Mus­lim ju­rists are unan­i­mous that when a mar­riage be­tween Mus­lims is dis­solved, the right of cus­tody of an in­fant will be given to the mother

New Straits Times - - Opinion - The writer is deputy CEO, In­ter­na­tional In­sti­tute of Ad­vanced Is­lamic Stud­ies (IAIS) Malaysia

CHILD cus­tody refers to the up­bring­ing of chil­dren that in­cludes the re­spon­si­bil­ity to pro­vide pro­tec­tion, love, care, ed­u­ca­tion, shel­ter and man­age­ment to the child. Gen­er­ally, in de­ter­min­ing the le­gal cus­to­dian of a child, the court will first and fore­most en­sure that the child’s wel­fare is well-pro­tected.

In Malaysia, how­ever, child cus­tody is gov­erned by two sep­a­rate laws for non-Mus­lims and Mus­lims. For non-Mus­lims, it is the Law Re­form (Mar­riage and Di­vorce) Act of 1976 (Act 164), while for Mus­lims, they are the Is­lamic Fam­ily Law En­act­ments (of the re­spec­tive states) and the Is­lamic Fam­ily Law Act for Fed­eral Ter­ri­to­ries. The civil court op­er­ates on the for­mer, while the syariah court op­er­ates on the lat­ter laws.

Prob­lems arise when one of the spouses in a mar­riage con­verts to Is­lam be­cause con­ver­sion is recog­nised as one of the grounds to dis­solve mar­riage by both Act 164 and the Is­lamic Fam­ily Law/En­act­ments. Also, when one of the par­ties is a Mus­lim, both ju­di­cial sys­tems in Malaysia have ju­ris­dic­tions on the mat­ter, thus caus­ing a power over­lap.

Both Is­lamic law and civil law, how­ever, agree that in de­ter­min­ing the cus­tody of a child, the in­ter­est or wel­fare of the child is the para­mount con­sid­er­a­tion.

Fac­tors that are taken into con­sid­er­a­tion in de­ter­min­ing the in­ter­est of the child, to a cer­tain ex­tent, par­al­lel each other in both Is­lamic law and civil law, ex­cept in the mat­ter of re­li­gion. For in­stance, both Is­lamic and civil law con­sider the age and gen­der of the child, the wishes of the child, the abil­ity to bring up the child and the con­duct of the par­ties.

In Is­lamic law, Mus­lim ju­rists are unan­i­mous that when a mar­riage be­tween Mus­lims is dis­solved, the right of cus­tody of an in­fant will be given to the mother. The mother has a pre­rog­a­tive right, since a mother is nat­u­rally not only more tender, but also bet­ter qual­i­fied to cher­ish a child dur­ing in­fancy.

The mother and her fe­male an­ces­tors are pre­ferred to be the cus­to­di­ans for the sole pur­pose of serv­ing the best in­ter­ests of the child.

Aside from wel­fare, re­li­gion is also an im­por­tant cri­te­rion in de­ter­min­ing child cus­tody. Ibn Qu­damah, a well-known Han­bali scholar of the 12th cen­tury, stressed the im­por­tance of re­li­gion in the is­sue of cus­tody. He said “cus­tody is aimed at look­ing af­ter the child, so it should not be given in a way that will be detri­men­tal to his wel­fare and his reli­gious com­mit­ment”.

Mus­lim ju­rists have dealt with this is­sue in dif­fer­ent ways. Ac­cord­ing to Syafi’i and Han­bali schools of law, the cus­to­dian must pro­fess the re­li­gion of Is­lam, oth­er­wise he or she will not gain cus­to­dial rights of the child. This de­ci­sion rests on the as­sump­tion that if a child is given to a non-Mus­lim cus­to­dian, he or she would in­flu­ence the child’s be­lief and the child would not be brought up ac­cord­ing to the re­li­gion of Is­lam. Pre­serv­ing and pro­tect­ing the child’s re­li­gion is also one of the pri­mary ob­jec­tives pre­scribed un­der the Maqasid alS­yariah (The higher ob­jec­tives of syariah).

The Hanafi and Ma­liki schools on the other hand, gave a dif­fer­ent rul­ing. Pro­fess­ing the re­li­gion of Is­lam is not a re­quire­ment to be­come a cus­to­dian.

There­fore, the non-con­vert par­ent has an op­por­tu­nity to gain the right of cus­tody of their chil­dren. How­ever, there are re­stric­tions to this. For ex­am­ple, the cus­to­dian should not in­flu­ence their chil­dren on mat­ters per­tain­ing to reli­gious be­lief, ex­cept for Is­lam. Other re­stric­tions in­clude pro­hi­bi­tion from tak­ing the chil­dren to non-Mus­lim places of wor­ship, from teach­ing them re­li­gion other than Is­lam and from ask­ing them to eat pork or to con­sume al­co­hol.

The Hanafi and Ma­liki ap­proach in cus­tody cases can be seen in the im­ple­men­ta­tion of cus­to­dial laws in some Mus­lim coun­tries like Al­ge­ria, Kuwait, Tunisia and Morocco, which al­low non-Mus­lim par­ents to be­come cus­to­di­ans, but with strict conditions.

Malaysia, how­ever, has adopted a strict ap­proach to the cus­tody is­sue. For ex­am­ple, Sec­tion 82 of the Is­lamic Fam­ily Law (Fed­eral Ter­ri­to­ries) Act 1984 (IFLA 1984) states that the first qual­i­fi­ca­tion nec­es­sary for a cus­to­dian is that he or she must be Mus­lim.

Sev­eral prob­lems tend to arise from this. It has been ar­gued that Malaysia’s dual sys­tem en­ables a spouse, who pre­vi­ously had a civil mar­riage, to con­vert to Is­lam and use the Syariah Court as a means to claim cus­tody of their chil­dren, while evad­ing the fi­nan­cial re­spon­si­bil­i­ties im­posed to the hus­band un­der the civil law.

For that rea­son, the In­ter­na­tional In­sti­tute of Ad­vanced Is­lamic Stud­ies (IAIS) Malaysia has in its po­si­tion pa­pers on “Con­ver­sion in Malaysia: Is­sues and Re­form Pro­pos­als (2012)” and “Penukaran Agama Kanakkanak: Isu dan Cadan­gan (2016)” pro­posed pol­icy re­forms re­lat­ing to con­ver­sion in Malaysia.

Among the recommendations are, firstly, to en­sure that the is­sue of con­ver­sion does not come in the way of en­sur­ing the child’s wel­fare and the en­su­ing cus­to­dial re­spon­si­bil­i­ties by the dis­put­ing par­ents. Sec­ondly, to amend Sec­tion 51 of the Act 164 to give ei­ther party of the mar­riage to file a pe­ti­tion for di­vorce. Thirdly, to es­tab­lish a spe­cial branch of ju­di­ciary with mixed ju­ris­dic­tion where both syariah and civil law judges can sit and ad­ju­di­cate cases of con­ver­sion and reli­gious iden­tity of the child.


In cus­tody cases, both Is­lamic and civil law con­sider the age and gen­der of the child, the wishes of the child, the abil­ity to bring up the child and the con­duct of the par­ties.

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