Child Custody in An Inter-Religious Divorce: A case study between

Malaysia and Indonesia

VATCHIRA WONG RUI FERN (P119302)
FACULTY OF LAW, UNIVERSITI KEBANGSAAN MALAYSIA
P119302@siswa.ukm.edu.my

ABSTRACT
With the rising cases of inter-religious divorce, comes the rising case of inter-religious
children and the matter of court’s jurisdiction. ‘Inter-religious divorce’ refers to a partnership
in which the parties practise different faiths or religions and later on divorced. Non-Muslims
can only marry Muslims in Malaysia after converting to Islam due to the stark divide of civil
and syariah courts' authority over family law. In this article, the main issue addressed is the
issue of jurisdiction of court in the matter concerning child custody in an inter-religious
divorce. Thus, the objective of this article is divided into three parts namely, first, to
determine how child custody works in an inter-religious divorce between civil and syariah
law in Malaysia and Indonesia, secondly, to analyze the factors undertaken in law of custody
between civil and syariah and the third is to understand the legal ramification in an inter-
religious divorce between civil and syariah law on child custody in Malaysia and Indonesia.
This article also be focuses on a comparison between two countries, namely, Malaysia and
Indonesia. The reason for the selection of these two countries is because each country has
civil and syariah law applied in their country respectively which will make an interesting and
fruitful discussion on the comparison between these two countries’ legislations and practices.
The methodology of this article is done by analyzing and in-depth discussion on articles, case
studies, legislations and journals pertaining to child custody. Based on the research done, for
inter-religious family disputes to be peacefully resolved, the legal and judicial institutions
must operate without friction. This can be done by harmonizing the laws and court
jurisdiction. Thus, both Malaysia and Indonesia still have lots of room to improve in matters
concerning custody of inter-religious children.

Keywords: Child custody, Family law, Inter-religious divorce, Indonesia, Malaysia.

1. Introduction
Marriage is a societal issue that affects society as a whole, and when it comes to young
people, it needs to be taken much more seriously. Every marriage will encounter certain
difficulties, but inter-religious marriage has a few added difficulties. "Inter-religious
divorce" refers to a partnership in which the parties practise different faiths or religions
which ends up divorcing. Non-Muslims can only marry Muslims in Malaysia after
converting to Islam due to the stark divide of civil and syariah courts' authority over
family law. This effectively indicates that the marriage and conversion to other religions
issues are tightly entwined. Although religious conversion is a separate issue from marital
problems, people who want to get married across the Muslim–non-Muslim split must deal
 with both of these sets of problems.1 When it involves disputes over a child's custody and
access, it becomes even more challenging. It has long been customary to grant one parent
legal custody of a kid while granting the other access to the child. This is especially
common when the parties are no longer legally wed. This has a lot to do with parental
rights, specifically the right of both parents to be with their children and vice versa. If the
parties defy the court's order, it could result in contempt of court charges or other
consequences like child abduction, abuse, or the court rejecting their application. This
article will be focusing on the topic of child custody, in particularly on the comparison of
the applied civil and syariah law. The reason for the selection of this topic is because
there have been numerous cases where both civil and syariah court fought over the
jurisdiction of child custody concerning inter-religious divorce such as Muslim parent and
Muslim parent. For example, in the case of Indira Gandhi. The objective of this article is
divided into three parts namely, first, to determine how child custody works in an inter-
religious divorce between civil and syariah law in Malaysia and Indonesia, secondly, to
analyze the factors undertaken in law of custody between civil and syariah and the third is
to understand the legal ramification in an inter-religious divorce between civil and syariah
law on child custody in Malaysia and Indonesia. This article will also be focusing on a
comparison between two countries, namely, Malaysia and Indonesia. The reason for the
selection of these two countries is because each country has civil and syariah law applied
in their country respectively which will make an interesting and fruitful discussion on the
comparison between these two countries’ legislations and practices.

1.1. Definition of Child

According to Article 1 of the Convention on Rights of Children (CRC), a child is
defined as;

‘…a child means every human being below the age of eighteen years unless under
the law applicable to the child, majority is attained earlier.’2

1
Chee Heng Leng, Gavin W. Jones and Maznah Mohammad, “Muslim-non-Muslim Marriage, Rights and the
State in Southeast Asia”, in Muslim-non-Muslim Marriage: Political and Cultural Contestations in Southeast
Asia, Gavin W. Jones, Chee Heng Leng, and Maznah Mohammad, Ed. Singapore: Institute of Southeast Asian
Studies, 2009, pp. 1-29.
2
Convention on Rights of Child (CRC), Obtained from
https://www.ohchr.org/en/instruments-mechanisms/instruments/convention-rights-child
 Besides that, the word ‘child’ is define as a young human who is not yet an adult.3
The applicable laws in Malaysia regulate what constitutes a child in accordance with
their particular goals. Despite the numerous laws, Malaysia's definition of a child
under civil and Syariah law is in accordance with Article 1 of the CRC, with the
exception of the Adoption Act of 1952 4, which defines a child as a person under the
age of 21. Relevant laws include those listed in the table below:
Num Statute Provision
.
1 Age of Majority Act 19715 Age of majority is eighteen years
2 The Children and Young Any person who has not completed his or her
Persons (Employment) Act fourteenth year of age while someone above
19666 fourteen but has not completed his or her sixteenth
year of age is considered as young person. No
child or young person shall be required or
permitted to be engaged in any employment other
than those specified in the said Act.
3 Law Reform (Marriage and The minimum age for marriage is eighteen years.
Divorce) Act 19767 However, the Chief Minister of a particular State
may in his discretion grant a license authorising
the solemnisation of a marriage of the girl child
who is under the age of eighteen years and has
completed her sixteenth year.
4 Islamic Family Law Act The minimum age for marriage is eighteen years
(Federal Territory) 1984 for male and sixteen years for female. If any
(IFLA) person wishes to marry below the minimum age
requirement,
5 Child Act 20018 A person under the age of eighteen years
6 Penal Code9 Section 82 stipulates the minimum age of criminal
responsibility is ten years old.
7 Criminal Procedure Code10 Section 117 stipulates that a child (a person who
has attained the age of ten years and below the age
of eighteen) who is alleged to have committed an
offence may be arrested with or without a warrant
and may be detained for the purpose of
investigation.
8 Syariah Criminal Offences The liability for criminal act is attributed to the act
(Federal Territories) Act of a person who has attained ‘baligh’, of sound

3
Oxford Dictionary
4
Act 253
5
Act 21
6
Act 350
7
Act 164
8
Act 611
9
Act 374
10
Act 593
 199711
9 Syariah Criminal Procedure
(Federal Territory) Act 199712
10 Contracts Act 197613
11 Armed Forces Act 197214
mind and of free will.
Section 2 provides for the age of youthful offender
as “an offender above the age of ten and below the
age of sixteen years”
A person under the age of eighteen years does not
have the capacity to enter into a contract
A person below the age of seventeen and a half
shall not be appointed as midshipman or cadet
officer without the consent of his parents and a
recruiting officer shall not enlist any person under
the age of seventeen and a half without the written
consent of his parents.

In summary, Malaysia’s legislations recognises a child as a person of the minimum

age of 10 years and not more than 18 years old.

1.2. Definition of Child Custody

Legal custody involves having a legal responsibility for a child and making
significant decisions regarding the child, such as the child's health, education, and
upbringing in religion. Sole legal custody is granted to one parent, while joint legal
custody is granted to both parents. The "best interest" of the child is typically taken
into account by courts when deciding custody. The child's preference, the child's
physical, emotional, mental, religious, and social needs, the parent's ability to meet
those needs, the child's relationship to parents, siblings, and other family members,
educational opportunities, and any indications of domestic violence, child abuse, or
child neglect in the proposed custodial household or a history of violence are all
things the court may take into account when deciding what is in the best interest of
the child.15 There are two type of custody namely the physical custody and the legal
custody. While most non-custodial parents may be granted visiting privileges even if
they do not have physical custody, physical custody simply means that the child will
reside physically with that parent.16 The long term decision-making obligations
associated with legal custody, on the other hand, include matters such as religious
instruction, school selection, tutoring, cultural education, extracurricular activities,
health care, and more. Unless it can be proven that one parent is somehow unsuitable
11
Act 559
12
Act 560
13
Act 136
14
Act 77
15
‘Legal Custody’, Wex Definitions team, Obtain from https://www.law.cornell.edu/wex/legal_custody
16
Emily Doskow, ‘Nolo’s essential guide to child custody & support’, 2020, 5th edition, ISBN: 9781413326932
 or incapable of making decisions concerning the kid's upbringing, legal custody of
the child is typically granted to both parents (referred to as "joint legal custody") in
child custody matters. This choice is based on what's best for the child and would
take into account a history of drug misuse, domestic abuse, or child maltreatment
(not the parents).17 In cases where a parent have been given sole legal custody of their
child, all decisions regarding such issues of schooling, religion, medical care and
housing will be made alone without having the need to take into consideration of the
other parent’s wishes regarding the child’s upbringing.

1.3. Definition of Inter-Religious Divorce

Inter-religious divorce is connected to an inter-religious marriage, which usually
happens when a marriage is broken or has no hope of reconciliation. Inter-religious
marriage, sometimes known as a "mixed marriage," is a union of two people of
different religions or faiths. Inter-religious unions may sometimes be recognised as
religious unions even though they are frequently recognised as civil unions. This
depends on the tenets of the two parties' respective religions; some forbid inter-
religious unions, while others have varied degrees of tolerance. Each spouse in an
inter-religious marriage often practises their own religion. The decision of what
religion to raise the children in can be a problem in such partnerships.

The right to marriage is guaranteed by Article 16 of the Universal Declaration of

Human Rights for both men and women who have reached majority, "without any
restriction based on race, nationality, or religion." 18 While the majority of Article 16
is reproduced verbatim in Article 23 of the International Covenant on Civil and
Political Rights, the references to racial and religious restrictions are left out. 19 All
men and women have the right to marry, according to Article 17, clause 2, of the
American Convention on Human Rights, "insofar as such conditions do not affect the
principle of non-discrimination established in this Convention," which means that
domestic law restrictions must not be a barrier to this right.20

17
Ibid 16
18
Universal Declaration of Human Rights, Obtained from
https://www.un.org/sites/un2.un.org/files/2021/03/udhr.pdf
19
International Covenant on Civil and Political Rights, Obtained from http://www.hrweb.org/legal/cpr.html
20
American Convention on Human Rights, Obtained from
http://www.cidh.org/Basicos/English/Basic3.American%20Convention.htm
 1.4. Interfaith marriage in Monotheistic Religions
a. Judaism
First of all, religions do not encourage their followers to form relationships or
unions with those who practise other religions, including marriage. Some
vehemently forbid interfaith marriage. Some people might consent to it in
specific instances. The Torah states that you are not allowed to marry them, give
your daughter to their sons, or take their daughters as your own. 21 Jewish scholars
include extramarital relationships in this taboo. Emperor Constantinus forbade
interreligious unions between Jews and Christians in Year 339, and anyone who
did so faced the death sentence. Moses of Couchy commanded Jews who were
married to Christian or Muslim women in 1236 to dissolve their unions.
According to a statement made in 1844 by the Rabbinical Conference of
Brunswick, "the marriage of a Jew with a Christian woman or with any adherent
of a monotheistic religion is not prohibited if the children of such issue are
permitted by state to be brought up in the Israelites religion." Most mixed
marriages are still frowned upon by Jewish scholars today.22

b. Islam
Except for a few scholars from the 20th century, all Muslim jurists agree that
Muslim women cannot wed non-Muslim males. However, Muslim men are
permitted to wed ahl al-kitāb, or non-Muslim women of the Christian or Jewish
faith. According to Sunni scholars, it is permissible for Muslim men to marry
members of the ahl al-Kitāb community in a permanent union (mut'a), although
Shia jurists do not agree.

The marriage is put on hold until the non-Muslim wife's spouse converts to Islam
if she marries a non-Muslim guy. In the event that the non-Muslim husband
converts, no new union is required. During his reign from Year 634-644, the
second Caliph 'Umar forbade Muslim males from getting married to women of
other religions on the grounds that it may allow Muslim men to get married to
non-Muslim women, leaving their Muslim counterparts widowed. This indicates
21
The Holy Bible, Deuteronomy, 7:3
22
Recep Cigdem, “Interfaith marriage in comparative perspective”, 2015, Acta Orientalia Academiae
Scientiarum Hung, Volume 69 (1), 59 -86. Obtained from
https://www.researchgate.net/publication/276924495_Interfaith_marriage_in_comparative_perspective
 that Umar was really worried about the future of Muslim women. He may have
believed that Muslims like non-Muslim women for many reasons but not Muslim
women. He temporarily put an end to such marriages out of fear. A number of
Qur'anic passages and prophetic traditions served as the foundation for the
Muslim jurists' position (hadiths). One of these verses states:

"Do not marry idolaters (unbelieving women) until they believe: A slave woman
who believes is better than an idolater woman, though she allures you. A slave
who believes is better than an unbeliever, despite the fact that he may be
attractive to you. Do not marry (your girls) to unbelievers until they begin to
believe. Unbelievers do draw you to the Fire, but Allah, in His Grace, beckons
you to Paradise and pardon and manifests His signs so that mankind may rejoice
in His praise.”23

c. Christianity
In Christianity, there are various methods for handling interreligious unions.
While some churches condemn it based on Deuteronomy 7:3 and 2 Corinthians
6:14,8, others allow it based on 1 Corinthians 7:12–14: "To the remainder I say,
not the Lord, that if any brother has a wife who is an unbeliever and she consents
to live with him, he should not divorce her. Any woman should not divorce her
husband if he agrees to live with her despite being an atheist. Because the
unbelieving wife is consecrated through her husband and the unbelieving
husband is consecrated through her.”24

2. Malaysia’s & Indonesia’s Civil legislation on child custody

2.1. Malaysia
In Malaysian’s legislations, the meaning of child custody is silent. However, there
are some legislations that governs child custody. There are three types of custody
which includes legal custody, physical custody and access or visitation rights. There
are three main legislations that discusses on child custody in Malaysia, namely the
Federal Constitution25 (also known as ‘FC’), the Law Reform (Marriage and Divorce)

23
Surah al-Baqarah 2-221
24
Holy Bible
25
Federal Constitution
 Act 197626 (also known as ‘LRA 1976’) and Guardianship of Infant Act 1961 27 (also
known as ‘GIA 1961’).

Under the FC, the meaning of child custody is absent. However, there are some
articles that we may refer to on the issue of inter-religious marriages. According to
Article 3 of FC, it states that:

“Islam is the religion of the Federation, but other religions may be practised in
peace and harmony in any part of the Federation.”

This means that any other religion aside from Islam are allowed to be professed
freely in Malaysia. This provision is also similarly reiterated under Article 11 of FC
that states:

“(1) Every person has the right to profess and practise his religion, and subject to
Clause (4) [regarding propagation of religions other than Islam amongst Muslims],
to propagate it.”

Based on these two provisions, it can be deduced that all religions are free to be
practised and professed by Malaysians. Although it does not specifically states about
inter-religious marriages, it is pertinent to note that Malaysians are from a multi-
racial background and inter-religious marriages would be a cultural norm since
freedom of religion is allowed in Malaysia. According to statistics, there has been an
upward trend of inter-religious marriage where it was recorded about 9% of the total
number of marriages in 2019 (18,509 out of 206,253) in comparison to the 2018’s
8% record.28

Now that inter-faith marriage (between non-Muslims only) is established to be legal

in Malaysia, what happens when divorce cases happens and if it involves the matter
of child custody? As previously stated, the meaning of child custody is absent under
the FC. However, when an issue arises on the matter of child custody involving an
26
Act 164
27
Act 351
28
Soon Li Wei, 2020, ‘Marriage of Culture can span unity’, The Malaysian Reserve, Obtained from
https://themalaysianreserve.com/2020/08/18/marriage-of-cultures-can-spawn-unity/
 inter-religious marriage, the jurisdiction of court comes into matter. If the inter-
religious marriage were of civil in nature (e.g. Buddhist and Christian), the case will
be heard by the Civil High Court. Regardless, if the inter-religious marriage were
involving a Muslim partner, it gets rather complicated. The general rule was that if
the marriage was done under Civil law, then the Civil Hight Courts would have
jurisdiction over the case and if the marriage was done under the Syariah law, then
the Syariah Courts will have jurisdiction over it. According to Article 121(1A) of FC
which came into force on 10th June 1988, it states that:

“…the Civil High Courts in Malaysia have no jurisdiction in respect of any matter
that falls within the jurisdiction of the Syariah Courts.”

One thing to note is that, despite the simple rule of differentiating which court has
jurisdictions over an inter-religious marriage, it is important to understand that in real
life cases, there are several other factors that affects which court has the jurisdiction
such as the conversion of spouse during the marriage period, conversion of child
without spouse’s permission and more. Thus, it is especially challenging when
complication arise from an inter-religious marriage, particularly one that involves a
Muslim because of the differences of legislation applied.

The next legislation governing child custody is the LRA 1976. This statute governs
only non-Muslim marriages and divorces in Malaysia and is specifically excluded its
application to persons professing the religion of Islam. However, there is no shortage
of mention of Muslim spouses under the LRA 1976. Articles 47 to 62 of the LRA
1976 which summarised up the prohibition against inter-religious unions, which
states that "one of the parties must convert to the religion of Islam," may be a basis
for ending a marriage.29 Since then, Section 51 of the LRA 1976 was passed as a
legislative measure to solve the problem that arises when one spouse converts to
Islam and the other does not. Due to the conversion of the other spouse to Islam, this
Section allows the non-converting spouse to file a divorce petition in the Civil Courts
against the converted spouse. The non-converting spouse may ask the court to force
the converted spouse to give up custody of children, pay child support, and divide

29
H. Ahmad Sukardja, 2001, ‘Hukum Keluarga dan Peradilan Keluarga di Indonesia, Jakarta: Mahkamah
Agung RI.’, p. 46-47. See Nik Moriani Nik Badli Shah, 1992, Volume 12 Number 1.
 property once the couple is divorced. Section 51 essentially protects the non-
converting spouse's capacity to pursue supplementary reliefs following a divorce
from a converted spouse notwithstanding the LRA 1976's general inapplicability to
Muslims. Either party may request a divorce under the Section 51(1) Act through
Article 164. While a civil court has the authority to dissolve a marriage, this
amendment makes it clear that a civil court, not a Shariah court, will handle the
case.30 This avoids disputes of jurisdiction between the courts and allows for a
quicker divorce process, and allowing a better jurisdiction over child custody matters.
It may be possible to lessen how divorce affects the children's psychological growth.
The amendment would allow a divorce involving a converted spouse in a civil court-
solemnized marriage to be processed by a civil court, allowing a proper handling of
the issue.

When it comes to child custody, Section 2 of the LRA 1976 states that a child of the
marriage is defined as a child of the marriage in question, a child of either party to
the marriage, or a child of one party to the marriage accepted as a member of the
family by the other party, including an illegitimate child or an adopted child of either
party to the marriage. According to Section 88(1) of the LRA 1976, a child may be
placed in the custody of either the father or the mother by a court order, or if
exceptional circumstances make it undesirable for the child to be entrusted to either
parent, the court may place the child in the custody of any relative of the child,
including children welfare, or any other suitable person. This means that anybody
can apply to the court for a child's custody, including the child's parents, relatives, a
welfare organisation, and others. According to Section 88(2) of the LRA 1976, the
welfare of the child is the court's top priority when deciding where to place a child's
custody. However, the court must also take the kid's desires into consideration when
the child is old enough to form an independent opinion. According to section 88(3) of
the LRA 1976, the mother is presumed to have custody of a kid under the age of
seven for the benefit of the child. This assumption can, however, be refuted. While
applying this assumption, the court must take into account the surrounding
circumstances, and it is not required to assign joint custody to all children of a
marriage. It is necessary to assess each child's welfare separately. In light of this,

30
Chew Mei Fun, 2016, ‘Amendment to Law Reform Act 1976 resolves controversy of converted spouse’,
MalaysiaKini, Obtained from https://m.malaysiakini.com/letters/363813
 Section 89(1) of the LRA stipulates that the custody order may be made subject to
any conditions that the court may deem appropriate to impose, and the person
granted custody shall have the right to make all decisions about the child's upbringing
and education. The child's upbringing and education can be decided upon by the
individual who has been granted custody of the child thanks to this section. The order
may also grant the parent who has been denied custody the right to see the child in
accordance with Section 89(2)(d) LRA 1976 or let the kid to visit a parent. In
accordance with Rule 76(2) of the Divorce and Matrimonial Proceedings Rules 1980
(known as ‘Rules 1980’)31, the petitioner or respondent must apply to the registrar for
access to a child, and if the other party agrees, the registrar can decide how much
contact will be granted. This is the parent of the child who did not have custody of
the child's visitation or access rights. According to Section 90(1) of the LRA 1976,
one of the issues the court must resolve during the divorce or judicial separation is
who will have custody of the children. In the acknowledgment of service of the
petition in Form 6 of the Rules 1980, the respondent must specify whether he wants
to contest the custody of the children. Either the mother or the father of the kid may
request a court order stating which parent is unfit to have custody of the child. As a
result, the unfit parent will no longer be eligible for custody of the kid. On the
application of an interested party, the court may nevertheless modify or annul the
custody order. The court can also alter the conditions of the child custody agreement
if it is reasonable and in the kid's best interests. 32 The person granted custody may be
forbidden by the custody order from taking the child outside of Malaysia. This is
applicable in situations where a marital case is ongoing or when one parent has sole
custody of the child. According to Section 101(1) of the LRA 1976, the court may
grant an injunction preventing the other parent from removing the kid from Malaysia
which is also provided under Rule 77 of the Rules 1980.

The last but not least legislation referred to is the GIA 1961. The guardian of the
person of an infant, as defined in Section 3 of the GIA, shall have custody of the
infant and shall be responsible for his support, health, and education. According to
Section 5 of the GIA, a mother must likewise have the same rights and power as the
law accords to a father, and both parents must have an equal amount of each. The

31
The Rules have been set up in pursuant of Section 108(1) of LRA 1976.
32
Section 95 of LRA 1976
 woman also has the same legal right to be the guardian and to hold custody of the
children, which implies that not only the father can be the guardian and have custody
of the child in this situation. This is the same as Section 11 of the GIA, which states
that when exercising the authority granted by this GIA, a judge may give primary
consideration to the infant's welfare while also taking the preferences of either or
both parents into account. The child's current situation is one factor to be taken into
account while determining their welfare. The court shouldn't change the child's
custody if they have been living in an environment they are acquainted with.

2.2. Indonesia
In Indonesia, there are 3 main legislations governing child custody in civil law,
which are the Indonesia’s Civil Code,33 1974 Marriage Law34 and Child Protection
Law35.

The Civil Code's provisions have an impact on almost every aspect of Indonesian
family law, including marriage, divorce, child welfare, property rights, guardianship,
administrators, wills, and executors. However, unlike Malaysia’s LRA 1976 that uses
the term ‘child custody’, Indonesia’s Civil Code uses the term ‘guardianship’.
Parental power may be terminated by a divorce and replaced with guardianship
whereby the decision about the guardianship of the minor children should be made
when the court dissolves a marriage. After the judge has heard the petitions from
members of both parents' families who have close ties to the child, the guardianship
will be decided. A judge may also reevaluate the decision on guardianship if the
mother or the father asks for it due to a change in circumstances. Another key
difference on Indonesia’s Civil Code with Malaysia’s LRA 1976 is that unless they
conflict with or are not covered by specific provisions of the Islamic Law
Compilation, which was compiled between February 2 and February 5, 1988, and
ratified by the Instruction of the President No. 1 of 1991 concerning the
Promulgation of the Islamic Law Compilation, the Civil Code apply to Muslims.36
33
Civil Code, Obtained from https://www.refworld.org/pdfid/3ffbd0804.pdf
34
1974 Marriage Law, Obtained from https://www.expat.or.id/info/Marriage-Law-UU1-1974-Perkawinan.pdf
35
Law No.23/2002
36
Fajar Sugianto, Slamet Suhartono, 2018, ‘The Existence of President Instruction of the Republic of Indonesia
Number 1 Year 1991 on the Widespread of compilation of Islamic law on Indonesian Legal System’, AL-HIKM
Jurnal Hukum & Pranata Sosial 13(2):291, Obtained from
https://www.researchgate.net/publication/330218009_The_Existence_of_President_Instruction_of_The_Republi
c_of_Indonesia_Number_1_The_Year_1991_on_The_Wide_Spread_of_Compilation_of_Islamic_Law_in_Indo
 Unlike Malaysia’s LRA 1976 that specifically states it does not apply to any Muslims
or person married under Islamic law, Indonesia’s legislation was clearer in defining
that Muslims can be governed under this legislation. However, it is pertinent to note
that there are two separate court systems adjudicating family law matters in
Indonesia; the District Courts, which handle family law cases involving non-
Muslims, and the Religious Courts, which handle cases involving Muslims. This dual
court system is similar to Malaysia’s.

According to the 1974 Marriage Law, children under the age of 18 or single parents
are eligible for child custody and maintenance for non-Muslims. A child of an
unmarried couple, however, will not have a civil law relationship with their
biological father or the father's family and cannot file a claim to recover child support
because of this. In this case, the court will not uphold the father's or the child's
claims.37 In the event of a divorce, both parents must continue to support and educate
their children until they marry or become self-sufficient. Even if there are
disagreements, they must both continue to support and educate their kids until they
are old enough to be married or support themselves. Any disagreement may be
decided by a district court. The legal clause makes it clear that both parents still have
obligations and responsibilities for child custody and support in the case of divorce.
The father is primarily responsible for paying child support, although the mother may
also be required to chip in. If the child is not physically or mentally impaired or
placed under guardianship, child support duties last until the child either marries, can
support themselves independently, or reaches a specific age (21 for Muslims and 18
for non-Muslims).38 According to the Act, both parents must agree to a divorce. Child
custody issues can be discussed and resolved during the divorce process or in a
separate, subsequent action. Depending on what the parties to a dispute seek, custody
orders may be very generic or quite specific. Custody orders can include visiting
schedules, rights to input on parenting decisions, and any other details important to a
child's upbringing. Indonesian family law does not accept welfare assessments
created by independent professionals unless there is an active criminal investigation
nesian_Legal_System
37
Asep Wijaya, 2020, ‘Child Custody & Maintenance in Indonesia’, Obtained from
https://www.expat.or.id/info/childcustodyinindonesia.html
38
Anjar Nugrahani, Setiano, Burhanuddin Harahap, Kukuh Tejomurti, 2019, ‘The development of child custody
regulation in Indonesia divorce law’, International Journal of Business, Economics and Law, Vol. 18, Issue 5,
Obtained from https://www.ijbel.com/wp-content/uploads/2019/04/ijbel5-VOL18_237.pdf
 into a claim of physical or psychological abuse. 39 Although it is uncommon, the court
can want to meet the child. In court, minors are not given special counsel unless there
are claims of physical or psychological abuse.

Article 2 of Law Number 23 Year 2002 on Child Protection (Law 2002), which
builds on the protections found in the Indonesian 1945 Foundational Law, lays forth
the fundamental principles of child protection in Indonesia (UUD 1945). Law 2002's
fundamental guiding ideas in general are: Non-discrimination, the best interests of
children, their right to live, develop, and grow, and respect for those opinions are the
first three.40 The Child Protection Law further stipulates that parents have a duty and
responsibility to raise, nurture, educate, and protect their children as well as to foster
them in accordance with their abilities, talents, and interests. They should also work
to prevent their children from getting married when they are still very young.
Children have a right to have contact with both of their parents. However, in non-
Muslim families, Indonesian courts would always give custody to the mother if there
were strong proof that she is morally reprehensible or physically or mentally
incapable.
2.3. Malaysia’s Case Studies
In the case of Masam v Salina Saropa & Anor [1974]41, The foster parents who had
been caring for her son since he was 9 days old for almost two years had been asked
to give him back to her. According to Section 88(4) of the LRA 1976, the High Court
decided to give the foster parents custody of the kid because they had cared for the
infant so tenderly and lovingly.

In the case of Helen Ho Quee Neo v Lim Pui Heng [1974] 42, there is a distinction
between "custody," "care," and "control" of the child, according to Judge
Arulanandom. The care and management of the child includes exercising physical
control over them. While having legal custody also gives you the power to make
decisions about your child's upbringing and education.
39
UNICEF, 2006, ‘Child & Family Welfare Services in Indonesia’, Obtained from
https://www.svri.org/sites/default/files/attachments/2016-12-19/Child%20%26%20Family%20Welfare
%20Services%20in%20Indonesia.pdf
40
Iman Jauhari, 2014, ‘A comparison of child protection law between Indonesia & Malaysia’, Indonesian
Journal of International Law, Volume 12, Number 1, Obtained from
https://scholarhub.ui.ac.id/cgi/viewcontent.cgi?article=1137&context=ijil
41
[1974] 2 MLJ 59
42
[1974] 2 MLJ 51
 In a more recent case of Shamala Sathiyasean V Dr Jeyaganesh C Mogaraja
[2004]43, this is an appeal case brought by the wife (after this known as ‘Appellant’)
against the husband (after this known as ‘Respondent’) arising after the decision of a
High Court on the custody of their two children from their civil marriage. When the
question of the custody of the children arose before the High Court, an interim order
was made by the court granting the appellant care and control of the children and the
respondent the right of access to the children on weekends from 1–2pm. In the
meantime, this matter took on an added dimension when the respondent who had
earlier on embraced the Muslim faith arranged for the conversion of the children to
Islam, without the knowledge of the appellant. On 16 April 2004 the appellant fled
the country with her children and has not returned to date. The judges ruled that the
application be strike out on the grounds that the appellant was found to be in
contempt of the previous High Court’s orders. Allowing her appeal now would only
further cause injustice to the Respondent and the High Court.

2.4. Indonesia’s Case Studies

The first case we will refer to is Mohammad Arief V Survita Widiyanti (2008),44
which was decided by the Religious District Court. The verdict stated that Survita
frequently refused to fulfil marital obligations, she frequently left their children while
her husband was at work, they even have separate residence since August 14, 2008,
and Survita had affairs with non-Muslim men. Therefore, it was evident from the
case that Survita was not qualified for parental rights. Being trustworthy and moral is
one of the prerequisites for receiving this right.

The next case deals with the Indonesia’s Religious Supreme Court decision to grant
the child's grandmother guardianship and custody.45 The judge is taking into account
the fact that the mother of the child is currently missing and that a dishonest
agreement that has been legalized in the form of a statement by Jelly Nonny states
that she will not bring her children if she gets divorced from Suwandi Alain Wijaya
(the Deceased), in other words, that the dishonest agreement in the form of this
statement is the same as an actual deed has been made.
43
[2004] 2 CLJ
44
Decision No. 881/Pdt.G/2008/PA.JB
45
No. 372 K/Pdt/2008.
 Decisions about child custody are not being carried out effectively in the reality.
Even if it is for their children’s ‘best benefit’ or ‘welfare’, neither the child’s father
nor mother have fully embraced it. For instance, in Bojonegoro, East Java, Indonesia,
a 2-year-old boy became the target of a judicial battle over custody when his parents
divorced. The boy was removed from the care of his biological father to his
biological mother in the end.46

3. Malaysia’s & Indonesia’s Syariah law on child custody (Hadhanah)

3.1. Malaysia
Only Malaysian Muslim citizens are subject to Islamic law, which covers only the
topics listed in the Federal Constitution's State List, such as matrimonial law,
charitable endowments, bequests, inheritance, and crimes that are not subject to
federal regulation (matrimonial crimes, crimes involving khalwat (close proximity),
and crimes against Islamic precepts). Each state legislature and state Sultan have the
authority to enact laws governing these issues; the Federal Parliament only has the
authority to do so for the Federal Territories of Kuala Lumpur, Labuan, and
Putrajaya. In Malaysia, there are 14 separate sets of Islamic law because there are 13
states and one federal jurisdiction. The Islamic Family Law (Federal Territories) Act
1984 (also known as ‘IFLTA’)47 was passed by the Federal Parliament in 1984 for
the Federal Territories with the intention of serving as a model law for the other
states, despite the fact that each State has its own Islamic Family Law legislation that
must be implemented exclusively and separately from other States. Examples of
these rules are guardianship laws and hadhanah regulations. Thus, in referencing
under this research article, references to the IFLTA are made to simplify the
discussion. The main focus of child custody arrangements has always been what is in
the child's best interest. It is the factor that all courts, including Shariah Courts
around the world and in Malaysia, give the most weight to. According to Article
121(1A) of the Federal Constitution, the administrative jurisdiction of the Shariah
Courts is now limited to Muslim citizens' personal issues. The courts have authority

46
INSIGHT Journal, 2019, ‘Selected papers from the 6th IABC 2019’, Special issue, Volume 5, Obtained from
https://ir.uitm.edu.my/id/eprint/42298/1/42298.pdf
47
Act 303
 over questions of child support (hadhanah) and child custody in cases involving
child upbringing. To resolve custody disputes, the courts use the single custody
strategy. By way of a court order, the parent who is seen to be better and more suited
for the child is given sole custody. The non-custodial parent is given visitation and
overnight rights while the custodial parent gets custody of the children.

In Malaysia, Sections 81 through 87 of the IFLTA regulate physical custody of

children and contain laws relating to who is eligible for custody of a child, the
requirements for custody, and visitation rights. The sections also cover the conditions
under which the right to custody of a child is lost, the length of custody, custody of
children who are not biologically related to either parent, the court's authority to
order custody, and the circumstances under which custody orders are subject to
conditions. The Shariah courts use religion as their main criterion when deciding a
kid's welfare in child custody matters, which is a stark contrast to the Malaysian Civil
Courts.48 A child under mumaiyyiz (discernment, 9-11 years for a daughter and 7-9
years for a son) will remain with the mother, 49 however a child above mumaiyyiz50
has the option of choosing between the two parents. The mother may forfeit her right
to custody in a number of situations, such as if she marries again and the union is
deemed inappropriate for the child or not in the best interests of the child. In matters
involving child custody, judges routinely prioritize the best interests of the kid. 51
There is a belief that mothers who convert to Islam cannot nurture their children in
accordance with an Islamic way of life, which leads to discrimination against them.
According to the IFLTA, the father is regarded as the primary guardian in terms of
legal custody. This is in line with a previous non-Muslim provision of the GIA. The
GIA was amended in 1999 to make equal guardianship rights available to men and
women, but Muslims are not covered by this Act. The government, at the urging of
women's organizations, issued a directive allowing all mothers, including Muslim

48
Mohamed Azam Mohamed Adil and Rafeah Saidon, 2017, ‘Religion as a Determinant of Child Welfare in
Custody Cases in Malaysia and Classical Islamic Law: A Comparative Overview’, Islam and Civilisational
Renewal, 274(5579), 1-12.
49
Article 81(1) of IFLTA
50
A child above mumaiyyiz means a child that have reach over the age of puberty. The age of puberty differs
according to different Islamic scholar. According to the Hanafiyah, the age of puberty for both male and female
is 15. According to Imam Abu Hanifah, the age of puberty for male is 18 and for female is 17. According to the
Malikiyah, the age of puberty for both male and female is 18. According to the Syafi`iyah and the Hanabilah,
the age of puberty for both male and female is 15.
51
Section 86(1) of IFLTA
 mothers, to sign any document a child needs to for official purposes, such as school
registration, identity card registration, and passport application. To this date, IFLTA
has not yet been amended.52 The Shariah Courts typically awards sole custody when
it comes to child custody for divorcing couples. The non-custodial parent will
typically be given visiting and overnight rights while the court will designate one of
the parents as the child's sole custodian. While the overnight right is subject to
adjudication, frequently dependent on the child's age, the visitation right is outlined
in the Malaysian Islamic Family Law Act's provision. Although this is standard
practice, it is unclear whether the existing strategy will work in the modern Industrial
Revolution 4.0, where people have become accustomed to the digital age.

Even though both are covered by the law under the general heading of
"Guardianship," Syariah law in Malaysia maintains a distinction between the rights
of hadhanah and guardianship. The rights to hadhanah are covered in Sections 81 to
87 of the IFLTA. Custody and hadhanah are terms that are frequently used
interchangeably. Section 81, headed “persons entitled to custody”, provides:

1. “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.
2. Where the Court is of the opinion that the mother is disqualified under Hukum
Syara’ from having the right to hadhanah or custody of her children, the right
shall, subject to subsection (3), pass to one of the following persons in the
following order of preference, that is to say:
a) the maternal grandmother, how-high-soever;
b) the father;
c) the paternal grandmother, how-high-soever;
d) the full sister;
e) the uterine sister;
f) the sanguine sister;
g) the full sister’s daughter;

52
Karamah Undated, 2013, ‘Women’a Rights Within Islamic Family Law in Southeast Asia’, Obtained from
https://karamah.org/continuing-karamahs-islamic-law-lecture-series-abed-awad-esq-speaks-about-gender-and-
family-law-at-howard-university-school-of-law/
 h) the uterine sister’s daughter;
i) the sanguine sister’s daughter;
j) the maternal aunt;
k) the paternal aunt;
l) the male relatives who could be their heirs as ‘asabah’ or residuary;
provided that the custody of such person does not affect the welfare of the
child.
3. No man shall have a right to the custody of a female child unless he is a muhrim,
that is to say he stands to her within the prohibited degree of relationship.
4. Subject to sections 82 and 84, where there are several persons of the same line or
degree, all equally qualified and willing to take charge of the child, the custody
shall be entrusted to the one most virtuous who shows the greatest tenderness to
the child, and where all are equally virtuous, then the senior among them in age
shall have the priority.”

Section 86 of the IFLTA enumerates the power of the court to make orders regarding
custody. It provides:

1. “Notwithstanding section 81, the Court may at any time by order choose to place
a child in the custody of any one of the persons mentioned therein or, where there
are exceptional circumstances making it undesirable that the child be entrusted to
any one of those persons, the Court may by order place the child in the custody of
any other person or of any association the objects of which include child welfare.
2. In deciding in whose custody, a child should be placed, the paramount
consideration shall be the welfare of the child and, subject to that consideration,
the Court shall have regard to:
a. the wishes of the parents of the child; and
b. the wishes of the child, where he or she is of an age to express an
independent opinion.
3. Where there are two or more children of a marriage, the Court shall not be bound
to place both or all in the custody of the same person but shall consider the
welfare of each independently.
 4. The Court may, if necessary, make an interim order to place the child in the
custody of any person or institution or association and the order shall forthwith be
enforced and continue to be enforced until the Court makes an order for custody.”

When a mother is vying for custody of a child, courts frequently assume that she
should have that custody as long as she still meets the requirements for becoming a
hadinah as outlined by Syariah.53 In the matter of Rosnah v. Mohamed Nor (1975)54,
a girl was living with her survivor parent after her father passed away. She was taken
away by an uncle who claimed that her father had nominated him as her trustee and
guardian before he passed away. The mother asked the judge for custody. According
to the Kadi, the mother had a superior claim to custody. The uncle's claim was
denied, and the Appeal Board upheld this judgement.

3.2. Indonesia
Similarly, to Malaysia’s syariah law, Indonesia’s syariah law discusses on hadhanah
in regard to child custody. Hadhanah, according to the Indonesian Islamic
encyclopedia, refers to the responsibility of watching over or caring for infants or
young children who are unable to maintain and manage themselves. Every child has
the right to receive care and education from both parents. As long as they have the
capacity, the child's parents are the most crucial individuals for the job. 55 The
obligation of parents to provide for and educate their children as best they can be the
subject of this Hadhanah. This upkeep takes care of the child's fundamental
requirements as well as the issue with education. 56 M. Yahya Harahap proposes the
following definition of childcare in his book Discussion on National Marriage Law:57
a) The responsibility of parents to supervise, provide appropriate services and
provide for the living needs of children by parents.
b) The responsibility in the form of supervision and service as well as the adequacy
of the living life is continuous until the child reaches a legal age limit as an adult
who can stand alone

53
Section 82 of IFLTA
54
(1975) 1 J.H. (1) 42
55
Nasution, 1992, Ensiklopedi Islam Indonesia (Jakarta: Djambatan), p 269
56
Amir Nuruddin dan Azhari Akmal Tarigan, 2004, ‘Hukum Perdata Islam di Indonesia’, Kencana: Jakarta
page. 293
57
Harahap, M Yahya, 2005, ‘Hukum Acara Perdata’, Jakarta: Sinar Grafika p.233
 The decision of child custody or hadhanah is based on the period of mumayyiz,
which is similar to Malaysia’s syariah law. However, in Indonesia, the period of
mumayyiz is further detailed out into two division of period namely the period before
mumayyiz and during the mumayyiz period. According to an author in the book of
fiqh munakahat, the period before mumayyiz is the period when a child is born till
the age of seven or eight years old. At this time, the child has not become mumayyiz
as theu are unable to distinguish between what is beneficial and dangerous. Until a
certain age, a child needs assistance with activities of daily living including feeding,
dressing, washing himself, and even scheduling wake and sleep times. As a result,
the person who looks after the child must have compassion, patience, and a desire
for the child to grow up to be good (pious). Women typically experience these
conditions. The ulema explicitly demonstrates that from the mother's side, they are
more entitled to have children than to observe hadhanah (caring for child). 58 Thus,
the Indonesian’s Islamic law dictates that a child needs their mother more, similarly
to Malaysia’s Section 81 of IFLTA.

In the event of a divorce between a husband and wife who are Muslims, the
requirements of the Compilation of Islamic Law as well as the ethical precepts of
Islam must be followed when determining who is entitled to custody or maintenance
of children. Articles 98 to 112 of the Compilation of Islamic Law, which particularly
govern guardianship in Articles 107 to Article 112, use the word "childcare" to
regulate the authority of parents towards their children. 59 The term ‘hadhanah’ can
be found used under Article 98 and in Article 105 which states:

Article 98
1. “The age limit for a child who is able to stand alone or is an adult is 21 years, as
long as the child is not physically or mentally flawed or has never married.
2. His/her parents represent the child regarding all legal acts inside and outside the
Court.
3. The Religious Court can appoint one of the closest relatives who is able to fulfil
this obligation if the two parents cannot afford it.”

58
Abdul Rahman Ghazaly, 2003, ‘Fiqh Munakahat’, (Jakarta: Pranada Media Gruop, cet.ke-3), page.185
59
Compilation of Islamic Law.
 Article 105

“In the event of a divorce:

1. The caring of a child who is not yet pregnant or not yet 12 years old is the right of
his mother;
2. The maintenance of a child who has been mumayyiz is left to the child to choose
between his father or mother as the holder of his care rights;
3. Maintenance costs are borne by his father.”

In conclusion, when a divorce occurs, the mother is responsible for the support of any
children under the age of mumayyiz (between 7 and 12 years old). The women in a
straight line upward from the mother, the father, the women in a straight line upwards
of the father, the sister of the child in question, or blood relatives of women on the
side line of the father can assume the woman's position as the holder of custody rights
in cases where the mother has passed away. Therefore, the law accords priority to the
mother of the child when it comes to custody.60 Children who have previously
achieved mumayyiz are free to select either their mother or father to exercise their
entitlement to maintenance. No matter what the child decides, the father of the child is
still obligated to pay child support to the best of his abilities, regardless of who has
custody. He must pay child support at least until the child is old enough to care for
him or herself or is 21 years old. This clause pertains to the Islamic notion that the
family's primary provider should be the father. 61 Even though many women today
work and have successful jobs, a father's responsibility to pay child support still
stands.

3.3. Malaysia’s case studies

In the case of Mansor v Che Pah [1975],62 The children moved in with the defendant
following the parties' divorce (mother). The youngest child was two years old, while
the two older ones were nine and eight. Later, the father made the decision to submit

60
Adib Bahari, 2012, ‘Prosedur Gugatan Cerai + Pembagian Harta Gono Gini + Hak Asuh Anak’, Pustaka
Yustisia, Yogyakarta, page.166.
61
Indah Dewi Megasari, Gunarto & Ors., 2018, ‘Giving child custody right to the father, in case the child has
not mumayyiz (Study of Decisions of Religious courts Judges in South Kalimantan)’, Southeast Asia Journal of
Contemporary Business Economics and Law, Vol. 16, Issue 5, ISSN 2289-1560.
62
[1975] 2 JH 261
 a custody request for all three kids. The youngest child was still a breastfed infant at
the time, while the older children had already reached mumayyiz (the age of
discernment). The court gave the older kids the option of choosing who they would
like to live with, and they decided to stay with the mother. Based on a hadith that
stated a mother had a better right to custody of her infant kid, the Kadi granted the
mother custody of the third child.

In the case of Zaliha v Rahmat [1975],63 When the couple got divorced, they each
got custody of one of their two kids. The defendant had custody of his older boy,
who was four years and nine months old, while the plaintiff had custody of her two-
year-old son. The plaintiff then demanded legal custody of the elder son. The Kadi
granted the request on the grounds that a mother had a superior claim to her child's
hadhanah before the latter reached mumayyiz. The defendant was ordered by the
court to give the boy to his mother. This case demonstrates that judges in Malaysia
have consistently used the welfare of the child as the basis for allocating custody to
parties in custody disputes involving Muslims.

In Myriam v Mohamed Arif [1971],64 the High Court ruled that the welfare of the kid
must come first in determining custody of a child of divorced parents under both
Civil law and Islamic law. The interests of each child must be taken into account
when there are multiple children. Even in cases when such consideration would result
in the parents sharing custody of the kids, the court upheld this. In that case, the court
had recorded a consent order providing the defendant custody of the couple's two
children, an eight-year-old girl and a three-year-old boy, at the time of divorce (the
father). Later, the mother of the lawsuit remarried a guy who was not a stepfather to
the girl child. The plaintiff then applied for the rights to the custody of both her
children. The GIA 196 will apply to the case as long as the relevant laws do not
conflict with Islamic law or Malay customs, the court ruled in interpreting the
meaning of Section 45(g) of the Selangor Administration of Islamic Law Enactment
of 1952. The court determined that the child's wellbeing was a factor that did not
conflict with the tenets of Islamic law. This was taken into account when it was
decided to give the boy's mother custody until he was seven or eight and the father

63
[1975] 5 JH 316.
64
[1971] 1 MLJ 265
 custody of the girl. Additionally, it granted each parent fair visitation and short-term
custody of their child (during breaks from school).

3.4. Indonesia’s case studies

Although by law, a mother has the main right to seek out child custody, the Court
may decide to grant the custody to the father in regard to the child’s welfare. Bearing
in mind, the child’s welfare is the top priority which is similar to the decisions made
by Malaysian Syariah courts.

In the decision of No. 0854 / Pdt.G / 2013 / PA BJM,65 due to the mother's behaviour
and morality, it was indicated that a kid born to a marriage at the age of 6 needed
love and supervision and needed to be raised by a responsible adult. It was therefore
agreed to grant the child's father custody in order to ensure the child's healthy mental
development. Judge is giving it considerable thought due to various factors, including
bad behaviour, intoxicated people, gamblers, drug users, persecution, and the fact
that fathers are given custody rather than mothers. Judges' consideration in deciding
the rights of a child foster child who falls to his father is certainly with several
considerations, such as:
i Her mother often has relationships with other men (cheating)
ii His mother is too hard on children
iii His mother often goes to discotheques
iv His mother is often drunk
v His mother often uses illegal drugs.

Next is the decision Number 381 / PDT.G / 2017 / PA.BJB. 66 Considering, that the
plaintiff in his lawsuit dated September 6, 2017, has filed a hadhanah lawsuit to
which the child custody was given to the father with reasons are:
i Mothers often leave and abandon these three children to go for a long time
between 1 (one) month to 2 (two) months without being known where she was;
ii The mother went to seek "income" but what work does the Plaintiff do not know;
iii Mothers often say they go out of town or Java, but at the same time they are still
in the Banjarbaru hotel;

65
Banjarmasin Religion Court verdict number 0854/Pdt.G/2013/PA BJM
66
Registrar of the Banjarbaru Religion Court with Number 381/Pdt.G/2017/PA.Bjb, dated September 6, 2017
 iv Mother admitted working in the field of car rental and buying and selling scrap
metal, but it was not clear where it was;
v The child is left as is so thin and lacking in nutrition, because he expected the
first child ( a Senior High School Student) to take care of his brother and the
second child is still in elementary school if at night, and if the afternoon is
handed over to others to be cared.

4. The law on custody: Civil vs Syariah

4.1. Comparison of Civil & Syariah legislation on child custody
The following table is the summarized discussion on the comparison of Malaysia’s
and Indonesia’s civil and syariah legislation on child custody:

Malaysia Indonesia
Civil Syariah Civil Syariah
 Article 121(1A)  Sections 81  The Civil Code's  Articles 98 to
of Federal through 87 of the provisions have 112 of the
Constitution IFLTA regulate an impact on Compilation of
divides the physical custody almost every Islamic Law,
Court’s of children and aspect of which
jurisdiction contain laws Indonesian particularly
between Civil for relating to who is family law, govern
non-Muslims & eligible for including guardianship in
Syariah for custody of a marriage, Articles 107 to
Muslims only. child, the divorce, child Article 112, use
 Section 51 of the requirements for welfare, property the word
LRA 1976 custody, and rights, "childcare" to
allows the non- visitation rights. guardianship, regulate the
converting  According to the administrators, authority of
spouse to file a IFLTA, the wills, and parents towards
divorce petition father is regarded executors. The their children.
in the Civil as the primary Civil Code  When a divorce
 Courts against guardian in terms applies to occurs, the
the converted of legal custody. Muslims as well mother is
spouse. The non- as long as it is responsible for
converting not in conflict the support of
spouse may ask with the Islamic any children
the court to force Law under the age of
the converted Compilation. mumayyiz
spouse to give up  According to the (between 7 and
custody of 1974 Marriage 12 years old).
children, pay Law, children
child support, under the age of
and divide 18 or single
property once the parents are
couple is eligible for child
divorced. custody and
 Amendments to maintenance for
Section 51(1) of non-Muslims.
LRA 1976  Article 2 of Law
allows parties to Number 23 Year
filed for a 2002 on Child
divorce in a civil Protection (Law
court, according 2002) states that
to the law the for non-Muslim
union was first families,
made. This will Indonesian
resolve any courts would
complication of always give
child custody in custody to the
an inter-religious mother if there
divorce. were strong
 Section 88(2) of proof that she is
the LRA 1976, morally
the welfare of the reprehensible or
 child is the physically or
court's top mentally
priority when incapable.
deciding where
to place a child's
custody.
 Section 5 of the
GIA states that a
mother has the
same legal right
to be the
guardian and to
hold custody of
the children as of
the father.

4.2. Factors considered in an inter-religious child custody

In both Islamic and civil law, aside from the issue of religion, factors that are taken
into account in assessing the child's best interests are, to some extent, similar. Islamic
law and civil law, for example, both take into account the actions of the parties as
well as the child's age and gender, wishes, and parent's ability to raise the child. In
establishing an order relating to the child, the law prioritises the welfare of the kid.
The child's wellbeing must come first 67 before considering the wishes of the parents
and the kid when that youngster is old enough to form an independent opinion,
subject to the welfare of the child According to Section 88(4) of the LRA, the court
must take each child's welfare into account on an individual basis where there are
multiple children in a marriage. This is due to the possibility that what is excellent
and beneficial for one child may not be the same for another, and vice versa. The
courts will usually adopt these three main considerations in determining the custody
of the children, namely, the life of a child should not be disrupted from the change of
custody, secondly, the lifestyle of the parents will only be relevant if the welfare of

67
Section 11 of GIA and Section 88(2) of LRA 1976.
 the child is affected and the third is that it is better for a child below the age of 7
years old to stay with the mother.68

In addition to welfare, religion is a significant factor in determining child custody.

The significance of religion in the custody debate was emphasised by eminent
Hanbali scholar Ibn Qudamah in the 12th century. "Custody is intended to care for
the child, so it should not be given in a way that will be adverse to his wellbeing and
his religious devotion," he stated. 69 Different approaches to this problem have been
taken by Muslim jurists. According to the Syafi'i and Hanbali schools of law, the
custodian must be an adherent of Islam in order to be granted custody of the kid. 70
This choice is based on the notion that if a kid is handed to a non-Muslim custodian,
that person will shape the child's beliefs and will not raise the child in accordance
with Islam. One of the main goals outlined in the Maqasid al-Syariah is to preserve
and protect the child's religious identity (The higher objectives of syariah). On the
other hand, the Hanafi and Maliki schools came to a different conclusion. It is not
necessary to profess Islam in order to work as a custodian.71

4.3. Solution
When it comes to specific marriages like civil law marriage and Islamic marriages,
the law has been straightforward in its rights and protection of the individual, and in
this case, child custody without any rising concern of any complicated issues.
However, our research today is regarding child custody from inter-religious divorces,
particularly between non-Muslim and Muslim, which concerns two separate
governing laws. In 2016, we have seen there was an amendment of Section 51(1) of
LRA 1976 which allows both parties of the case to file for a divorce in civil court in
accordance with the initial law of union made on. This gives less complication when
it involves child custody in a divorce situation. However, in 2017, following
objections from conservative Muslims, Malaysia's government has eliminated a

68
Section 88(3) of LRA 1976
69
Dr Mohamed Azam Mohamed Adil, 2017, ‘Cusotdy: Religion of Minors’, The News Straits Time, Obtained
from https://www.nst.com.my/opinion/columnists/2017/05/240608/custody-religion-minors
70
Dr Mohamed Azam Mohamed Adil, 2022, ‘Is religion the sole factor in determining the child welfare in
custody issues?’, Institute of Islamic Understanding Malaysia, Obtained from https://www.ikim.gov.my/new-
wp/index.php/2022/03/10/is-religion-the-sole-factor-in-determining-child-welfare-in-custody-issues/
71
Ahmed Fekry Ibrahim, 2015, ‘The best interest of child in pre-modern Islamic Juristic Discourse and
Practise’, The American Journal of Comparative Law, Volume 63, No. 4,
pp. 859-891 (33 pages), Obtained from https://www.jstor.org/stable/26425443
 provision from the new LRA that would have forbade children from being converted
to Islam with the approval of just one parent.72 The revised Article 88 (A) had
specified that, in the event that a non-Muslim spouse converted to Islam, the
conversion of their kid would be contingent upon the agreement of both parents and
subject to the wishes of the child when the child turned 18. Tan Sri Razali Ismail,
chairperson of the nation's Human Rights Commission (SUHAKAM), expressed
dismay at the removal of the clause, noting that it was meant to "resolve interfaith
custody problems between Muslim and non-Muslim parents." 73 It would have created
consistent standards for balancing the constitutional rights of parents in the exercise
of their right to freedom of religion with the principle of the best interests of the
child. The removal of the clause will have significant ramifications for families when
one parent chooses to convert to a different faith because Sharia courts will still hear
cases of unilateral conversions even if divorce is a civil law issue.

In a statement, Datuk Seri Azalina Othman, a Minister in the Prime Minister's

Department, stated that "the government was amending the Bill to prevent any
conflict with the Federal Constitution, and that the amendment was in line with the
"stare decisis" doctrine, which requires courts to look to precedent when making
decisions and where the highest court's decision on the interpretation of Article 12(4)
of the Federal Constitution is bound." 74 According to Malaysian Bar interpretation,
clauses in the Constitution mandate that all phrases in the singular also encompass
the plural.75 According to Article 12(4), a person under the age of 18 must have "his
parent or guardian" decide on their faith. Rooney Rebit, who converted to
Christianity at the age of 24 after his parents changed from Christianity to Islam

72
World Watch Monitor, 2017, ‘Malaysia withdraw law clause that could have resolved ‘inter-faith child
custody conflicts’’, Obtained from https://www.worldwatchmonitor.org/2017/08/malaysia-withdraws-law-
clause-that-could-have-resolved-inter-faith-child-custody-conflicts/
73
Veena Balbulal, 2017, ‘SUHAKAM disappointed over removal of Clause 88A from Law Reform Bill on
religious conversion’, The New Straits Time, Obtained from
https://www.nst.com.my/news/nation/2017/08/266539/suhakam-disappointed-over-clause-88a-removal-law-
reform-bill-religious
74
Syed Jaymal Zahiid, 2017, ‘Putrajaya withdraws Bill banning unilateral child conversions’, The MalayMail,
Obtained from https://www.malaymail.com/news/malaysia/2017/08/07/putrajaya-withdraws-bill-banning-
unilateral-child-conversions/1437417
75
Jiwi Kathaiah, 2014, ‘What is ‘singular’ or ‘plural’ in our written law?’, MalaysiaKini, Obtained from
https://www.malaysiakini.com/letters/266280
 when he was a youngster, had his rights upheld by the Federal Court in a landmark
decision in March 2016.76
Rebit could not be said to have formally professed Islam, the judge continued,
because he had not chosen to convert to Islam. He does not require a Sharia court
decree to be expelled from Islam, according to Judge Yew Ken Jie's decision,
because he is the only one who can exercise his constitutional right to freedom of
religion. "His conversion to Islam was not of his own free will, but rather as a result
of his parents' conversion when he was a little child," she continued. He is not
disputing the truth of his conversion while still a minor. He was able to use his right
to freedom of religion now that he was a major, and he decided to follow
Christianity. Rebit had not contested his conversion to Islam because if he had, a
Sharia court would have been required to decide the case since secular courts have
determined that they lack jurisdiction over Islamic matters. Instead, he invoked his
constitutionally protected right to freedom of religion. For this reason, the
International Institute of Advanced Islamic Studies (IAIS) Malaysia has suggested
policy reforms linked to conversion in its position papers titled "Conversion in
Malaysia: Issues and Reform Proposals (2012)" and "Penukaran Agama Kanak-
kanak: Isu dan Cadangan (2016)."77 One of the proposals is to first make sure that
the conversion issue does not interfere with ensuring the kid's welfare and the
consequent parental responsibility for the child. Second, to allow or revamped
Section 88A to bilateral conversions of child. Thirdly, to create a unique branch of
the legal system with mixed jurisdiction where judges of civil and syariah law can
convene and decide matters of the child religious identification and conversion.

5. Conclusion
In conclusion, although with new amendments made under Section 51(1) of LRA 1976
that allows clearer view on which jurisdiction should an inter-religious child custody
matter be heard on, there are still many more new issues when it concerns child custody.
For an example, the matter of conversion of children by a parent. This has caused the
legal and judicial systems to have lost the public's trust as a result of interfaith divorces
and custody disputes in a competing legal and court system. To date, the proposed
76
Ida Lim, 2016, ‘Sarawakian Christian Rooney Rebit finally gets new IC without ‘Islam’’, Malaysiakini,
Obtained from https://www.malaymail.com/news/malaysia/2016/11/10/sarawakian-christian-roneey-rebit-
finally-gets-new-ic-without-islam/1246725
77
Mohamed Hashim Kamali, 2018, ‘Islam and Civilization Renewal’, International Institute of Advanced
Islamic Studies (IAIS) Malaysia, Volume 9, Number 3.
revisions on allowing a bilateral agreement of conversion are still a bill, and the
Parliament has not passed any laws to address the issue. Political will is missing, making
legislative reform and policy development impossible, and no significant steps have been
done to address the issue. It is argued that for inter-religious family disputes to be
peacefully resolved, the legal and judicial institutions must operate without friction. This
can be done by harmonizing the laws and court jurisdiction. The amendment of Section
51 has been a right step into the future, but the revocation of Section 88(A) has moved us
back to the same place we have started since the jurisdiction of inter-religious children are
still unclear of, when it concerns the conversion by a parent. Thus, based on both
Malaysia’s and Indonesia’s civil and syariah law, there is still a lot of rooms to improve,
particularly concerning the status of inter-religious children.