Islamic Juris Child Custody

7/28/2019 Islamic Juris Child Custody

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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

Manual Undang - undang Keluarga Islam , Abdul Monir Yaacob & Siti Shamsiah Md Supi .2Narrated from Abdullah bin 'Amr ibn al-'As , transmitted by Ahmad and Abu Dawud with a good

chain of transmission .


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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

Manual Undang - undang Keluarga Islam , Abdul Monir Yaacob & Siti Shamsiah Md Supi .4Fiqh of Muslim Family , by Hassan Ayyoub .

5Narrated by Abu Daud


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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 .

6Transmitted by Abu Dawud


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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).

7

Section 82 (2), Islamic Family Law (Federal Territories) 19848Section 82 (3), Islamic Family Law (Federal Territories) 1984

9Section 84 (2), Islamic Family Law (Federal Territories) 1984


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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

10[1983] 1b MLJ 40

11[1998] 6 MLJ 618


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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.

12Mal Case No: 04100-028-0031-2009, Shariah High Court, Malacca

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Islamic Juris Child Custody