SKJ LWN TMFTI [2023] 3 LNS 8

Syariah High Court of Terengganu

Hadhanah application.  

1.    The Plaintiff and the Defendant were married on 14 May 2010 and divorced on 2 February 2021 through a single pronouncement of divorce.  It was a divorce outside the Court without the Court’s authorisation.

2.    Following that, the Plaintiff initiated legal proceedings at the Syariah High Court at Terengganu on 27 December 2022.  Based on the Statement of Claim, the Plaintiff asserted that after the divorce, one (1) Child named Tengku Nur Dini Qaisara binti Tengku Mohd Fuad resided with the Defendant.  In contrast, three (3) other Children named TMIZTMF, TTMHTMF, and TNAQTMF  lived with the Plaintiff.  There was no Court Order for the custody rights issued by any Syariah High Court for the Children.

3.    The Plaintiff claimed to be the most suitable guardian for all four Children, emphasising her status as the biological mother and the Children’s underage status.  The Plaintiff also argued that the overall welfare of the Children, particularly in terms of nutrition, safety, education, and health, would be better ensured if they were in the Plaintiff’s care.

4.    The Plaintiff further asserted that if the Plaintiff’s claim were granted, the Plaintiff believed that the relationship between the Defendant and the four Children would not have been adversely affected.  This is because the Plaintiff would allow for an appropriate visitation right to the Defendant, based on dates, times, and locations deemed suitable and reasonable by the Court in order to maintain familial ties and paternal affection with the Children.

5.    However, the case was referred to Majlis Sulh on 11 January 2023, in which both Parties had come to consensus for a mutual agreement to be recorded by the Court.  Following that, the case was heard before a Syariah High Court Judge.

2.    Whether the Plaintiff or the Defendant is more eligible for guardianship of the Children?

(a)   The Court referred to excerpts from the book “Al-fiqh al-Manhaji” by Dr. Mustofa Al-Khin and others, volume two, fifth edition, 1424H/2003M, published by Darul Qalam, Damascus, Syria, which mentions that-

“Hadhanah, in Syariah terminology, refers to the guardianship of someone who is unable to care for themselves and involves their upbringing through various methods that bring goodness following their development.  For young Children, the guardianship extends until they reach the age of discernment (mumayyiz).  Caring for and educating Children beyond the age of discernment until they reach puberty is not termed as hadhanah but is referred to as kafalah.” 

(b)   The Court found that hadhanah involved the care of children who are unable to manage themselves including the education and their upbringing.

(c)   The Court also referred to the book “Mughni al-Muhtaj,” Volume Three, Part Three, published by Darul Fikir, on page 425, authored by Al-Sheikh Muhammad Al-Khatib Al-Syarbini, which states the following:

“In Syariah terminology, hadhanah signifies the obligation to care for someone unable to self-manage, as they cannot distinguish between good and bad choices.  This includes scenarios involving small children or mentally incapacitated adults.  The duty also extends to providing education, fostering their successful development into virtuous individuals.  Moreover, it entails the responsibility of supplying them with sustenance, such as food and drink”.

(d)   Drawing from the texts as mentioned above, the Court determined that the Hukum Syarak underscores the paramount importance of prioritising the Children’s well-being in matters relating to hadhanah.  The Court found that the first, second, and third child had attained the age of discernment (mumayyiz), whereas the fourth child had not reached the same.   In general, the Children still needed someone capable to attend to their daily needs and affairs, ensuring their well-being, education, and personal safety.  This necessity arose since their tender age, as they could not independently manage their own life.

2.    Whether the Plaintiff or the Defendant is more eligible for guardianship of the Children?

(e)   The Court referred to the book “Kifayatul al-Akhyar” by Al-Imam Taqiyuddin Abi Bakar bin Muhammad.  In volume 2, page 93, in which it is mentioned as follows:

“Hadhanah, a form of authority, is typically bestowed upon women due to their innate qualities such as greater affection, adeptness in education, and patience in caring for children.  The financial responsibility for hadhanah lies with the father, resembling the obligation of financial support.  In cases of divorce, the mother holds a higher entitlement to the right of hadhanah over the child compared to the father and other women, provided specific conditions are met.”

(f)     The Court in this case referred to the case of Noornita Kamaruddin v. Faeiz Yeop, [2004] CLJ (Sya) 198.

“The Syariah Appeals Committee in Selangor ruled that the appeal was dismissed, and the custody of the child (Norfeeza Binti Faeiz) was awarded to her father, Faeiz Bin Yoep.  The child was permitted to visit and reside with her mother, Noornita Binti Kamaruddin”.

(g)   In this particular case, TNDQTMF , aged 11, TMIZTMF, aged 9, and TMHTMF, aged 8, have all reached the age of discernment (mumayyiz).  Only TNAQTMF, aged 4, has not yet attained the age of discernment and cannot make any preference.  Nonetheless, the Court emphasised the primary consideration of the welfare and best interests of the Children.  The parties involved have also reached a mutual agreement, as documented by the Court.

(h)   In light of Hukum Syarak, legal provisions, case precedents, and the factual circumstances in this case, should custody rights were awarded to either the Plaintiff or the Defendant, both parties were not prevented from securing rightful access for any meeting, visitation, staying overnight, and celebrating holidays together with the Children.

1.    Upon the mutual agreement of the Parties achieved in the Sulh session, the Plaintiff and the Defendant were given the privilege to visit, take out, and stay overnight with the Children at any suitable times not under their respective guardianship provided that they notified the guardian of the respective Children in advance.  This arrangement was established without compromising the well-being and education of the said children.

2.    The Plaintiff and the Defendant in their mutual agreement also agreed that the Plaintiff and the Defendant were give the right to spend time with the Children not under their guardianship during emergencies, deaths, and significant family events involving themselves or their immediate family members.  However, as a condition, they were required to inform the guardian of the respective Children in advance.

Key Take Away

1.    Al-sulh signifies a formally sealed agreement designed to settle disputes or conflicts among parties practicing the Islamic faith.  Subsequently, scholars in Islamic jurisprudence define ‘Al-sulh’ as a contractual agreement or mutual pact entered voluntarily and with mutual consent, aiming to achieve reconciliation between two or more disputing parties.

2.    Irrespective of the nature of the mutual agreement between the parties concerning the guardianship of their Children, the Court must still adhere to the fundamental principles that require scrutiny in determining a child’s guardianship according to Hukum Syarak and legal statutes. The paramount consideration remains the welfare of the child.