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. FILE PIC

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 al-Syariah (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 Kanak-kanak: 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.

Dr Mohamed Azam Mohamed Adil is deputy CEO, International Institute of Advanced Islamic Studies (IAIS) Malaysia

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