Welfare of the Child as the Paramount Consideration in Custody Cases: A Comparative
Study of Civil and Islamic Laws in Malaysia.
Dr. Normi Abdul Malek ⃰
Abstract
In general, both civil and Islamic laws are in agreement; that the welfare or interests of
the child are the paramount consideration in deciding disputes relating to custody.
Factors such as physical and emotional well-being, age, wishes of both the children and
parents, preservation of status quo, conduct of the parties and religion are among the
factors that will be taken into consideration in determining the interests of the child.
However, in details, the laws might give different emphasis to the different factors which
determine the interests of the child. This paper attempts to discover to what extent civil
and Islamic laws are similar and to what extent they differ in considering the above
factors. The reason behind the differences will be highlighted.
Introduction
In Malaysia, the law of custody with regard to non Muslim is governed by the Law
Reform (Marriage and Divorce) Act 1976 (LRA) and Guardianship of Infant Act 1961
(GIA). As these statutes are based on English law, common law cases are also frequently
referred by the judges. As to the Muslims, they are governed by Islamic law in general
and various state enactments applicable to them, in particular. For the purpose of this
discussion, Islamic Family Law (Federal Territories) Act 1984 (IFLA) will be utilized.
This paper highlights each of the factors considered by both courts - civil and shariah, in
order to bring about the ultimate purpose of the law of custody: that is the welfare or
interests of the child.
1
Welfare of the child as the paramount consideration
Both civil and Islamic laws emphasise that the interests or welfare of the child are the
most important goal in custody cases. Section 88(2) of the LRA provides that:
In deciding in whose custody a child should be placed the paramount
consideration shall be the welfare of the child …
Section 11 of the GIA emphasizes on quite the same thing.1 Almost all custody cases
highlight this principle as the most important in dealing with custody disputes.2
In Islamic law, this principle has long been established by jurists. Almost 900 years ago,
Ibn Qudamah in al-Mughni said:
The ultimate purpose of hadanah is to ensure that the welfare of the child is
protected3
Sayyid Sabiq in his book Fiqh al-Sunnah states:
Both the persons who have the right to hadanah and the person over whom
hadanah is exercised have their rights but the rights of the person over whom
hadanah is exercised are stronger than the rights of the person who has
hadanah.4
This principle has been embodied in section 86(2) of the IFLA:
In deciding in whose custody a child should be placed, the paramount
consideration shall be the welfare of the child …
In Nooranita bte Kamaruddin v. Faeiz bin Yeop Ahmad 5 the court said that:
....The primary consideration applicable in all cases of custody, that is, that
the rights of the child over whom custody is claimed must be given
preference to the rights of the persons claiming custody, as the purpose of
custody is for the interests and welfare of the child and not for the interests
and welfare of the parties contending for custody. … Our decision indeed
⃰ Assistant Professor, Ahmad Ibrahim Kulliyyah of Laws (AIKOL), International Islamic University,
Malaysia.
1
See GIA, s. 11.
2
See for example Mahabir Prasad v Mahabir Prasad [1982] 1MLJ 189.
3
Ibn Qudamah, Ahmad bin Muhammad, n.d., Al-Mughni, Riyadh: Maktabah al-Riyadh al-Hadithah, vol. 9,
p. 153.
4
Al-Sayyid Sabiq, 1987, Fiqh al-Sunnah, Beirut: Dar al-Kitab al-‘Arabi, vol. 2, p.302.
5
[1989] 2 MLJ cxxiv.
2
is based on the primary consideration applicable in all cases of custody
that is ... the interests and welfare of the child." 6
What constitutes welfare of the child?
There are several important factors that are taken into consideration in determining the
welfare or interests of the child in custody disputes. In the classical English case of J. &
Anor. V C. & Ors., the phrase ‘the paramount consideration shall be the welfare of the
child’ has been defined as:
… a process whereby, when all the relevant facts, relationship, claims and
wishes of parents, risks, choices and other circumstances are taken into
account and weighted, the course to be followed will be that which is most
in the interests of the child’s welfare.’7
In Malaysia, this principle was followed in the case of Mahabir Prasad v Mahabir
Prasad.8 In this case the judge outlined the factors that must be considered in order to
decide on the question of the welfare of the child as the paramount consideration. Ajaib
Singh J (as he then was) said:
It is well established that in an application for custody of a child the court
will in exercising its discretion regard the welfare of the child concerned
as the first and paramount consideration. It is equally established that this
does not mean that the court will not take other relevant factors into
consideration. Indeed in order to decide on the question of the welfare of
an infant as of paramount importance it is necessary to take into account
such matters as the conduct of the parties, their financial and social status,
the sex and age of the child, his wishes as far as they can be ascertained
depending on the age of the child, the confidential reports which a social
welfare officer may put up and whether in the long run it would be in the
greater interest, welfare and happiness of the child to be with one parent
rather than with the other. But always it is the welfare of the child which is
of paramount importance.
Ibid., pp. Cxxviii – cxxviii.
[1970] AC 668, pp.710-711.
8
[1982] 1 MLJ 189.
6
7
3
In K.Shanta Kumari v. Vijayan9 the court also said that in considering the paramount
consideration, the care, comfort, attention, the well-being and happiness of the child are
matters that should be taken into account.10
In Loura Dorris a/p Laurence v.
Thuraisingam a/l James11 the court listed out at length the factors that should be taken
into consideration when defining the word ‘welfare’.
The court said that it should
consider the question of the child’s welfare from various aspects including physical,
mental, moral and the future of the child that can be expected.12 Consideration should
also be given to the age, sex and religion of the child, the customs that the child was used
to and brought up with, the background, race, culture and behaviour of the parents.13
Other than that, the educational and material advantages that would be enjoyed by the
child, the child’s health and the changes that a child would encounter must also be taken
into account.14
With regard to Islamic law, quite similarly, there are several factors which constitute
welfare. Section 81 of the IFLA mentions about the age of the child. Section 82 and 83
provide other factors including physical, moral and emotional well-being of the child, the
capability of the custodian to handle the child in terms of age and maturity as well as
religion and conduct of the parties. Section 86(2) further provides with regard to the need
to consider the wishes of the parents and the child.
Thus, in both civil and Shariah courts, among the factors that are usually considered by
the court in determining the welfare of the child are; the wishes of the parents, the age of
the child, the wishes of the child if she is of an age where it is appropriate to consider
them, the status quo of the child, the physical, moral, and emotional well-being of the
child, the religion as well as the conduct of the parties.
Wishes of the parents
9
[1986] 2 MLJ 216.
Ibid., p. 218. These considerations were also followed in the case of Tan Sew Yoke [1989] 3 MLJ 381,
383.
11
[1995] 2 MLJ 229.
12
Ibid., p. 232.
13
Ibid.
14
Ibid.
10
4
Both the GIA and LRA include consideration of the wishes of the parents as a statutory
requirement as shown in section 11 and 88(2) respectively. In practice, however, the
wishes of the parents seem not to be that significant as most of the custody disputes
involved both parents and certainly each of them would want the child to be with them.
Only in cases whereby the parties in dispute are other than the parents, the wishes of the
parents will be more relevant.
In Chuah Thye Peng & Anor v Kuan Huah Oong15, the facts were that a child aged seven
months was left with the maternal grandmother just before the parents died in an air
crash. The paternal grandparents later applied for custody of their grandson. The facts
disclosed that the welfare of the infant could be equally served by both parties. The
court, however, concluded that custody should be given to the paternal grandparents as,
by doing this, the inferred wishes of the infant’s parents (who were Buddhist) to bring the
child up as a Buddhist would have been accomplished. These wishes might not have been
fulfilled if custody was given to the maternal grandparents as the maternal grandmother
was a Methodist.
The wishes of the parents seem to be less important in Islamic Law. This is due to the
fact that in Islamic Law, contrary to the civil law applicable to non Muslims, there is a
clear rule regarding the persons who are entitled to hadanah16 of a child. These persons
will be eligible in accordance with the order of priority. Section 81(1) of the IFA provides
that:
Subject to section 82, 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 81(1) above provides that in the case of custody, the mother shall be the
best person entitled to her infant children. S. 81(2) of the IFLA further provides
the lists of persons, in order of preference, who are entitled to hadanah of children
15
[1978] 2 MLJ 217.
The term custody under civil law does not fully represent the word hadanah under Islamic law. Thus,
when dealing with Islamic law, the word hadanah will be used.
16
5
in default of the mother including maternal grandmother, the father, the paternal
grandmother, full sister, the uterine sister and the sanguine sister.17
Presumption that it is good for a child under seven to be with the mother
Unlike the GIA, the LRA provides that there shall be a rebuttable presumption that it is
for the good of a child under the age of seven years to be with the mother. S.88(3) of the
LRA provides that in deciding the custody of the child,
(3) There shall be a rebuttable presumption that it is for the good of a
child below the age of seven years to be with his or her mother but in
deciding whether that presumption applies to the facts of any particular
case, the court shall have regard to the undesirability of disturbing the life
of a child by changes of custody.
In fact, because of this presumption, it is suggested that it is better for a mother to apply
for custody of her young infant under the LRA rather than under the GIA.18 However, in
applying this presumption the court shall have regard to the undesirability of disturbing
the life of a child by changes of custody.
In K.Shanta Kumari v Vijayan19, the applicant mother applied for custody of her 20
month-old-child who was abducted by the father during a visit. Before the incident, the
child had always been under the loving care of her mother since her birth and was
neglected by the father. In this case, Wan Yahya J. said:
‘Even going on the assumption that both parents are equally capable of providing
the care, comfort and attention to the infant, the Courts has always leaned in
favour of the mother being given custody of young infants. The reason is very
obvious. An infant of tender age is by nature more physically and spiritually
dependent on its own mother than anyone else.20’
In Thilagavathi a/p Suppramaniam v Chandran a/l Raman21 the court also said that:
‘I would also add that there is no substitute to a natural mother’s love, care
and devotion for her children and in the context of the factual matrix
17
See further s. 81 (2) of the IFLA to see the full list of persons entitled to hadanah.
See Wu Min Aun, Guardianship, Custody and Abduction of Children Across National Boundaries,
[1995] 1 MLJ i, p.xii.
19
[1986] 2 MLJ 216.
20
Ibid., p.218.
21
[2002] 3 AMR 2718.
18
6
herein the love and care of the grandmother would not be the same as that
of the natural mother’22
Thus, as suggested by Clement Skinner J (as he then was) in the case of L v S23, while
referring to the decision by Shankar J (as he then was) in the case of W v H24, it seems
that strong grounds would be needed to rebut the presumption. In the case of L v S25, the
judge pointed out that none of the grounds argued by the defendant father was strong
enough to rebut the presumption. The case of Venaja a/p Rajoo v R Ravindran a/l
Ramasamy III26 also illustrated that mere failure or refusal to breastfeed an infant cannot
become a good reason to rebut the presumption.
Nevertheless, in Amar Kaur a/p Ram Singh v Najar Singh a/l Sagar Singh27, the court
held that the presumption was rebutted as the mother had a history of suicidal tendency.28
The same reason was given by the court in the case of Re T (A Minor)29 in dismissing the
application made by a mother who was suffering from severe mental depression for the
custody of her four-year-old daughter.
In Tan Siew Kee v Chua Ah Boey, the
presumption was rebutted because the mother was a mahjong player and had no interests
to look after the child, while in the case of Chong Siew Lee v Lau Mun Chong30 the
mother came home very late at night and her role in looking after the child was negligible
as she did not devote her time for that purpose.
22
Ibid., p. 2725. See also Masam v Salina Saropa & Anor [1974] 2 MLJ 59; Kalyani Subramaniam v
Mahalingam Padavettan [1997] 3 CLJ Supp 439; L v S [2002] 2 AMR 1347; Gan Koo Kea v Gan Shiow
Lih (f) [2003] 4 MLJ 770; W v H [1987] 2 MLJ 235.
23
[2002] 2 AMR 1347.
24
[1987] 2 MLJ 235.
25
[2002] 2 AMR 1347.
26
[2001] 3 AMR 3708
27
[1991] 1 CLJ 294.
28
Ibid., p. 295.
29
[1993] 1 AMR 21, 887.
30
[1995] 4 MLJ 559; See also Thavamaven ni Deve a/p Govindasamy v N Sugamaran a/l Neelmehan &
Anor [1996] 1 AMR 1037.
7
Under Islamic law, the mother shall be the person entitled to take care of her infant child
as long as she has not married someone who is a stranger31 to the child. This is based on
the hadith:
"A woman has been divorced by her husband and came to the Prophet and
said: O Allah, this is my uterus which was pregnant with my son, my milk
which was sucked by him and my lap which provide him the shelter,
unfortunately, his father wanted to take him away from me. The prophet
then said:" You have more right to it as long as you have not married."32
Section 86(3) of the IFLA also provides that:
‘It shall be a rebuttable presumption that it is for the good of a child during
his or her infancy to be with his or her mother …’
Section 86(3) above provides that in the case of custody, the mother shall be the best
person entitled to her infant children. The fact that the mother is the best person entitled
to the hadanah of her infant child is also upheld by the courts. In Ramlah v. Mohamed33,
the parties who were divorced had two children, a girl aged three and a half years and a
boy aged two years. The chief Qadi gave hadanah of the child to the mother.
In Zawiyah v. Ruslan34, the parties who were divorced had a girl of about three years old.
The Chief Qadi gave custody of the child to the mother. The court held that:
‘When there is a divorce between husband and wife, and they have a child,
the wife is entitled to hadanah until the child is seven years old.’35
31
This is to protect the interests of the child as it is presumed that if the mother marries a stranger to the
child, he might treat the child unkindly. The situation is different if the mother marries a relative to the
child as he is expected to treat the child with love and kindness due to the close relationship between both
of them.
32
Abu Dawud, 1984, Sunan Abu Dawud, eng trans Prof. Ahmad Hasan, Lahore: Sh. Muhammmad Ashraf
Publishes and Booksellers, vol.2, p. 616. The reason why marriage will disqualify a mother from having
hadanah is to protect the interests of the child as there is possibility that the mother might neglect the child
after the marriage or the new husband does not love the child as his own child and this will affect the
interests of the child. Nevertheless, if the interests of the child are not affected with the marriage, the child
can still remain with the mother. See IFLA, s.83(a). See also Wan Abdul Aziz v Siti Aishah(2) [1401H]
JH(1) 50; Mohamed v Azizah [1401H] JH(1) 79; Harun v Che Gayah [1401H]JH(1) 66.
33
[1401H] JH (2) 77.
34
[1401H] JH (2) 102.
35
Ibid., p. 107.
8
In Rosna v. Mohamed Nor36, it appeared that, after the death of the father of a female
child, her uncle came to the house to take her away, alleging that the late father had
appointed him as trustee and guardian of the child. The mother then claimed custody of
the child and the judge gave custody to her as he held that the mother had a better right to
custody. The uncle’s appeal to the Board of Appeal was dismissed. In Zaliha bte Zakaria
v. Rahmat37, two children were involved. One, aged four years, was staying with the father
while the other aged two years was staying with the mother. The mother applied for
custody of her four-year-old child. It was held that the mother had the right to custody of
the child.38
Thus, it is obvious from the above cases that the mother is regarded as having the
stronger right to hadanah of a small child; provided that this is in the best interests of the
child.
Wishes of the child
The LRA has made it a statutory requirement to consider the wishes of the child who is
of an age capable of expressing an independent opinion. Section 88(2) of the LRA
provides that the court shall have regard:
(b) to the wishes of the child, where he or she is of an age to express an
independent opinion.
In Teh Eng Kim’s case39, the court considered the view of two of the children aged 10 and
15 years respectively. The fact that the views of the child are taken into consideration is
in line with article 12 of the UN Convention on the Rights of the Child.
As with other matters considered by the court in determining who should have custody of
a child, the court will only consider the opinions given if they are consonant with the
36
[1401H] JH (1) 42.
[1407H] 5 JH (2) 316.
38
See also Maimunah bt. Inalhage v Abdullah b. Hussin [1410H] 7 jh (1) 88.
39
[1977] 1 MLJ 234, p. 236.
37
9
interests of the child. In Chang Ah May @ Chong Chow Peng (f) v. A Francis Teh Thian
Sar40, the court said:
‘Now it has been judicially accepted that if a child is old enough to express its
own wishes, the court will consider them, not so that it can give effect to those
wishes but to be better to judge what is best for the child’s welfare. It must also
be remembered that if the child’s own wishes are so contrary to its long-term
interests, the court may feel justified in disregarding them altogether.’41
Again, in the case of Re KO42, the court came to the same conclusion. Edgar Joseph Jr J
(as he then was) said:
‘…I reminded myself that how influential an infant’s wishes are will clearly
depend upon the extent to which they coincide with his best interests in the
opinion of the court.’43
While considering the wishes of the child, the court was also aware of the possibility that
the wishes were expressed under the influence of other people. In Chan Bee Yen v Yap
Chee Kong44, the court was of the opinion that the wish expressed by the child that he
preferred to stay with his father was not an independent opinion and was therefore not
reliable as the court had the impression that there was a possibility that the child was
being persuaded by his father and his family what to say. Similarly, in the case of B
Ravandran s/o Balan v Maliga d/o Mani Pillai45, the court did not follow the views of the
child as the court commented that in all probability he was influenced by material gains
promised to be given or already given by the father.
An interesting question that arises is at what age a child can be considered as mature
enough to express an independent opinion. In Manickam v Intherahnee46 the failure of
the lower court to question an eight-year-old child became one of the grounds of
complaint at the appeal level. The Federal Court, however, held that a child of eight
years who was in the custody of one party and his family could not reasonably be
40
[1991] 1 CLJ 309.
Ibid., pp. 312-313.
42
[1990] 1 MLJ 494.
43
Ibid., p.498.
44
[1989] 1 MLJ 370.
45
[1996] 2 MLJ 150.
46
[1985] 1 MLJ 56.
41
10
expected to express any independent opinion on his preferences.47 In Mahabir Prasad’s
case48, children aged seven and half and eight and half years respectively were given the
opportunity to express their wishes. In Chang Ah May’s49 case, the court gave an
opportunity to a ten-year-old child to express her opinion. In Lim Fang Keng v Toh Kim
Choo50, the views of two children aged nine and eleven years respectively were
considered and accepted by the court.
From these cases it appears that whether a child can be considered as mature enough to
express his or her wishes and whether the wishes will be considered depends greatly on
the opinion of the judge in that particular case. Nonetheless, taking section 88(3) as a
guideline, to consider (of course not necessarily accept) the wishes of children above the
age of seven might seem to be reasonable.
Under Islamic law, wishes of the child who has attained the age of mumayyiz are also
taken into consideration in determining the right of hadanah. This is based on one hadith:
“It is narrated from Abu Hurairah that a woman came to Rasullullah and
asked: O Rasullullah, my ex husband has taken away my son from me
while he is able to bring me the water from the well of Abu Inabah and it
is very beneficial to me. Rasullullah said to the child, this is your father
and this is your mother. Go and choose one of them. The son chose the
mother and they went away from there.”51
According to the Shafiis52, when a child has reached the age of seven years or
mumayyiz53, a child will be given a choice whether to stay with his mother, father or any
ahl al-hadanah (those who entitled to the rights of hadanah).
47
Ibid., p. 57.
[1982] 1 MLJ 189.
49
[1991] 1 CLJ 309.
50
[1995] 4 CLJ 733.
51
Abu Dawud, op. cit., vol.2, p. 617.
52
Al-Shafie, Muhammad Idris, 1961, Al-Umm, Beirut: Dar al-Ma’rifah, 1st edn, vol. 5, p. 92; Al-Nawawi,
Muhyi al-Din Abu Zakariya Yahya ibn Sharaf, n.d., Minhaj al-Talibin, engl transl E.C. Howard, Law
Lahore:Publishing Company, p. 392.
53
The ability to distinguish between right and wrong. The jurists set the age of seven as the age of
mumayyiz based on the practice of the companions and the hadith relating to the commandment of prayer to
children.
48
11
Section 86(2) of the IFLA provides that in determining the custody of a child, the court
must also regard to the wishes of the child when dealing with hadanah of a child who has
attained the age whereby he or she can express an independent opinion. The cases seem
to show that what is meant by the ‘age whereby an independent opinion can be
expressed’ is the age of mumayyiz as discussed by the jurists.
In Rugayah v Bujang54, the applicant mother claimed for the custody of the three children
from the marriage. As two of the children, a girl and a boy were aged 9 and 7 years
respectively, they were given the right to choose between their parents. Both chose to
stay with their mother. In Mohamed Koyamo v Sapura,55 the applicant father claimed
three out of six children who were staying with the mother after the parties divorced.
They were a daughter aged 12 years and two sons aged 9 and 13 years respectively. As
all of the children had attained the age of mumayyiz, they were given the right to choose
whether they would like to stay with the mother or the father. All of them chose to be
with the mother.
However, it should be reminded here that the rights given to a child to choose must be in
line with the long term interests of the child. Ibn Taymiyyah was telling his students how
in one case, a child was given the option to live either with his mother or father, and he
chose his father. The judge asked the child why he chose to live with his father and the
child explained that his mother told him to go to school every day while his father let him
play with his friends.
56
In this case, the judge was of the opinion that if the wishes were
followed, then the welfare of the child will be neglected. Therefore, it can be concluded
here that the right to make a choice that is given to a child is not an absolute right but
depends on the child's welfare. Preservation of Status Quo
One consideration that is always taken into account by the court in deciding custody
cases is the preservation of the status quo of the child. It is observed from decided cases
that there are several points usually considered by the court in dealing with preservation
54
[1410H] 4JH (II)332.
[1407H] 5JH (II) 352. See also Marthiah v Ahmad Sulaiman, [1407H] 5JH (II)335. In this case, the
children, both boys chose to remain with the father with whom they had been staying since the divorce.
56
Al-Sayyid Sabiq, op. cit., vol. 2, p. 313.
55
12
of status quo. Firstly, the length of time spent by the child with the familiar person or
persons. In Masam v Salina Saropa & Anor57, the court held that since the infant had
been living with the foster parents for a period of approximately two years and since they
had cared for it with love and affection, custody should remain with them. The court
further said that if the infant were taken away from the foster parents after such a length
of time the result might be that he would develop a permanent emotional scar.58
In the case of Tang Kong Meng v Zainon bte Md Zain & Anor59, the question of
preserving the status quo was also discussed. In this case, the custody of the child who
had been living with the defendants for almost nine years old was given to them. James
Foong J (as he then was) said:
In considering the question of custody, the welfare of the child is of paramount
importance. With this fundamental principle in mind, one can only turn to
Suhaimi and Zainon who have taken care of Alvina since the age of three months.
…Though some customs and religious practice between Zainon and Suhaimi and
that of what Alvina was born into are different, but within a progressive Malaysia
where racial harmony and unity have achieved significant progress, such
differences can be, and should be overlooked to accommodate the future welfare
of Alvina which is of paramount importance.60
Nevertheless, in the case where the child has in fact stayed longer with some other parent
or person but because of certain (usually) unavoidable reasons the child is in the custody
of the other parent at the time of proceeding, status quo will normally not be preserved.
In Mahabir Prasad v Mahabir Prasad
61
, even though the children were left with the
appellant father for a few months when the respondent mother left for India, most of the
rest of the time the children were with the mother. In fact, at one time during the
marriage, the children were staying with the respondent mother alone for more than three
years when the appellant father came back to Malaysia. The Federal Court in dismissing
the appeal held that the welfare of the children must be the paramount consideration and
57
[1974] 2 MLJ 59.
Ibid., p. 60.
59
[1995] 3 MLJ 408.
60
Ibid., p. 416.
61
[1982] 1 MLJ 189.
58
13
other considerations must be subordinate and that it was in the best interests of the
children to stay with their mother in India.62
Secondly, the test ‘whether the change of status quo would provide better or significant
improvement to the child’s welfare’ would usually be applied by the court. In Khoo
Cheng Nee v Lubin Chiew Pau Sing63, the court said:
A party seeking an order for custody away from their current
arrangements must therefore show that what he or she offers benefits the
welfare of the children better. The court must evaluate whether the
improvement to the welfare of the child is sufficient to justify disturbing
the life of that child by that change of custody. It has to be shown there
will be positive advantages accruing for the welfare of the children by that
change. Those advantages must be real and not merely promissory or
speculative.64
In Manickam v Intherahnee65, the Federal Court, while taking into consideration the fact
that the status quo of the child should be preserved, held that the care and attention of the
natural mother can be reasonably expected to be superior to that of a step-mother,
particularly one who has a child of her own and with every prospect of additions to the
family.66 In Hoo Tat Fong (P) v Lim Cheun Eng67, the status quo was also not preserved
as certainly it was better for the children to be with the father since there was evidence of
sexual molestation done by the mother’s family members.
The third consideration is medical evidence provided by the disputing parties.
In
responding to the concerns of the learned counsel for the respondent that the children
might suffer trauma and psychological damage on being uprooted from a stable
environment, the court in Chan Kam Tai (F) v Kong Pen Keong68 commented that there
was no medical evidence to suggest that it would be so. Similarly, in the case of Re
62
See also Tan Sew Yok v Ng Keng Huat, [1989] 3 MLJ 381; Chang Ah May @ Chong Chow Peng(f) v
Francis Teh Thian Sar, [1991] 1 CLJ 309.
63
[1996] 1 AMR 450.
64
Ibid., at p. 458. See also the case of Thavamani Deve a/p Govindasamy v N Sugumaran a/l Neelmehan
& Anor [1996] 4 MLJ 195.
65
[1985] 1 MLJ 56.
66
Ibid., p. 58.
67
[2001] 5 MLJ 660.
68
[2008] 5 MLJ 369.
14
KO69, the court commented that no medical evidence was adduced to show that the child
would suffer any adverse effect to his mental or physical health or any distress in the
event of his being removed from the care of the husband to that of the wife.70
Fourthly, besides the people whom the child is used to, the court also takes into
consideration the surroundings and the way of life that the child is accustomed to when
dealing with the problem of the preservation of the status quo. In Neoh Cheng Kim v Goh
Ah Hock71, the court took into account the facts that the children were staying happily in
the matrimonial home which was a semi-detached house with five bedrooms and were
provided with transportation and extra tuition. If the children were in the custody of the
mother, she might not be able to provide similar comfort to the children. Based on the
above reason, the court held that the status quo of the children should be preserved.
With regard to Islamic law, there is no specific section that mentions about preservation
of status quo, but section 86(3) of the IFLA mentions indirectly about the importance of
preserving the status quo of the child. In Wan Abdul Aziz v Siti Aishah72, the father, who
had stayed with the child for about one and half year prior to the claim made by the
mother, was given hadanah of the child. The court said that in this case, the child had
been living with the father under the care of the paternal grandmother for about one and
half years. It was presumed that during this time the child became so attached to the
grandmother that to remove her from that situation would disturb her emotions. In
Nooranita bte Kamaruddin v Faeiz bin Yeop Ahmad, 73 the father applied for hadanah of
the child. The learned Chief Judge held that, as the mother married a person who was a
stranger to the child, she lost her right and hadanah was given to the father. At this time,
the child was six years old. The mother appealed but unfortunately the appeal could only
be heard four years later during which time the child had been living comfortably with
69
[1990] 1 MLJ 494; See
See also Winnie Young v William Lee Say Beng [1990] 1 MLJ 123; Kalyani Subramaniam v Mahalingam
Padavettan [1997] 3 CLJ Supp 439.
71
[1990] 2 CLJ 268.
72
[1401] JH (1) 47.
73
[1989] 2 MLJ cxxiv.
70
15
the father and stepmother. It was held that hadanah of the child should be given to the
father with whom the child had been living for over four years.
Physical, moral and emotional well-being
Another important factor that will be taken into account by the court is physical, moral
and emotional well-being of the child. Things such as a good, stable home and secure
environment will promote the physical well-being of the child.74 In Lee Soh Choo75, one
important reason why custody was not given to the mother was due to the fact that she
could not convince the court of the place that the child would be living in if custody was
given to her. Similarly, in the case of Neoh Cheng Kim v. Goh Ah Hock76, one of the
considerations taken into account by the court was the comfortable semi-detached house
which the children were living in at that time compared to a new house (which was
uncertain) if the children were to be living with the mother.77 In the case of Chong Siew
Lee v. Lau Mun Chong78, the court went further to say that the comfort, safety, love and
warmth of the matrimonial home might rebut the presumption under section 88 (3) of the
LRA.
Nevertheless, this physical well-being needs to be balanced with moral needs as
illustrated by the judge in the case of L v S79:
… in matters of custody, the authorities show that the word welfare
must be taken in its widest sense so that the welfare of the child is not
to be measured by which parent earns the most money and can provide
the child with best physical comforts alone. A child’s moral needs
must be taken into account as well.80
74
See Hoo Tat Fong (P) v Lim Cheun Eng [2001] 5 MLJ 660, where in this case the court came to the
opinion that the home that the child was living in at that time was no longer safe as there was a serious
allegation of sexual abuse. See also Re KO [1990] 1 MLJ 495 at p 500; Teh Eng Kim v Yew Peng Siong
[1977] 1 MLJ 234
75
[1986] 2 CLJ 143.
76
[1990] 2 CLJ 268.
77
See also Tan Chong Pay v Tan Swee Boon [1997] 4 CLJ 625 at p 631; Tan Siew Kee v Chua Ah Boey
[1988] 3 MLJ 20.
78
[1995] 4 MLJ 559.
79
[2002] 2 AMR 1347.
80
Ibid., p. 1363. See also Re McGarth [1893] 1 Ch 143 at p. 148.
16
In this case, after considering the fact that both parents might provide equal physical
well-being (judging from the home they had), the court decided to award custody to the
mother as, unlike the father, the mother was more qualified to take care of the child;
taking into account its moral and emotional needs as the father was a bad tempered and
violent person. In Lim Fang Keng v Toh Kim Choo81, the court took into account the
unhappiness voiced out by the children due to bullying tactics of the cousins and the slur
made by their aunt against their mother while they were under the care of the aunt when
the father was at work.
As regard to this matter, Islamic law also takes into account the moral, physical, and
well-being of the child in determining the right of hadanah. Section 82(c) of the IFLA
provides that one who is entrusted with hadanah must be of an age that qualifies her to
bestow onto the child the care, love, and affection that the child may need; while section
82(e) mentions that the person should live in a conducive environment so as to protect the
child from any harm morally or physically. In Nong Azman Shah v Ahood Thamar
Badei82, the mother was originally from Iraq and she wanted to bring the child with her to
Iraq if hadanah was given to her. In this case, the court commented that Malaysia,
compared to Iraq, is a safer place for the child.
In Khairul Huda Carol Abdullah v Shahruddin Hj. Yasin83, the applicant mother married
the defendant father a few days after converting to Islam. There were differences between
them and the parties divorced after almost two years later. They were blessed with a son
from the marriage and after the parties divorced, the applicant asked for hadanah of the
child. The court held that hadanah should be given to the paternal grandparents as the
mother, in this case, intended to return to her original country, Australia. The court was
of the opinion Australia did not have an environment which would allow the child to
grow up to be a good Muslim.
81
[1995] 4 CLJ 733.
(1997) 11 JH (II) 165.
83
Case no. 23/86, Qadi Court of Seremban, unreported.
82
17
Section 83 (a) further provides that a person would lose his or her right to custody if he or
she neglects the child. In the case of Ahood Thamar above, among the reason why
custody was given to the father was due to the fact that the mother, who was a career
minded woman, neglected the child and left the child to be taken care of solely by the
maid. Nevertheless, the fact that a mother is working does not in itself make her lose her
right to have hadanah. In Wan Junaidah bt. Jusoh v Latiff bin Mohd Shah84, the court was
reluctant to accept that merely because the mother was working, she had no ability to take
care of the child. In Rahanim Binti Mohd Yobe v Adnan Bin Ahamd85, the mother was
given hadanah of the child despite working as a bank officer in Kuala Lumpur.
Conduct of the parties
Generally, conduct of the parties per se will not have a direct impact to the custody
application, unless the conduct directly gives an effect to the interests of the child. The
court in Teh Eng Kim v Yew Peng Siong86 held that ‘criticisms of the conduct of parents
because they transgressed conventional moral codes have no place in custody
proceedings except in as far as they reflect upon the parent’s fitness to take charge of the
children’87. The court in this case relied on the case of H. v. H. and C.88, in which
Salmon L.J. said:
I do not myself think that, whether this marriage broke up because of the fault of
the father or mother or both of them, is of any consequence whatsoever. But I am
bound to say that what impressed me is the fact, not that this mother committed
adultery with another man in May 1966 but that she went off to live with him
leaving the child behind.89
Similarly in Marina Nahulandran v Appiah Nahulandran & Anor.90, the argument that
the party who committed adultery should not be given consideration at all in custody
application was rejected by the court. Further, in Khoo Cheng Nee(p) v Lubin Chiew Pau
84
[1412H] 8JH (1) 122, p. 158.
[1993] 5 KANUN (3) 174.
86
[1977] 1 MLJ 234.
87
Ibid., p. 239.
88
[1969] 1 All ER 262.
89
Ibid., p.263.
90
[1976] 1 MLJ 137.
85
18
Sing91, the court held that adultery, although frowned upon by Malaysian society, by
itself is not a sufficient ground to disqualify a mother from having custody of her
children. The court distinguished the facts of this case from those of Loura Dorris92 in
which case the mother remained the cohabitee of a married man and left the child behind
and thus she was not entitled to custody. In the former case, the mother, however, had
not walked out of the matrimonial home and she had had the children with her almost all
the time. The court stressed that an applicant might fail in his custody application not
due to his conduct per se but due to his conduct which affected the interests of the child.
Violent and dangerous behaviour as well as irresponsible behaviour of the parties,
nevertheless, will be taken into account in determining custody disputes as these will
certainly affect the interests of the child. In L v S93 , the court came into opinion that it
would not be in the best interests of the child to be brought up by the father who was a
person of ‘volatile and uncontrollable temper with a propensity to resort to impulsive,
violent and dangerous behaviour’94. Similary in Sivajothy a/p K Suppiah v Kunathasan
a/l Chelliah95, the father who was a violent, abusive and unreasonable person was not
entitled to custody. The facts disclosed that in one occasion he chased the wife and
children out of the matrimonial home at 2.30 in the wee morning hour.
The irresponsible behaviour of the parties or showing no interest attitude may also
become one of the consideration of the court in determining custody disputes. In Re A
and B (Minors)96, the mother left the two children, aged twelve and nine years old
respectively, by themselves in the afternoon when the mother was at work. In other
words, she was a woman who prioritized her career to the detriment of her children.
Besides this, she was also a hot tempered person which affected the interests of the child.
In the case of Chong Siew Lee v Lau Mun Chong97, the mother came home very late at
night and did not spent much time looking after the children. While in the Singapore
91
[1996] 1 AMR 450.
See Loura Dorris a/p Laruence v Thuraisingam a/l James [1995] 2 MLJ 229.
93
[2002] 2 AMR 1347.
94
Ibid., p. 1370.
95
[2000] 6 MLJ 48.
96
[1997] 2 MLJ 154.
97
[1995] 4 MLJ 559.
92
19
case of Tan Siew Kee v Chua Ah Boey98, the mother was very keen of playing mahjong
and seemed to have no interests to take care of the child.
Islamic law, on the other hand, placed conduct of the parties as one important factor that
needs to be considered. Section 82(d) of the IFLA provides that a woman shall be entitled
to the right of hadanah if she is of good conduct from the standpoint of Islamic morality.
Section 83(b) further provides that a woman would lose her right to hadanah if she is
involved with activities considered as gross and openly immoral. Al- Mughni mentions
that:
The responsibility of hadhanah cannot be given to the fasiq99 person as he is the
one who cannot be relied on. The welfare of the child may not be protected since
there is a tendency for the child to be influenced by the bad attitude of the person
In Rahanim Binti Mohd Yobe v Adnan Bin Ahmad,100the Islamic conduct of the mother
was debated. It was alleged that the mother did not perform daily prayers and also did not
fast in the month of Ramadhan. As these two obligations are considered essential in
Islam, failure to observe them might render a person a fasiq and thus preventing him from
being entitled to hadanah of a child. However, in this case, the allegation was not proven
and thus the mother was given the right of hadanah.
In Khairul Huda Carol Abdullah v Shahruddin Hj. Yasin101, the defendant father was held
to be a person who did not possess Islamic good conduct as he did not know how to pray,
consumed alcoholic drinks and loved to enjoy himself freely. However, in Mohamed v
Azizah102, the court held that working in a hotel did not render a person to be a fasiq.
Religion
98
[1988] 3 MLJ 20.
A person who commits major sin or continuously commits minor sin
100
1993 5 KANUN (3) 174.
101
Case no. 23/86, adi Court of Seremban , unreported.
102
[1401H] JH (1),p.80.
99
20
There is no explicit provision on religion under the LRA or the GIA and there are only a
few cases discussed on religion. In Chuah Thye Peng & Anor v Kuan Huah Oong103, the
court said that:
The court should have regard primarily to the welfare of the infant and
only consider the religion and customs of the parties concerned provided
they were consistent with the welfare of the infant.
In this case, the religion of the child was indirectly considered when the court considered
the ‘would have been’ wishes of the dead parents. In Loura Dorris a/p Laurence v.
Thuraisingam a/l James104 the court listed out many factors that should be taken into
consideration in determining the welfare of the child; including the sex and religion of the
child. Thus, it may be concluded that religion does not seem to be considered as an
important consideration under civil law.
In England and Scotland, previously, religion was considered as an important factor. In
Shelly v Westbrooke105 and M’Clements v M’Clements106, the court concluded that atheist
should not be given the right to custody. Nevertheless, the position seems to be different
at present. Wilkinson and Norrie are of the view that ‘the child’s physical, emotional or
moral well-being can scarcely be jeopardized for the sake of continuity of religious
upbringing’107. Professor Thomson further added:
… in the increasing secular society, religious upbringing should no longer
be such an important factor in applying the welfare principle108
Under Islamic law, however, religion is an important consideration that should be taken
into account. According to the Shafiis109 and Hanbalis110, the person who is given the
103
[1978] 2 MLJ 217.
[1995] 2 MLJ 229.
105
(1817) Jac 266, as cited in Susan Maidment, 1984, Child custody and Divorce: The Law in Social
Context, London & Sydney: Croom Helm, p. 112. See also Re Besant (1879) 11 Ch D 508.
106
1958 SC 286.
107
Wilkinson, A.B. and Norrie, Kenneth Mc.K, 1993, The Law Relating to Parent and Child in Scotland,
Edinburgh: W.Green/Sweet & Maxwell, p. 222.
108
Thomson, JM, 1996, Family Law in Scotland, 3rd edn., Scotland: Butterwoth/Law Society of Scotland,
p. 225.
109
Ibn Qudamah, op. cit., vol. 9, p. 137.
110
Al-Nawawi, n.d., Minhaj al-Talibin, engl. trans. E.C. Howard, Lahore: Law Publishing Company, p.
392.
104
21
right of hadanah must be a muslim. If the right of hadanah be given to the person who is
a non-muslim, it is feared that the person will influence the child to neglect the teachings
of Islam and thus the interests of the child will also be neglected as the meaning of
interests according to Islamic law covers not only physical and emotional but also
spiritual well-being.111 With regard to this matter, Ibn Qudamah said:
“It is feared that a non-muslim person will influence the child to
abandon the teachings of Islam by his teachings, attractions and
guidance and this is a great harm to the child. Hadanah is for the
welfare of the child and to do something which can give damage to the
child or its religion is totally contrary to the welfare of the child.”112
Nevertheless, the Hanafis113 opine that a non-Muslim mother or female relatives may still
be given the right provided that the child is still small and does not yet understand
religion. The Malikis114 are also of the opinion that a non-Muslim may still be given the
right provided the child is under good care; that is it should not be fed with prohibited
food and drink according to Islamic law. Section 82(a) of the IFLA provides Muslim as
one of the condition that must be met in order for a hadinah to be entitled to the right of
hadanah.
In Faridah binti Daud and anor v. Mohd. Firdaus Abdullah @ Jettle Francis,115a child
aged 10 years chose to live with her father. However, taking into account the religious
well-being of the child, the court decided that hadanah should be given to the maternal
grandmother. The Court made this decision based on fact that if the child was allowed to
live with her father, she actually had to live with her paternal grandmother who was a
non-Muslim since her father, who worked in Brunei, could not bring her along with him.
This was certainly not good for the religious upbringing of the child.
In Shamala
Sathiyaseelan v Dr Jeyaganesh C Mogarajah116, (a case decided by the civil court), the
111
Ibn Qudamah, Al-Mughni, v. 9, p. 137; Al-Nawawi, Minhaj, p. 392. .
Ibn Qudamah, Al-Mughni, vl. 7, p. 613.
113
Al-Marghinani, 1982, Hedaya, eng. trans. Charles Hamilton, Lahore : Premeir Book House, p. 139; AlSarakhsi, Shams al-Din Muhammad, 1993, Al-Mabsut, Beirut : Dar al-Ma’rifah, p. 210.
114
Al-Asbahi, Malik b. Anas, 1906/1324H, Mudawwanah al-Kubra printed together with Ibn Rushd,
Muhammad bin Ahmad, Kitab al-Muqaddimat al-Mumahhidat, 1st edn., Al-Matba’ah al-Khairiyyah, vol. 2,
pp. 245-246.
115
(2002) 15 JH(1) 25.
116
[2004] 3CLJ 516.
112
22
High Court took into account the opinions of Malikis and Hanafis. In this case, custody
of children aged 3 and 4 years were given to the non- Muslim mother. The court,
however, cautioned the mother not to feed the children with unlawful food and drink
according to Islamic law.
Conclusion
In conclusion, it appears that both laws regard the interests of the child as the paramount
consideration in determining the right of custody and hadanah. Both laws are in
agreement with regard to the many factors that need to be taken into account. Factors
such as age and wishes of the child, physical, emotional and moral well-being and
preservation of status quo are no doubt important in order to preserve the interests of the
child.
Nevertheless, the scope of welfare of the children in Islamic Law is wider than civil law
as it covers not only physical and emotional but also the spiritual aspect of the child;
particularly the religious obedience of the child towards Islamic teachings. Islamic Law
stresses more on the religion and character of the parties since the meaning of interests
according to it is not only confined to worldly life but more importantly to the life in the
hereafter. Therefore, religion and good character of the parties are among the important
points that need to be taken into account in order to ensure that the child will be brought
up not only as a good and balanced individual in this temporary life, but more
importantly to ensure that he is considered as a successful individual in the eyes of God
and thus deserved to be blessed with paradise in which place he will live permanently.
23