Sheikh Hisham bin Sheikh Muhammad Belweil v Tha’Era bt Yousef [2017] 2 SHLR 1

Syariah Court of Appeal (Selangor)

Hadhanah Interim Order

2.   On 25 January 2011, the Respondent filed the fasakh application against the Applicant at the Syariah Subordinate Court Petaling Jaya, which was still pending and unresolved.

3.    Apart from the application for fasakh (divorce), the Respondent also, on the same date, filed a custody application against the Applicant in the Syariah High Court of Shah Alam, which was still pending and unresolved.

4.     In relation to the custody claim, the Respondent also filed an interim custody application in 2011.

5.    Meanwhile, on 1 March 2011, the Applicant filed an ex- parte application for an interim visitation order.  The Applicant’s application was directed by the trial judge to be heard as inter parte, along with the Respondent’s application for an interim custody order.

6.   On 24 May 2011, both interim cases were resolved by mutual agreement and the trial judge issued the following orders as follows (interim orders):

(i)  Temporary custody of a child named Areetha bt Sheikh Hisham, MyKid No. 061220-10-0994, is granted to the Applicant (Tha’era) as the biological mother.

       (ii)   Visitation rights are granted to the Respondent (Sheikh Hisham), where the Applicant will send the child or a representative to the address No. 56-1, Laman Impian, Jalan PJU 3/21, Kota Damansara, 47810 Petaling Jaya, Selangor, at approximately 11 am and will be returned by the Respondent or their representative to the Applicant’s home at No. 5, Jalan Kenyalang, 11/4C, PJU 5, Kota Damansara, Selangor DE, by 5 pm on the same day.

(iii)    The Parties (Respondent) are allowed to file an application for overnight custody with the child after one month from the date of this order; and

(iv)   The order is effective from such date until the main case is decided or until another order is issued.

7.    Accordingly, after the issuance of the interim order, the Applicant filed an ex parte application for an interim custody and joint visitation order on 2 November 2011.

8.     The Applicant filed such application based on his belief that the interim order dated 24 May 2011 was only effective for one month, and after that, he could take appropriate actions.

9.    However, the Respondent did not agree with the application.  In response,  she filed an early objection to set aside the interim order, arguing that the interim order dated 24 May 2011 was based on mutual consent.

10.    The proceedings for the Applicant’s interim order application were suspended by the trial judge when the Applicant filed a review to the Syariah Court of Appeal to review the interim order dated 24 May 2011.  The Applicant claimed that the interim order contradicted the facts that were agreeable by the Applicant.

1.     Whether the Syariah Court of Appeal has the jurisdiction to stay the order at the Syariah High Court by way of review proceeding?

2.     Whether the interim order dated 24 May 2011 which was based on consent is in contradiction with what the Applicant had agreed to during the discussion between both parties?

1.     Whether the Syariah Court of Appeal has the jurisdiction to stay the order at the Syariah High Court by way of review

(a)  The principle of staying order has been provided In the case of Hamzah bin Zainuddin v Noraini bt Abdul Rashid [2008] 2 SHLR 79, in which the Court referred to the story of Zubyah Al-Asad regarding Saidina Ali from the book of Akhbar al-Qudah, page 95-97.

(b)  In the book of Akhbar al-Qudah, page 95-97, it states that-

“When Saidina Ali became the qadi (judge) in Yemen during the lifetime of the Prophet Muhammad PBUH, he imposed a penalty for those who entered a lion trap.  The first person who fell into the trap was liable for one-fourth of the diyat (compensation for accidental killing), the second person for one-third of the diyat, the third person for one-half of the diyat, and the fourth person received the full diyat.

This diyat was applied to the tribes around the lion trap because they were responsible for the first person falling into the trap, and then the second person was pulled in by the first, the third by the second, and so on, resulting in all of them dying.

The first person received one-fourth because he caused three deaths, the second received one-third for causing two deaths, the third received half because he caused one death, and the fourth received full diyat because he did not cause anyone’s death.  Some of these tribes were not satisfied with Saidina Ali RA’s judgment.  Other narrations mention that some tribes accepted Saidina Ali RA’s decision, while others disagreed.

Given the situation, Saidina Ali RA said, “I am passing judgment among you with a specific penalty.  If you are not content with this judgment, then it will be prevented from being executed among you.  Whoever is prevented from it, it is not his right until the decision of the Prophet Muhammad (PBUH)…”

They agreed with Saidina Ali RA’s suggestion to present the case to the Prophet Muhammad PBUH.  During the Hajj season, they went to Mecca to meet the Prophet Muhammad PBUH and presented their appeal at the Masjid al-Haram, near the Maqam Ibrahim.  The Prophet Muhammad PBUH agreed to hear their appeal, and his decision concurred with Saidina Ali RA’s judgment.”

(c)  By applying to the case, the Court was of the view that no clear provision stated that a higher court has the power to stay the order of the lower court by way of review proceedings.

(d)  However, the practice of staying an order executed by the Syariah court (the Court staying an order which it granted) is consistent with the principles of staying orders under Hukum Syarak, as long as the court that grants such stay is the same court that issued the order relating to that stay.

(e)  Therefore, the Court found that it would not be appropriate for the Court to stay the order by way of review proceedings since the judicial review proceedings, in principle, were carried out ex-parte.

(f)   Therefore, the Court held that it would be equitable to determine the judicial review proceeding through a hearing of both parties in an application for a stay of order in the Syariah High Court that originally issued the said order.

2.   Whether the interim order dated 24 May 2011 which was based on consent is in contradiction with what the Applicant had agreed to during the discussion between both parties

(a)   The Court referred to the interim order dated 24 May 2011 which the temporary custody and visitation rights were granted based on the statements from both parties’ lawyers.

(b)   On overnight custody, the trial judge issued an order as suggested by the Respondent’s lawyer, which stated in the term (3) of the interim order as follows:

“The parties (Respondent) are allowed to file an application for overnight custody with the child after one month from the date of this order;”

……….

(c)    However, in the appeal, the Applicant contended that his agreement with the Respondent based on “one month” after the interim order was unrelated to the overnight custody.  However, it referred to the duration of the interim order itself, which was effective for only one month.

(d)    Hence, the Court also referred to the statement by the Applicant, which he had made before the trial judge.  The Applicant stated to the trial judge as follows:

“I agree to this arrangement for one month, after which I will take appropriate action for my child.”

(e)   Therefore, the Court found that the Applicant’s statement became evidence that signified that he only agreed to the temporary custody and visitation terms for a duration of one month.

(f)      The Court was of the view that, firstly, the Applicant did not clearly state the specific terms he agreed to.

(g)    Secondly, the Court decided that the Applicant’s statement contradicted the original agreement reached during the discussion between both parties.

(h)    The only term that both lawyers did not agree upon is pertaining to overnight custody, specifically whether the Applicant is required to file a new application for overnight custody or whether he can exercise that right after one month without needing a new one.

(i)   The Court further elaborated that the extensive discussion between both parties means that all parties understood what was agreed upon and what was not.

(j)    Therefore, when the issue of overnight custody became a dispute, it was indirectly understood by all parties in the case that the “one month” period mentioned in the Applicant’s statement referred to the issue of overnight custody.

(k)    However, when the Applicant stated that the “one month” refers to the duration of the agreement’s terms, it means that the Applicant changed his mind without informing his lawyer and the opposing party.

(l)     Furthermore, the application to limit the duration of the interim order to only one month does not align with the principle of an inter parte interim order, which should remain in effect temporarily until the main cause of action or case is decided.

Key Take Away

2.     If the lower court’s decisions are not respected, there could be a floodgate of appeals to the higher courts, causing delays and burdens on the judicial system.

3.     Respecting lower court decisions helps to maintain efficiency and timely resolution of cases.