Mat Ghani bin Ismail v Samsiyah Bt Mansor [2013] 3 SHLR 1

Shariah Appeal Court (Terengganu)

Custody of Child

Facts

1.     The Appellant (the father) and the Respondent (the mother) were married on 30 March 2005 and subsequently divorced on 18 May 2010.  They were blessed with a son (“the Child”) who was born on 6 January 2006.

2.     Before the divorce, the Appellant and the Respondent had stayed separately since December 2008 where the Respondent had returned to her parents’ house in Kuala Terengganu with the Child.

3.     The Appellant, on 16 January 2009 took the Child from the Respondent.

4.     Later, an ex-parte interim order was granted to the Respondent by the Syariah High Court on 23 August 2009 and therefore took the Child back from the Appellant.

5.     Eventually, the Child was again took by the Appellant on 1 December 2009 since the Respondent failed to file the main custody claim within the stipulated period.

6.     On 14 October 2009, a hadhanah case was filed by the Appellant.  During the proceeding of the case, the Respondent received an interim ex parte order on 1 December 2009 (“the Interim Ex-Parte Order”).

7.     With regards to the Interim Ex Parte Order, the Appellant then filed an inter parte order to set aside the Interim Ex Parte Order.

8.     The trial Court consequently denied the Appellant’s inter partes application to set aside the Interim Ex Parte Order.  However, the Appellant had refused to surrender the Child to the Respondent and the Child had remained in the Appellant’s care until the main custody is resolved.

9.     The Appellant then filed an appeal against the decision by the High Court.

1.     Whether the trial Court had erred for not considering the welfare of the Child by placing the custody with the Respondent?

2.     Whether the trial Court erred for not having called the Child to make a choice of his own?

1.     The Custody of the Child

(a) The Appellant in this case contended that it is unacceptable to disarray the Child’s life by changing the custody since welfare of the child has been well maintained under the Appellant’s care.

(b) The Court based on the facts of the case stated that the Child has stayed with the Respondent from the day that the Appellant and the Respondent separated i.e. December 2008 until the Child was taken by the Appellant on 16 January 2009.

(c)  On 1 December 2019, the Appellant took the Child after ex parte order has lapsed due to the Respondent’s failure to file for the Child’s custody.

(d) The Appellant since then had continue to look after the Child until the trial Court made a decision on the permanent custody of the Child on 17 January 2012.

(e)  The trial judge has also found that there is an element of incitement by the Appellant in raising the child so as to cause hatred and reluctance to be with the Respondent.

(f)   In considering the Child’s custody, the issue on welfare should also be taken into account where the Child should be raise with a good manner and must do good to his parents.  This is according to Surah Luqman verse 14 where Allah said-

“And We have enjoined upon man [care] for his parents.  His mother carried him, [increasing her] in weakness upon weakness, and his weaning is in two years.  Be grateful to Me and to your parents; to Me is the [final] destination”.

(g) The Court also referred to a hadith by Rasullulah SAW in Sahih Bukhari where-

“A man came to Allah’s Messenger  and said, “O Allah’s Messenger  Who is more entitled to be treated with the best companionship by me?” The Prophet said, “Your mother.” The man said. “Who is next?” The Prophet said, “Your mother.” The man further said, “Who is next?” The Prophet said, “Your mother.” The man asked for the fourth time, “Who is next?” The Prophet said, “Your father”.

(h)  Thus the above authorities clearly emphasised that a child must respect their mother as according to Syarak, the heaven lies beneath the feet of the mother.

(i)    Therefore, the trial judge’s decision in granting the Child’s custody to the Respondent to prioritise the welfare of the Child is in accordance with the requirements of Section 85(2) of the Administration of Islamic Family Law Enactment (Teregganu) 1985 where it stipulates that-

“Power of the Court to make order for custody

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”.

2.     The right of the Child to choose his guardian.

(a) The Child has the right  to choose his guardian provided that he is mumayyiz.  This is stipulated under Section 83 of the Administration of Islamic Family Law Enactment (Teregganu) 1985 –

“Duration of custody

(1)  The right of the hadinah to the custody of a child terminates upon the child attaining the age of custody 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 the 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.

(2) After termination of the right of the hadinah, the custody devolves upon the father, and if the child has reached the age of discernment (mumaiyiz), he or she shall have the choice of living with either of the parents, unless the Court otherwise orders”.

(b) Based on the above provision, it is clear that the Child must be mumayyiz to make his own choice.  The trial Court in its judgment stated that the Child is not mumayyiz since he is 6 years old and has not reached the age of mumayyiz as according to the Shafie jurispridence, the age of mumayyiz is 7 years old

(c)  Since the Child was not mumayyiz during the proceeding at the Trial Court, the trial judge was not erred in making the decision.

1.      The implementation of hadhanah is according to Surah Al-Qasas verse 13 where Allah said-

“So We restored him to his mother that she might be content and not grieve and that she would know that the promise of Allah is true.  But most of the people do not know”.

2.      Child custody or hadhanah refers to the right of guardianship of a child as well as the responsibility for his safety and it extends beyond the physical treatment of the child to include the nourishment of the child’s inner dimensions.

3.     To add, hadhanah falls within the classification of hifz an-nafs (keeping the soul), which is made obligatory.  This is because, the failure to protect the child will expose him to danger.

4.     Therefore, the hadhanah is given to those who are sincerely entitled and capable of taking care of the child’s welfare i.e. the mother.