ROSHDI ZAKARIA v ROSMAWATI MAHFAR [2021] SLRAU 14

Syariah Court of Appeal (Selangor)

Hadhanah (Custody of Children)

1.     The Appellant and the Respondent were married on 21 December 1999 and later divorced on 19 April 2018 with one talaq. They were blessed with four (4) children during the marriage namely MRR, MRBR, MRAR and MRIR.

2.    The issue on custody of the children was heard by the Syariah High Court in Shah Alam, Selangor (“High Court”) on 13 November 2019. The High Court granted the custody of the children namely MRAR and MRIR aged 17 and 11 years old respectively to the Respondent.

3.    The instant appeal thus filed by the Appellant on the grounds that the High Court judge had erred on the following grounds:

(a)  The learned High Court judge had erred in law in rejecting the Appellant’s claim on his counterclaim;

(b)  The learned High Court judge erred in law for the decision regarding the custody of both MRAR and MRIR by only listening to their own choices without taking into consideration the statements of the parties in which had prejudiced the Appellant; and

(c)  The learned High Court judge erred in law when he failed to take into account the existence of a review of the presiding case and gave a decision to the Respondent.

4.    Upon considering the notice of appeal, the Court is of the view that the only issue which will be heard at this instant court is the issue of whether the learned High Court judge erred in law for the decision regarding the custody of both MRAR and MRIR by only listening to their own choices without taking into consideration the statements of the parties in which had prejudiced the Appellant.

1.    In deciding on this issue, the Court scrutinised the grounds of judgment of the learned High Court judge on page 116-128 of the Records of Appeal in which the learned High Court judge had elaborated that the children were justified to make their own choices –

“… based on the provisions and authorities above, the court believes that the concept of choice by the child also applies where in this case MRAR and MRIR have reached the mumaiyiz’s age.  Therefore, the children should be called and given the opportunity to make their choice whether to live with their biological mother (Plaintiff) or their biological father (Defendant).”

“… The Court is of the view that the choice of MRAR and MRIR to live with the Plaintiff can be accepted by court…”

2.   Based on the above-mentioned judgments, the Court found that the learned High Court judge was satisfied with the interview session with the children and confirmed that the children are mumaiyiz.

3.    For the purpose of further explanation, it is best for the Court to explain the definition of mumaiyiz according to the jurist’s opinion. According to Dr Wahbah al-Zuhaili in Fiqh and Islamic Law, Volume IV, Dewan Bahasa dan Pustaka Kuala Lumpur 1996 in page 126 explained-

“Mumaiyiz is the stage where children can already distinguish between good and bad and in between which gives benefit and which gives harm, as well as he can understand the meaning of sentence expressions in general. For example, he understood the meaning of “selling” as letting go property and the meaning of “buy” is to acquire property,”

4.    Accordingly, the Court further held that if it is satisfied that the children in question had attained the age of mumaiyiz, their choice of living under either of the parent is in accordance with Section 85(2) of Islamic Family Law (State of Selangor) Enactment 2003.

5.    The Court also highlighted the concept of choice by the children based on the excerpt in Al-Umm by Imam Al-Safie, the fifth juzuk, at page 99, Beyrut, Lebanon which described that when the child turn seven years old or eight years old and they are perfectly intelligent, they may choose between his father or his mother and who they will be with.

6.    The Court is of the opinion that the learned High Court judge had not erred in making decision pertaining to the custody of the children based on the children’s choices to live with his mother since both MRAR and MRIR have reached the age of intelligence (mumaiyiz) as outlined by the above-mentioned authorities. The choice of the children is a valid decision because at that time the children have reached a certain age in which they can express their own opinion.

Decision

1.   Hadhanah is the Arabic term for child custody which is defined as the legal claim of the utmost rights of the children.

2.    According to Section 82 of the Islamic Family Law (Federal Territory) Act 1984 (“Act 303”) outlined the requirements for custody are as follows:

(a)  she is a Muslim;

(b)  she is of sound mind;

(c)  she is of an age that qualifies her to bestow on the child the care, love, and affection that the child may need;

(d)  she is of good conduct from the standpoint of Islamic morality; and

(e)  she lives in a place where the child may not undergo any risk morally or physically.