S lwn. D [2019] SLRHU 6

Syariah High Court of Shah Alam, Selangor

Child custody

1.    The Plaintiff and the Defendant were married on 7 November 2010, and divorced on 14 March 2013, in Pahang. They have two children, SMS and SMH, aged seven and six years, respectively.  The Plaintiff is the father, and the Defendant is the mother of the children.

2.    As the children are still below the age of discernment (mumayyiz), the Court must consider the Syariah Law and relevant legal provisions in determining their custody. The Plaintiff disputes the Defendant’s eligibility to care for the children, citing that the children did not receive proper moral and religious education while in the Defendant’s care and that the children exhibited violent behaviour, unpleasant attitudes, and extreme stubbornness during the period when the Defendant left them with the Plaintiff’s mother.

3.    Furthermore, the Defendant, along with her new husband, took the children to a nightclub and exposed them to a social lifestyle. While the children were living with the Plaintiff, the eldest child was enrolled in a tahfiz school, but the Defendant took the eldest child back on 18 March 2017 and refused to allow the child to continue attending school. Meanwhile, the second child had their hair completely dyed blonde and was once given an alcoholic drink.

4.    The Defendant, on the other hand, claims that the children have been living with the Plaintiff’s mother since April 2016, after the Plaintiff’s mother and sister expressed their desire to care for the children. The Defendant asserts that the Plaintiff never requested to care for the children and only sought to visit them occasionally. During the period when the children were not under the Defendant’s care, the eldest child was separated and cared for by the Plaintiff’s sister, while the second child was cared for by the Plaintiff’s mother.

1.    Whether the Defendant is entitled to custody of the children?

(a) The Court in this case held that fundamentally, the Defendant, as the mother, is indeed the most suitable person to care for the children, given their age, in accordance with subection 82(1) of Islamic Family Law (State of Selangor) Enactment 2003 [“Enactment No.2 of 2003”]. This provision aligns with the view of Abd al-Karim Zaydan in his book al-Mufassal fi Ahkam al-Mar’ah Wa al-Bayt al-Muslim fi al-Syariah al-Islamiyyah, p. 9, Sunan Abi Dawud, Volume 2, Book of Divorce, Chapter on Who Has the Right to Custody of the Child, Hadith No. 2276, p. 397, and the opinion of Imam Taqiyuddin Abu Bakar Muhammad al-Husaini in his book Kifayah al-Akhyar fi Hall Ghayah al-Ikhtisor fi al-Fiqh al-Syafie, p. 531.

(b) Section 82(1) of the Islamic Family Law Enactment (Selangor) 2003 [Enactment No.2 of 2003] must be read together with subsection 85(1) of the same Enactment, which provides the following explanation:

“ Persons entitled to custody of a child

82. (1) 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.”

“ Duration of custody

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

(c)   The Court further referred to the view of the Shafi’i School of Thought, which outlines seven conditions that qualify a person to be a caregiver or custodian (hadhinah). This view clearly and explicitly aligns with Section 83 of the Islamic Family Law Enactment (Selangor) 2003, which states the following conditions:

(i)            Of sound mind: This meant that a person who was insane could not be a caregiver, except in cases where the insanity was rare and lasted only for a brief period, such as one day in a year.

(ii)           Free (not a slave): This meant that a person who was a slave to another was not eligible to be the custodian of their child.

(iii)          Muslim: This meant that a non-Muslim did not have the right to care for a Muslim child.

(iv)         Able to avoid committing prohibited acts in Islam, such as drinking alcohol or neglecting obligatory prayers. This meant that a corrupt (fasiq) person was not qualified to be a custodian.

(v)          Trustworthy: This meant that a person who was untrustworthy or a traitor could not be a custodian.

(vi)         Resident in the same area as the child.

(vii)        The child’s mother was no longer married, except to a mahram (non-marriageable kin) of the child, such as the child’s paternal uncle, provided the child’s father was agreeable or consented to this arrangement.

(d) The Court in this case decided that the Defendant met the requirements of a caregiver or custodian (hadhinah), as she was a Muslim, fully competent (mukallaf), of sound mind, and had never been convicted of any syariah or civil criminal offence.

(e)   In challenging the eligibility of a mother to custody of children who have not reached the age of discernment (mumayyiz), the Plaintiff must prove that the Defendant has lost the qualification to be the custodian of the children. This is because, in principle, the mother is the rightful guardian of her young children who have not yet reached the age of discernment. The Plaintiff’s proof must focus on matters that could disqualify the Defendant based on the provisions of Section 84 of the Islamic Family Law Enactment (Selangor) 2003, as follows:

“ How right of custody is lost

84. (The right of hadhanah of a woman is lost-

(a) by her marriage with a person not related to the child within the prohibited degrees if her custody in such case will affect the welfare of the child but her right to custody will revert if the marriage is dissolved;

(b) by her gross and her open immorality;

(c)  by her changing her residence so as to prevent the father from exercising the necessary supervision over the child, except that a divorced wife may take her own child to her birth-place;

(d) by being a murtad; or

(e)  by her neglect of or cruelty to the child.

(f)   Based on the Court’s examination, there were no allegations by the Plaintiff that align with the provisions of section 84 of the Islamic Family Law (State of Selangor) Enactment 2003. In other words, none of the five matters mentioned above apply to the Defendant. The Court referred to one of the five fiqh principles that has been agreed upon by the scholars and is stated in the work of al-Zarqa’, Sharh al-Qawaid al-Fiqhiyyah, p. 87, which explains:.

الأصل بقاء ما كان على ما كان

“”That which is original remains in its original state.”

(g) The fiqh principle above explains that the original state of things remains unchanged, meaning there is nothing in the Defendant’s situation that disqualifies her from being the custodian of the child. Therefore, the custody right should remain with her, as there are no factors that would affect her eligibility. As for the issue of the children’s religious education, it should be addressed together to ensure their well-being in both this world and the Hereafter.

(h)   However, the Court clarified that the Plaintiff’s right as the father to visit the child should be granted in order to maintain the relationship between the father and the children. The Court cannot deny these rights, as they are clearly outlined in the views of the fuqaha in the book Ahkam al-Usrah Fi al-Islam, in accordance with Section 88 of the Islamic Family Law (State of Selangor) Enactment 2003. This section specifies that a custody order must be subject to certain conditions, including paragraph (2)(d), which provides for the child to visit the parent who has not been granted custody 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 as frequently as the Court deems reasonable.

(i)     Since this case concerns the issue of permanent custody of the child, the Court has held the time and schedule for visits based solely on its discretion. To avoid difficulties in exercising the visitation rights, the Court believes it is appropriate to specify the time and days for such visits, so that the Defendant cannot present various excuses if the visitation schedule is set in a vague or open-ended manner. The Court also reminded the Defendant not to interfere or obstruct the child from meeting with the Plaintiff at the times and dates held by the Court. Any interference or obstruction may result in custody being granted to the other party, as stated in the Mausuah Fiqh Wa Qada’, Ahwal Syakhiyyah, Volume 3.

2.    The Court ordered that the custody of the children, named SMS ( and SMH, be granted to the Defendant (mother).

3.    The Court ordered that the Plaintiff (father) be granted visitation rights during the second and fourth weeks of each month. The Plaintiff shall pick up the children from the Defendant’s residence at 10 a.m. on Saturday and return them no later than 5:00 p.m. on Sunday. The Plaintiff must notify the Defendant in advance before exercising the visitation rights.

4.    The Court ordered that any third parties, including government agencies, specifically but not limited to the Immigration Department of Malaysia, Royal Malaysian Police, statutory bodies, and/or any other authorities, shall cooperate in executing this Court Order.

5.    Any failure to comply with the Order shall constitute contempt of Court, and the party may be committed to prison.

Key Take Away

2.    The Court’s decision reinforces the principle that, under Islamic Family Law (Selangor) 2003, the mother retains primary custodial rights over young children, particularly those below the age of discernment (mumayyiz). This aligns with the traditional Islamic jurisprudential view that mothers are best suited for the care of young children, except in instances where their fitness for custody is challenged and proven.