MZ v MFAB [2024] SLRHU 6

Syariah High Court (Seremban)

Interlocutory Preliminary Objection

1. The Applicant and the Respondent were lawfully divorced on 30 October 2021. During the subsistence of the marriage, they were blessed with a child, namely MDA, who is currently 7 years old.

2. Then, a Custody Order (Hadanah) was issued by the Syariah Subordinate Court, Seremban on 17 July 2023, under Case No: 05100-XXX-XXXX-2022. Custody of the child was granted to the Applicant, while the Respondent was granted rights of access and overnight visitation.

3. On 25 August 2023, the Respondent filed an application for a stay of execution of the said order under Case No: 2308-HXXXX-XXX-0471 on the ground that the stay is sought pending the disposal of the Respondent’s appeal in the custody matter.

4. However, the Applicant does not agree with the Respondent’s application for stay of execution and has accordingly filed a preliminary objection.

1. Whether the execution of the Custody Order (Hadanah) is capable of being stayed?

(a) In the Applicant’s submission, Arahan Amalan 1/2005 was cited as an authority, which provides as follows-

‘Penggantungan Pelaksanaan Perintah Sementara Menunggu Rayuan:

…menerima pakai arahan amalan mengenai Perayu membuat rayuan dengan alasan tidak berpuas hati dengan keputusan Mahkamah yang dirayu dalam kes Mal, menurut Hukum Syarak adalah memadai untuk menggantung pelaksanaan perintah, sementara menunggu keputusan rayuan dan rujukan hendaklah dibuat kepada mana-mana kes yang telah diputuskan oleh Mahkamah yang lebih tinggi kecuali dalam kes-kes nafkah, upah menyusu, tempat tinggal, hadhanah dan serah anak yang belum mumaiyiz kepada ibu.’

(b) Pursuant to the provisions set out in Arahan Amalan No. 1 of 2005, the Applicant contends that the Respondent has failed to adhere to the proper procedural requirements of the Syariah Court. The said Arahan Amalan clearly stipulates that a stay of execution shall not be granted in custody (Hadanah) matters pending the disposal of an appeal, as sought by the Respondent in the present case.

(c) The Respondent’s continued refusal to surrender the child to the Applicant and his failure to comply with the Custody Order issued on 17 July 2023 constitute a direct violation of a valid and enforceable the Court order.

(d) Such conduct not only infringes upon the Applicant’s rights as the lawful custodian and biological mother but also undermines the welfare and best interests of the child. The Respondent’s persistent non-compliance is, in the Applicant’s view, tantamount to wilful disobedience of a Court order and amounts to contempt of the Court.

(e) In response, the Respondent advanced several justifications for filing the application for stay of execution of the Custody Order, as follows-

(i) That it is a common practice for a stay of execution to be granted pending the disposal of an appeal;

(ii) That in the absence of a stay, the appeal would be rendered academic and of no practical effect;

(iii) That section 144 of the Syariah Court Civil Procedure Enactment (Negeri Sembilan) 2003 confers discretionary powers upon the Court to stay execution pending the decision of the Syariah Court of Appeal;

(iv) That in the case of HZ v. NAR [2005] SLRAU 10 (Appeal Case No: 08000-XXX-XXXX-2004), the trial judge had deferred the execution of the order pending the decision of the higher court; and

(v) That the welfare and best interests of the child would be compromised if custody were to be transferred at this stage.

(f) Upon due consideration of the respective submissions of both parties, the Court makes the following findings:

 (i) It is true that section 144 of the Syariah Court Civil Procedure Enactment (Negeri Sembilan) 2003 grants the Court the authority to stay execution pending judgment by the Syariah High Court, and that the granting of a stay of execution is a common practice while an appeal is being determined.

(ii) However, pursuant to Practice Direction 1/2005, is hadanah cases are not included among the categories of cases in which a stay of execution may be granted.

(iii) It is true that the case of HZ v. NAR [2005] SLRAU 10 (Appeal Case No: 08000-XXX-XXXX-2004), cited by the Respondent, demonstrates that the trial judge in that case allowed a stay of execution. However, the case referred to by the Respondent concerns matrimonial property division. In such matters, a stay of execution is indeed necessary to preserve the disputed property; without the stay, the appeal on the property would become merely academic.

(iv) Nevertheless, property disputes are not analogous to hadanah cases. In hadanah matters, while the appeal is pending, the welfare of the young child must continue to be safeguarded under the care of the party determined by the Court order.

(v) The Court is also of the view that the issue of the child’s welfare and best interests, as raised by the Respondent in relation to the transfer of custody rights, would undoubtedly have been taken into consideration by the trial judge prior to the determination of the hadanah (custody) case.

(vi) Therefore, the Court agrees with the grounds submitted by the Applicant, and finds that the Respondent’s application for a stay of execution of the order is misguided and ought not to be entertained.

(vii) The Court is of the opinion that the hadanah order must be enforced. Should there be any change in circumstances, the parties still retain the right to file an application for variation of the order.

(viii) The same applies in this situation; until and unless the Syariah Court of Appeal issues any order to the contrary, the parties remain bound by the existing hadanah order. Therefore, for the time being, the custody order must be complied with unless and until it is set aside or varied by a subsequent order.

1. The Court hereby allows the Applicant’s preliminary objection.

2. The Court orders that the Respondent’s application for a stay of execution of the Hadanah Order in Civil Case No: 2308-HXXXX-XXX-0417 be struck out.

1. Practice Direction 1/2005 expressly excludes custody (hadanah) cases from stay of execution pending appeal. Applications for stay in custody matters are fundamentally misconceived and will be struck out.

2. The welfare and best interests of the child override procedural considerations. The Court presumes the trial judge properly considered child welfare when making the custody order, requiring immediate enforcement.

3. Custody orders remain enforceable pending appeal until varied or set aside by a higher court. Non-compliance constitutes contempt of court regardless of pending appellate proceedings.