Custody and guardianship of the child

In this case , the rights to custody and guardianship of the child is also discussed . Datuk Hakim has expressed his wish to obtain custody and guardian ship of the son , Daniel . Madam Azura objected to this and said that both custody and guardianship of the two children including another daughter , Dania . Daniel is currently 8 years old and Dania is 6 years old .

Rule in Islam in the matter of custody and guardianship of child in Islam

In Islamic family law , the general rule is that the mother will have priority over the children after divorce . This is the rights of the mother and these rights can only be terminated when there is a reason which terminates her rights to custody and guardianship of the child or when the child has reached the age where he or she is capable of making a decision on whether he or she wants to follow the father or the mother1.

Evidence of the mother having priority regarding rights of the custody of a child over the father can be seen in the Hadith of Rasulullah SAW . It is narrated that once there was a woman who was divorced from her husband and during their marriage they had a child which is a boy . The husband wanted to take the child away from her to care and raise the child . The woman came to Rasulullah to seek advice and said :

"O Messenger of Allah ! This is my son ; for him my womb was a vessel , my breast a drink , and my lap a bedding , and his father has divorced me and wants to take him away from me ."

After listening to her , Rasulullah SAW said : "You have more right to keep him unless you get married ."2
1 2

Manual Undang - undang Keluarga Islam , Abdul Monir Yaacob & Siti Shamsiah Md Supi . Narrated from Abdullah bin 'Amr ibn al-'As , transmitted by Ahmad and Abu Dawud with a good chain of transmission .

Another reason why the mother has priority of the custody of her children is that the woman is deemed to be more able to care for the children as they are more patient with the child and has more time to take care of child . The mother also has characteristics which are more suitable in raising a child , such as being more sensitive towards the needs of the child , more soft and loving to the child and are close to their child since birth3. It is narrated that Abu Bakar told Umar :

"The mother is more sensitive , more subtle , more loving , more friendly , better and more caring towards her children . That is why the mother has more rights towards her children , as long as she is not married yet ."

By looking at the narration given , the rights to custody of the child will be for the mother , which is Madam Azura , but there is another rule which must be followed to determine who shall be the one who is entitled to rights of custody of the child . The rule is that if the child has reached the age of mumaiyiz , which is the age of 7 , he or she is entitled to have the freedom to choose whether he or she wants to follow the mother or the father and the child will be kept by whoever he or she chooses , which is the view of most of the Prophet's companians and also view of Imam Shafi'i4 . This rational is based on the Hadith of Rasulullah SAW :

"Wheras Rasulullah SAW has asked a child who has reached the age of mumaiyiz to choose whether to stay with the father or the mother ."

It is narrated by Abu Hurairah :

"A woman approached Rasulullah SAW for advice and said : "O Rasulullah ! My husband wants to take away my child from me whereas he is the one who fetches water for me from the well and he is very useful to me" . Rasulullah SAW then asked the child :"This is your father and this is your mother , choose whoever you wish to follow ." The child then choose his mother and so the mother took her child away ."5

3 4

Manual Undang - undang Keluarga Islam , Abdul Monir Yaacob & Siti Shamsiah Md Supi . Fiqh of Muslim Family , by Hassan Ayyoub . 5 Narrated by Abu Daud

In this narration , it shows that the child who has reached the age of mumaiyiz has the right to choose to follow either the mother or the father .

Applying the authority stated , in this case Daniel is aged 8 years old and therefore he has the right to choose whether he wants to follow Datuk Hakim or Madam Azura and whoever he wishes to follow and the one he choose will be the one to have rights of custody over him . However , for the case of Diana , since she is only 6 years old of age , therefore she is deemed not fit to make a decision by herself since she is has not reached the age of mumaiyiz and the custody of Dania is confirmed to be the right of Madam Azura .

Although the situation regarding custody of the children is favourable to Madam Azura , she must still make sure that she does not lose her rights over custody of both her children . In Islamic family law , it is possible for the mother to lose custody of her children disregarding the fact that the children has reached the age of mumaiyiz or not . For example , if the mother remarries to another person , then her rights of custody over her children will be terminated . This is explained in the Hadith of the Rasulullah SAW as narrated by Abdullah bin 'Amr ibn al-'As . He narrates that Rasulullah SAW was approached by a woman who was divorced from her husband and they had a child . The husband wanted to take the child away to care for the child . She told Rasulullah SAW :

"O Messenger of Allaah, my womb was a vessel for this son of mine and my breasts gave him (milk) to drink, and my lap was a refuge for him, but now his father has divorced me and he wants to take him away from me. The Messenger of Allaah (peace and blessings of Allaah be upon him) said to her: You have more right to him so long as you do not remarry.6

According to this Hadith , as long as Madam Azura is not maried to another man , then her rights of custody over Daniel and Diana will not be terminated .

Transmitted by Abu Dawud

Islamic Family Law and Decided Cases

To decide who is entitled to get the right of custody and guardianship, the Islamic Family (Federal Territories) Act 1984 needed to be referred. Section 81 (1) of the Act provides that 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. This means that Madam Azura should be the 1st person to be considered in having the right of custody even after the marriage has been dissolved. However, the right of custody will be passed to other people stated under the Act if the court opines that the mother is disqualified under the Islamic law from having the right.7 If Madam Azura is not qualified, Datuk Karim will be the second person to get the right after the maternal grandmother of their children. Other than that, the man who wants to get the right of a daughter must be a muhrim who stands to her within the prohibited degrees of relationship.8

In order to be entitled to the right of custody, there are certain requirements needed to be fulfilled. Section 82 states that a person to whom belongs the upbringing of a child, is entitled to the right of custody if she is a Muslim, having sound mind and not below an age that qualifies her to bestow on child the care, love and affection that the child may need. It also provides that she must have good conduct from the standpoint of Islamic morality and lives in a place where the child may not undergo any risk morally or physically. If Madam Azura has fulfilled the above requirement, then she can ask for the right of custody.

According to section 84 (1), the right of custody of a child will terminate when a son is 7 years old. In this case, Daniel is now 8 years old and he has reached the age of discernment, so Madam Azura cannot get the right of custody of Daniel. However, the child who has reached the age of discernment can have the choice of living with either of the parents,9 so Daniel can choose to live with Datuk Hakim or Madam Azura. However, the right of custody of Dania can be granted to Madam Azura since she hasnt reached the age of nine years as required by section 84 (1).
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Section 82 (2), Islamic Family Law (Federal Territories) 1984 Section 82 (3), Islamic Family Law (Federal Territories) 1984 9 Section 84 (2), Islamic Family Law (Federal Territories) 1984

Apart from that, Madam Azura must comply with certain conditions if she is given the right of custody. Referring to section 83, the right can be set aside if she marries 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 will revert if the marriage is dissolved or neglect the child cruelly. The section also provides that the right is lost by a womans gross and open immorality, abjuration of Islam or changing her residence 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. Therefore, Madam Azura must follow these rules in order to keep her right of custody.

The welfare of a child is the most important factor to be considered in deciding the right of custody, as laid down in the case of Myriam v Mohamed Ariff.10 This was a case where a mother applied to the court for the custodial right of a 8 year old daughther and a 3 year old son. The court has decided that according to Islamic principles, the right should be given based on the childs welfare to ensure a better life for him. The ability to take good care of the child and raise a family is also considered for the sake of the child, so the right will be given if the parent can fulfill such conditions. The custodial right of that 8 year old daughther was granted to her father because he has stable income and was able to provide a good growing environment for her. So Madam Azura has to look at these factors if she intends to get the custodial right. Abdul Rahman Bin Shafiee v Hasma Bte Senawi11 is another case relating to the right of custody where the appellant had filed an application to the court to get the custodial right of his 9 year old son but he was failed in his action. His son was living a good life under the custody of his aunty and staying happily with his cousins. Factors to be taken into account are the financial position, moral conduct and ability to give a child love and affection. The son had attained the age of discernment, he was given choice to choose who he wanted to live with, and the fact showed that he could live well with his aunty family so the right was not granted to the father. In the present case, Datuk Hakim is spending most of his time in Australia, so his ability to
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[1983] 1b MLJ 40 [1998] 6 MLJ 618

take care of his children is in question. If he is not able to do so, Madam Azura is having a good chance to get the right of custody. In another unreported case,12 a father applied for the custodial right of his three children after the divorce and he was given the right of custody of his eldest and second children. The eldest child who had attained the age of discernment chose to live with his father without any influence and doubt, therefore the court granted the right to the father. Even though the second child hadnt attained the age of discernment, but the child had been living well with his father for a long time, the court found that it was more appropriate to grant the right to the father despite the right should be given to the mother. The custodial right of the youngest child was granted to the mother because the child was under her custody all the time and hadnt reached the age of discernment. Therefore, Madam Azura is possible to get the custodial right of her daughter based on the law and the fact that she is still very young to get more care from her mother. If refer to this case, the living condition and the childs welfare will be crucial factors to decide the right of custody of Daniel since he is given the option to choose whether he wants to live with his mother of father.

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Mal Case No: 04100-028-0031-2009, Shariah High Court, Malacca