Applicant had seen the children for the last time on 22 December 2013 and did not know about their whereabouts after the date.

(f)  As such, the Court was of the view that it is appropriate to issue a restraining/injunction order to prevent unforeseen and future inconveniences from the Respondent to the Applicant.

3. Whether the Court has the jurisdiction to grant the Applicant the right of visit either joint visit and staying over with the children? 

(a)  The Court referred to the book of Ahkam al-Usrah Fi al-Islam by Syeikh Nabil Ibnu Kamaluddin which emphasizes the significant aspect concerning hadhanah revolves around a father’s position regarding the right to visit his child under the care of his former wife, or a mother’s right to visit her child who remains under the care of her former husband or another individual as directed by the Court to look after the child.   Therefore, it is not permissible for the child’s custodian to prevent the father or mother from visiting the child.

(b)  Section 88 (1) and (2) (a) (b) the Enactment No.2 of 2003 also states that –

“Orders subject to conditions

88.  (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.

(2) Without prejudice to the generality of subsection (1), an order for custody may—

(a) contain conditions as to the place where the child is to live and as to the manner of his or her education;

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

(c)  In this case, the Court was of the view that the Applicant’s right to visit will be determined based on the suitability of the facts and existing circumstances.  The Court referred to the book of Mausuah Feqh Wa Qada’, Ahwal Syakhiyyah, Volume 3, by Muhammad Azmi Al-Bakri which was referred in the case of Noraini bt Hanipah lwn Nasruddin Shah Bhaghit bin Abdullah JH XXIII (1), page 99 as follows:

“Every mother and father have the right to meet or visit their children, and similarly, grandparents also have the same rights when that children are without their parents.”

If both parties fail to manage the implementation of these rights, then, the Judge can decide (about the right of visit) as long as the child is safe from any danger or threat.  In the event one party causes difficulty or complicates the right of visit process without reasonable cause, the Judge may require a transfer of custody rights to a deserving party for a specified period as determined by the Court.”

(d)  As such, since there was no strong argument or claim that the Applicant cannot visit the children, the Court also referred to maxims of Islamic Jurisprudence methodology in the book of Al- Asbah Wa An-Nadhair Fi Qawaid Wa Furu’ie As-Syafie, Juzu’ 1, page 51 –

“A thing shall remain as it was originally.”

(e)  The Court also referred to the provision of Section 121 (1) (b) and (2) of Enactment No. 4 of 2003 which stipulates that the Applicant must pronounce “Yamin Al-Istizhar” since the Applicant was absent on the last mention of the case on 20 Mac 2014, as follows –

“Absence of parties

121.  (1) If, when any action is called on for hearing—

 (a) …..

 (b) the defendant does not appear, the Court may, subject to proof of due service, hear and determine the action in his absence; or

(c) ……

    (2) The Court shall, before making any judgment on the Plaintiff’s claim under paragraph (1)(b) or the defendant’s counterclaim under paragraph (1)(c), order the Plaintiff or the defendant, as the case may be, to take an oath of istizhar.”

(f)    Therefore, the Court was of the view that it was in line with the Practice Direction No. 1 of 2003 (‘the Direction’), which has authorized the use of the oath of istizhar in Mal cases in the event of the absence of the Defendant.  Thus, after reviewing all the evidence and arguments submitted by the Plaintiff, the Court will require the Plaintiff to take the oath of istizhar before the Court decides on the Plaintiff’s case.   The reference to the Direction was also decided in the cases of Syam Sarah v. Kasim (1987) JH VI (1) and Halinah v. Mohamed Nasir (1982) JH II (1).

1.   In the matter of hadhanah, Islam recognizes and upholds the rights of both parents in the upbringing and care of their children.  Hence, the father’s right to visit his child is recognized in Islam as part of the parental responsibility and involvement in the child’s life.

2.   Thus, in the cases of hadhanah, where custody may be granted to the mother or another party, it does not negate the father’s right to maintain contact and have visitation with his child.  Unless there are specific circumstances that may pose harm or danger to the child, both parents are generally entitled to maintain a relationship with their children, even if custody is primarily granted to one of them.