SNWA v KAR [2022] 3 SHLR 12

SNWA v KAR [2022] 3 SHLR 12

Syariah High Court (Selangor)

Child Custody of Tender Age

2.  The couple were divorced at the Syariah Subordinate Court of Shah Alam with the permission of the Court on 12 March 2020.

3.  There was no custody order in place for both children after the divorce.

4. Therefore, the Plaintiff filed an application to the Syariah High Court (Selangor) for an order of custody rights after the divorce of their two (2) children.

Ratios

(a)  In deciding the custody of the two (2) children, the Court referred to the identity card of NHKA and NAKA.

(b)  By considering the documents presented, the Court found that the ages of the children have not reached the age of discernment (mumaiyiz).  The child’s condition were in the age range of five (5) years old and four (4) years old when the case was filed.

(c) The Court referred to Imam Taqiyuddin Abu Bakar bin Muhammad Al-Husaini’s view in the book of Kifayah Al-Akhyar, which states that women are generally better suited to take care of young children due to their affection, patience, and involvement with them. The father is responsible for financially supporting the children’s care (hadhanah) as it is as crucial as providing for their needs.   If a man divorces his wife, the mother typically has a stronger claim to the children’s hadhanah than the father or any other woman, under certain conditions.

(d) The Court also referred to Section 82 (1) of the Enactment No.2 of 2003, which it must be read together with Section 85(1) of the same Act.

“Section 82. Persons entitled to custody of a child.

(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.

……………………….

  Section 85. Duration of custody.

(1)  The right of the hadinah 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.”

(e)  As provided in Section 82 (1) of the Enactment No.2 of 2003, it explains the mother’s position for the right of custody which emphasises her priority in terms of the child custody, whether the mother is still within the marriage or after the dissolution of the marriage.   However, it is subjected to the qualifications or conditions set under Section 83 of Enactment No.2 of 2003, as follows:

“Section 83. Qualifications necessary for custody.

“A person to whom belongs the upbringing of a child, shall be entitled to exercise the right of hadhanah if—

(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.”

(f) According to the perspective of the Shafi’i school of thought, there are seven (7) conditions that enables someone to become a caregiver or “hadhinah,” and this viewpoint aligns clearly with Section 83 of the Enactment No. 2 of 2003, which are as follows:

     (i) Being of sound mind, means that a person who is insane does not have the right to be a caregiver, except in extremely rare cases and for very brief periods, such as one day a year.

    (ii) Being free, means that a person who is a slave to another does not have the right to be a caregiver for their child.

     (iii) Being a Muslim means that a non-Muslim does not have the right to care for their Muslim child.

    (iv) Being capable of abstaining from committing religiously prohibited acts, such as consuming alcohol or neglecting obligatory prayers. This means that a person who engages in sinful behaviour (fasiq) does not have the right to be a caregiver.

     (v) Being trustworthy or reliable, which means that a person who cannot be trusted or is treacherous does not have the right to be a caregiver.

      (vi)  Residing in the same locality as the child being cared for.

     (vii) The mother of the child should not be married, except to someone who is related to the child by blood, such as the child’s paternal uncle.

(g) The situation regarding the children in dispute in this case involves minors who are not yet “mumaiyiz,” specifically aged five (5) and four (4) years old at the time the case was filed.    The Court referred to the case of Faridah Hanim bt Omar v Abd Latif Ashaari, JH XXII (1), page 33, which explains-

“In the view of this Court, the Plaintiff meets the conditions under Islamic Law and the legal requirements to qualify as the “hadhinah” and does not have any disqualifying factors to be a lawful guardian for her three children.  The Defendant has failed to convince the Court otherwise regarding the conditions and qualifications that should be disqualified. This Court believes that the Plaintiff should be granted the right to be the “hadhinah” for her three children.”

                                                         [Emphasis Added]

(h) By applying the principle above, the Court held that the custody should be granted to the Plaintiff as the mother.   It is because Section 82 of Enactment No.2 of 2003 explained the mother’s position in custody and her priority in terms of childcare, no matter whether the mother is still in the marriage or after the dissolution of the marriage.

(i) The Court also decided that the well-being of the children should be a top priority, and the custodian should not be changed frequently as it can have a detrimental impact on their mental and emotional well-being.    In this instance, the children have been with their mother since the divorce.

(j) As such, in light of the children’s welfare, the Court was of the view that the most appropriate approach is to grant custody to the mother, while still preserving the rights of both parties to visit and spend time with the children.

(k) Additionally, the Court found that the Defendant had been unemployed for a year and could not ensure the children’s well-being.

1.  The determination of the right of custody for the children who have not attained the age of discernment shall be given priority to the biological mother if the mother fulfils the conditions as hadhinah based on the Islamic law.

2.  Ultimately, Islam recognized the special role of mothers in providing care, nurture and emotional support to their children, especially during the early years of life.  This maternal bond is seen as crucial for a child’s emotional and psychological well-being.