IW v. MIS [2020] SLRHU 4

Syariah High Court of Selangor (Shah Alam)

Child Custody (Hadhanah)

1.    The Plaintiff and the Defendant were married on 16 April 2010, and their marriage was dissolved by fasakh on 8 June 2016. Throughout their marriage, they were blessed with three (3) children. In light of these circumstances, the children remain minors, aged 9, 7, and 6, and are considered to be under the age of discernment (mumaiyiz). The Court is required to consider relevant Hukum Syarak and legal provisions in determining the appropriate custody arrangement.

2.    The Defendant did not appear before the Court after the Writ and Statement of Claim were duly served to him on 27 April 2018.

3.    In this case, the Court is satisfied that the ages of the three children remain below the age of discernment, specifically 9 years old (extended age as requested by the Plaintiff), 7 years old, and 6 years old. The provision to be applied in determining this case is section 82 of the Islamic Family Law (State of Selangor) Enactment 2003 [“Enactment No.2. of 2003”].

(a)   The Court, in this case, referred to subsection 82(1) of the Islamic Family Law (State of Selangor), Enactment 2003 Enactment No. 2 of 2003 which provides as follows-

“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”

(b)   This provision is consistent with the views of Abd al-Karim Zaydan in al-Mufassal fi Ahkam al-Mar’ah Wa al-Bayt al-Muslim fi al-Syariah al-Islamiyyah (p. 9), Sunan Abi Dawud, vol. 2, Kitab al-Talak, Bab Man Ahaqqu bi al-Walad, Hadith No. 2276 (p. 397), as well as the perspective of Imam Taqiyuddin Abu Bakar Muhammad al-Husaini in Kifayah al-Akhyar fi Hall Ghayah al-Ikhtisor fi al-Fiqh al-Syafie (p. 531). Furthermore, the Defendant has not raised any objections regarding Plaintiff’s fitness to care for the children, as Defendant has failed to appear before the Court following the proper service of the Writ and Statement of Claim.

(c)   However, the Defendant’s right as a father to visit the children must be upheld to maintain the familial bond between father and children. The Court cannot deny such rights, as this entitlement is clearly articulated in the views of the jurists in the book Ahkam al-Usrah Fi al-Islam by Sheikh Nabil ibnu Kamaluddin (p. 452). This is in line with the provision under section 88 of the Islamic Family Law (State of Selangor), Enactment 2003 [“Enactment No. 2 Of 2003”], provides that a custody order must be subject to certain conditions, including those outlined in paragraph (2)(d), which provides for the child to visit the non-custodial parent or a family member of the deceased or non-custodial parent at times and for periods deemed appropriate by the Court, and/or paragraph (2)(e), which grants the non-custodial parent or a family member of the deceased or non-custodial parent the right to meet with the child at times and frequencies deemed appropriate by the Court.

(d)   In this case, the Court held that it would be appropriate to set visitation times at any reasonable time, as specifying a fixed schedule for visitation would complicate the implementation process, especially given that the Defendant has not appeared in the case. Therefore, it is deemed appropriate for the Court to decide on the general time and day for visitation, with the requirement that such visits be subject to the Plaintiff’s consent.

(e)   In light of the circumstances, the Court will exercise its discretion to determine the most appropriate times and duration for visitation. The Court also strongly urges the Plaintiff not to interfere with or prevent the Defendant from visiting the children at any time that is reasonably requested. Any interference or obstruction by the Plaintiff could result in a reassessment of custody, potentially granting custody to the other party, as highlighted in Mausuah Feqh Wa Qada’, Ahwal Syakhiyyah, vol. 3, by Muhammad Azmi Al-Bakri and the case NH v. NSBA [2006] SLRAU 2; [2007] 1 CLJ (Sya) 230; [2007] 23(1) JH 99.

2.    Whether it is appropriate to decide this case in the absence of the Defendant?

(a)   In this case, the Defendant has not appeared in Court since the Writ and Statement of Claim were served through substituted service by advertisement in Utusan Malaysia on 18 April 2019 and by posting to the Defendant’s last known address.

(b)   Consequently, the case proceeded with a hearing in the Defendant’s absence, according to subsection 121(1)(b) of the Syariah Court Procedure Enactment (Selangor) 2003. As the Court proceeded with the trial in the Defendant’s absence, the Plaintiff must take the “Yamin Al-Istizhar” oath, as stipulated, prior to making any decision.

(c)   This is in line with Practice Directive No. 1 of 2003, which confirms the use of the Istizhar oath in family law cases where the Defendant is absent. After hearing all the Plaintiff’s testimony and arguments, and to avoid any allegations, the Court required the Plaintiff to take the Istizhar oath before rendering a decision. This requirement is also consistent with the ruling in the case SS v. K [1987] SLRHU 4; [1998] 6(1) JH 136.

(ii)        The Court ordered that the Defendant to be granted the right of visitation at any reasonable time, provided that Defendant informs the Plaintiff at least two (2) days in advance of the intended visit and obtains the Plaintiff’s prior consent.

(iii)        Authorities, including the Immigration Department and Police, were instructed to assist in enforcing the custody order.

(iv)        Non-compliance with the order would result in contempt of court

Key Take Away

1. In cases of non-appearance, courts may provide visitation rights to the non-custodial parent, emphasizing the importance of maintaining parent-child relationships.