TOPIC 9

GUARDIANSHIP
AND CUSTODY
UNDER ISLAMIC
LAW
GLUP2123 FAMILY LAW II
CHILD
CUSTODY
 CUSTODY

Custody under Islamic law also known as ‘hadhanah’.

Nooranita kamaruddin v Faiez Yeop Ahmad (1989) 2 MLJ cxxiv - “the mother shall
give suck to their offspring for 2 whole years, if the father desires to complete the
term. But he shall bear the cost of their food and clothing on equitable terms. No soul
shall have a burden laid on it greater than it can bear. No mother shall be treated
unfairly on account of her child nor father on account of his child.”- Surah al-Baqarah
2: 233
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• A woman said : O Prophet my womb is a vessel to
this son of mine, my breasts a water-skin for him
and my lap is a refuge for him, yet his father has
divorced me and wants to take him away from me.
The Prophet s.a.w said: ‘You have more right to
him as long as you do not marry.’- Hadith, Sunan
Abu Dawud, 2 Kitab al-Talaq.
• A woman came to the Prophet and said : ‘My
husband wants to take away my son, although he
(my son) gives me calm and brings me drinking
water from the well of Abu Inabah’. After that the
H appeared and denied the woman’s claim over his
son. The Prophet then said: ‘ Child! Here is your
father and here is your mother, make a preference
between the 2 whomsoever you want.’ The son
caught hold of the hand of his mother. Then she
went away with her son.- Hadith, Sunan Abu
Dawud, 2 Kitab al-Talaq.
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 • Mother is the person who get priority in
the entitlement to custody of a child
• S.81(1) IFLA: 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.
Entitlement of • This section explicates that the mother has
Custody the right to the hadanah of her child.
However, this right is subject to s.82 - the
(Qualifications) qualification needed for custody, not just
for the mother but also for any person
entitled to execute the right of hadanah.
• A man shall have a right to the custody of
a female child if he stands within the
prohibited degrees of relationship
(muhrim). S.81(3) IFLA
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 S.83 elucidates how the right to hadanah may
cease - 5 situations that make a woman lose her
right:

1. by her marriage with a person not related to

the child within the prohibited degrees if her
custody in such case will af fect the welfare
of the child but her right to custody will
Lost of the rever t if the marriage is dissolved;

right of 2. by her gross and open immorality;

3. by her changing her residence so as to

custody prevent the father from exercising the
necessar y super vision over the child, except
that a divorced wife may take her own child
to her bir th-place;

4. by her abjuration of Islam;

5. by her neglect of or cruelty to the child.

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 Para (a) s.83 IFLA was amended in 1994. The amendment was executed by
inser ting the qualification that the woman’s marriage to a person not
associated to the child within the prohibited degrees would result in her
losing the right of hadanah of the child.

 Nooranita bt Kamaruddin lwn Faeiz b Yeop Ahmad (1997) 7 JH 61 – the

rights of the child over whom the custody is claimed must be given
preference to the rights of the person claiming custody – interests and
welfare of the child is the primar y consideration.

 Rahanim bt Mohd Yobe v Adnan bin Ahmad – she was alleged not per forming
prayers, nor fasting during month of Ramadhan, but it was not proved.
Held, she (mother) was entitled to hadanah.

 Khairul Huda Carol Abdullah v Shahruddin Hj Yasin – Father not entitled to

hadanah – neglected prayers, drank liquor and led a flir tatious life.

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 S.81(2) IFLA However if the Shariah court is of the
view that the mother is not entitled under the hukum
Shara the hadanah of the children, the right of
hadanah will pass to one of the following
personalities.
The Next • Maternal grandmother, how high so ever
• Father
Person • Paternal grandmother, how high so ever
• Full sister
Entitled • Uterine sister
• Sanguine sister
After Mother • Full sister ’s daughter
• Uterine sister ’s daughter
• Sanguine sister ’s daughter
• Maternal aunt
• Paternal aunt or
• Male relative who could be their heirs as residues.
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• If there are numerous persons who are in the same degree,
all evenly qualified, and keen to take care of the child, the
hadanah will pass to the one who is the most virtuous and
demonstrates the utmost compassion to the child

• In the event of them being equally virtuous, the hadanah

will be entrusted to the senior among them in age.- S.81(4)
IFLA

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 The question of whether or not the welfare of the child will
be affected depends on the facts of the case. It is up to the
court to determine them and decide accordingly.

Some progress as any remarriage by the mother does not

automatically indicate her disqualification as a custodian of
Hadanah & her child.

welfare of Welfare of the child should be given the paramount

the child consideration - Wan Abdul Aziz lwn Siti Aishah [1980] JH
147. It is the fundamental rights for the children- Harun lwn
Che Gayah (1978) 1 JH(1) 66
If it is for the welfare of the children, the court may deny the
mother’s right and grant the custody order to their
grandparent -Mohd Radhi Hj Che Daud lwn. Khadijah Yaacob
[2005] 1 CLJ (Sya) 187 10
  the Court may at any time by order decide to
place a child in the custody of any one of the
persons stipulated in s.81 IFLA- also covers the
social welfare department homes or institutions
or private welfare homes/ institutions.
Power of
 S.86 IFLA- the court in deciding in whose
Court To custody a child should be placed, the paramount

Order Custody consideration shall be the welfare of the child,

subject to this consideration, the Court will have
to determine, based on S.86(2) -
 the wishes of the parents of the child; and

 the wishes of the child, where he or she is of an age to

express an independent opinion.

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 Provide d under s.87 IFLA- the cour t if it think f it to do
so may inser t the followings in an order for custody ;

(a) the place where the child is to live and as to the

manner of his or her education;

(b) provide for the child to be temporarily in the care

Conditions and control of some person other than the person given
custody;
attached (c) provide for the child to visit a parent deprived of

with custody custody at such times and such periods as the Cour t
conside rs reasonable;
order (d) give a parent deprived of custody the right of
access to the child at such times and with such
frequency as the Cour t considers reasonable; or

(e) prohibit the person given custody from taking the

child out of Malaysia.

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Presumption of
Custody of Infant

• S. 86 (3) IFLA stipulates for the

rebuttable presumption stating that it is
for the good of a child during his /her
infancy to be living with his or her mother.
• The court in determining whether this
presumption is applicable to the facts of
any particular case will have consider the
undesirability of disturbing the life of a
child by changes of custody. - Zawiyah lwn
Ruslan (1980) 1 JH (2) 102; Wan Abdul
Aziz v Siti Aishah.
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 Duration of custody
• S.84 IFLA
• The right of the hadinah (the person who has custody of a
child) to the custody of a child ends when-
Boys : age of 7 years,
Girls: age of 9 years
• However the Cour t may extend the duration upon
application of the hadinah - allowing her to retain the
custody of the child until the age of -
9 years - Boys
11 years- Girls.
• Af ter termination of the right of the hadinah, the father will
be the new custodian of the child.
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 • The cour t approach in determining the custody –
If the child attained the age of discernment
(mumaiyiz), he or she will have the option to live
with either of the parents, unless the Cour t
otherwise orders - the cour t will inter view the
Right to children
Choose for • S.86(4) explicates for situations where there are 2
or more children of a marriage.
Children in
• The Cour t shall not be bound to place both or all in
discernment the custody of one person - the cour t shall
age. consider the welfare of each children
independently.

• Mohamad Salleh lwn Azizah JH (1404H) 212 –

mother wants to claim her rights back, children
have not attained the age of mumayyiz.

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 • S.86(5) elucidates that the Court may make

Interim an interim order to place the child in the

custody of any person /institution /association
Custody
• The order shall immediately be enforced and
Order continue to be enforced until the Court
makes an order for the custody.

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 Under s.85 IFLA - Custody of
Custody of illegitimate children is exclusively given
Illegitimate to the mother and her relations.

Children

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GUARDIANSHIP
 GUARDIANSHIP

• Guardianship or “wilaya” means:

‘The carr ying through of a decision af fecting a third person whether the latter
wishes or not’

• Guardianship may be of person or property.

• Guardianship of a person may or may not be the same as the guardian of

property.

• It is a duty or obligation on a person on the basis of kinship, by testament or

by court order towards another person of imperfect or without legal capacity.

• 3 ground for being placed under guardianship: Minority, Insanity or Within

limits, the state of being female. 19
 • Natural guardian - normally the father of the child
• Testamentar y guardian - appointed in a testament by
natural guardian to look af ter /care of his children,
(including those born af ter his death). He may revoke
such appointment, Upon his death, the testament
would be produced in cour t for conf irmation.
• Curator - Guardian appointed by the cour t for the
minor, born or conceived, who has no testamentar y
Categories guardian, or for the insane, idiot, imbeciles or
prodigals.

of Guardian • Both testamentar y guardian & curator must not be

any person -
- Convicted of an immoral or dishonest of fence
- Declared bankrupt by the cour t until he is
rehabilitated
- Who is involved in either a legal dispute with
the minor or any family conf lict which may
endanger the minor ’s interest.
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 • The father shall be the first and primar y natural
guardian of the person and property of his minor
child- s.88(1) IFLA

• Where the father is dead, the legal guardianship

devolves upon one of the following persons in
the following order of preference,
Entitlement of (a) the father's father;

Guardianship (b) the executor appointed by the father's will;

under IFLA (c) the father's executor's executor;

(d) the father's father's executor;

(e) the father's father's executor's executor,

The conditions these people must meet are they

must be a Muslim, an adult, sane, and wor thy of
trust.
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 s.88(2) IFLA allows the father to make by will to the
guardianship of his minor children and the protection of
their interests, provided that he is in full possession of his
senses.

 Court shall appoint a guardian of the property of the

minor - s.88(3) IFLA

 S.88(4) IFLA: A person shall, for the purposes of

guardianship of person and property, be deemed to be a
minor unless he or she has completed the age of 18.

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 Power of a Guardian

 s.89.IFLA - Power over immovable and movable property.

 S.98 IFLA - Guardian may support minor out of income.

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  Mother may be appointed as a
testamentary guardian, whether a Muslim
or a Kitabiyah - S.91 IFLA

 Joint Guardianship with mother - the

Mother as court may appoint a Joint guardian with
mother - s92. IFLA
Guardian
 The Court may made variation of power
of guardian of property to such extent as
is necessary for the welfare of the minor.
– S.93 IFLA.

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  In the absence of the legal guardians, the
duty of appointing a guardian for the
protection and preservation of the minor's
property shall be upon the Court, and in
making an appointment the Court shall be
Appointment guided chiefly by considerations of the
minor's welfare - S.90(1) IFLA
of guardians
 The Court may at any time and from time
by the Court. to time remove any guardian, whether a
parent or otherwise and whether of the
person or the property of the minor and
may appoint another person to be
guardian in his place - S.94 IFLA

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 • S.102 IFLA: Where the father and the
grandfather of a minor have died without
appointing a testamentary guardian, any
penghulu, police officer not below the

Guardian of rank of Sergeant, any person having the

custody of the minor, or any person with
Orphan the powers of a Protector under the
Children and Young Persons Act 1947,
may cause the minor to be taken before
the Court and the Court may appoint a
guardian of the minor's person and
property or either of them.

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Applicability of
 S.103 which provides for the application of
Guardianship of
the GIA to Muslims in Fed Territor y was
Ingants Act 1961 repealed by IFLA (Amendment) Act 1994.
(GIA) to Muslims
in Federal  With this repeal, GIA no longer applies to
Territories Muslim in Fed Territory.

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