LAW 605 - FAMILY LAW 1 (ISLAMIC)

Presented by:
MUHAMMAD AMIR ZAINUL MUTTAQIN BIN MOHD ZAMRI (2016239676)
NUR SAKIENAH BINTI KHAIRUDDIN (2016239556)
Date: 31/7/2018
- CUSTODY (HADHANAH)-

NORASID BIN JERAN V AZILAWATI BINTI JUSOH

2016 4 ShLR

Shariah Court Of Appeal (Shah alam)

20TH JUNE 2014
Facts

 The applicant and the respondent divorced on 10 February 2014 and during
the marriage, the parties had three children. Upon the application and
agreement by both parties, the applicant and the respondent’s custodial rights
over the children were determined by the children’s choice.
 The first and second child chose to live with the applicant while the third child
who was four chose to live with the respondent. A hadhanah order was issued
by the trial judge on 28 March 2014 based on the choices made by the
children.
 This action was filed by the applicant to review the reasonableness, in view of
Hukum Syarak, relating the said order based on the choices of the children,
including the four year old.
Issue

The issue that arises is whether the trial judge’s order in

allowing the third child who was four years old to choose
was consistent with the codified written laws and Hukum
Syarak.
Held

Court,

1. Allow applicant claim

2. Order rights of hadhanah for the third child to the
applicant and quashed decision in High Court.
Judgement

S 84(2) of the Islamic Family Law (Federal Territories) Act 1984,

for a child who has reached the age of mummaiyiz, custodial
rights are granted based on the choice of the children
themselves. Based on Hukum Syarak, it is clear that the age
for children who have reached mumaiyiz is seven years old.
During the interview and when the choice was made, the
third child was four years old and clearly did not exceed
seven years old. Therefore, the third child had not reached
the age of mumaiyiz and was not entitled to make a choice.
 Section 81 Persons entitled to custody of a child:
 (1) Subject to section 82, the mother shall be the best entitled to custody of an infant during the marriage
and after its dissolution
-----Section 82: Qualification of custody:
Muslim,
sound mind,
of an age that qualifies her to give care, love and affection need by the child,
of good conduct based on Islamic morality
lives in the place where child may not undergo any risk morally or physically.
 (2) where court in opinion that mother is disqualified, thus custody will pass following order of preference:
(a)Maternal grandmother
(b)Father ……..
 Dr Abdul Rahman al-Sabuni, 2005M/1426H, Nizam al-Usrah wa
Hill Musykilatiha fi Dau al-Islam, Dar al-Fikr al-Muasir, Beirut,
page 207
 Two stages of the children’s rights
Firstly during period where the child needs care and attention
which only a woman could give perfectly.
Secondly, where hadhanah is shifted to one that can manage
the child’s education which is the wali.
 Conclusion

As a conclusion, the trial judge has erred in his judgement in

solving the dispute regarding hadhanah by way of giving the
third child the right to choose as it is against Sec 84 (2) of
Islamic Family Law Act Federal Territories 1984 and Hukum
Syarak as the age of child considered to be mummayiz is seven
years old.
Comments/opinion

 First and foremost, we agree towards the decision of the Shariah Court of Appeal as
judgement is based on the needs of the children.
 A maternal bond is the relationship between a mother and her child. Mother has borne
the child’s burden during pregnancy, has undergone birth pains in delivering the baby,
has sacrificed her own comforts to provide comfort to her children, has looked after them
and felt worried for their well-being. Thus, separating them during the child infancy would
cause a harsh impact on both mother and child.
 Next, as for the children that are mummayiz, it is reasonable and logical for them to be
given a choice with whom they want to stay with. Their answer are most likely based on
their attachment to either parent and that will help them to adapt with the separation
itself.
 Conclusion: A divorce should separate the legal relationship between a man and a
woman but should never be allowed to be the instrument of separating the child from
their parents.