NABA @ CPY v ABK [2022] 1 SHLR 1

Syariah Court of Appeal (Shah Alam)

Amendment of Hadhanah Consent Judgment

2.     On 27 March 2006, the Appellant and the Respondent were married and following that were divorced with a son on 27 May 2013.

3.     On 27 November 2016, both of them obtained a hadhanah order through a consent judgment to visit their child.

4.     Therefore, on 24 March 2016, the Appellant applied for an amendment of consent judgement to change the Respondent’s visiting time to the son, which were daily visit rights and overnight rights during weekends, two holidays and regular holidays.

5.     On 2 August 2016, the Respondent being the biological father, filed a defence and counterclaim to claim the responsibility of the child custody.

6.     Hence, the Syariah High Court allowed the Respondent’s application.

2.     Whether the choice of child violates the law and Hukum Syarak?

3.     Whether the child’s welfare may be considered as a factor to amend the hadhanah consent judgement?

“Section 77. Power of Court to vary agreement for custody or maintenance of a child.

The Court may at any time and from time to time vary the terms of any agreement relating to the custody or maintenance of a child, whether such agreement was made before or after the appointed date, notwithstanding any provision to the contrary in the agreement, where it is satisfied that it is reasonable and for the welfare of the child so to do.”

2.     Nevertheless, the Syariah Court of Appeal decided that the hadhanah consent judgment cannot be amended or withdrawn or appeal.  Section 77 of the Islamic Family Law (State of Selangor) Enactment 2003 allowed for any claim to vary a consent judgement, and the reason of the Appellant to amend the consent judgement was based on the welfare of the children.

3.     On the other hand, the Appellant’s reason for filing the consent order amendment was due to the change of the son’s age from six (6) years nine (9) months during the date of consent judgment to ten (10) years thirty-nine (39) days.  Based on the initial hadhanah consent judgement, the Appellant claimed that it was difficult to visit the son as he has been enrolled to school which affected the daily and weekend visitation rights.

4.     In addition, the Syariah Court of Appeal also considered the duration of the custody and the right of the child to choose his own custodian based on Section 85(2) and Section 87(b) of Islamic Family Law (State of Selangor) Enactment 2003. Such law provides-

“Section 85. Duration of custody

(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.

“Section 87. 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—

(b)   the wishes of the child, where he or she is of an age to express an independent opinion.

5.     Based on the provisions aforementioned, the Court held that as in accordance with Hukum Syarak, the child who has attained the age in which he or she can discern between right and wrong or mumaiyiz could choose his own custodian.

6.     Moreover, the son gave the opinion based on his own personal capacity as a mumaiyiz person by choosing to stay and live with the Respondent.  Hence, the Court found that the son already possessed sufficient intelligence and indeed a mumaiyiz.

7.     The Court also considered the main issue of welfare regarding the religious upbringing and Fardhu Ain studies for the child. In relation to this matter, the Appellant only relies on the syllabus of Islamic Religious Education in the school, whereas the Respondent aimed to focus on raising the child at home by providing knowledge and experience relating to prayers, fasting and reciting Al-Quran in addition to receiving education from Sekolah Agama or KAFA.

8.     Therefore, the said issue of child welfare is aligned with the son’s wishes who would want to perform the prayers and the same is achievable at the Respondent’s house, as compared to the Appellant’s house. As a result, the Court upholds its reasoning on the welfare issue based on the Maqasid Syariah.

9.     Hence, the Court held that it is essential to protect the child’s religious upbringing in which the determination of the guardian regarding the welfare of the child should be amended and aligned with the choice of the son. Therefore, the amendment of the hadhanah consent judgement is allowed based on the Respondent’s counterclaim.

2.     In the present case, it has been properly highlighted about the sense of responsibility in raising the child based on Islamic teachings and the freedom of mumaiyiz child to choose his own custodian.