Faridah bte Daud & Anor v Mohd Firdaus Abdullah @ Jettle Francis [2005] 1

SHLR 153
Shariah Law Reports (ShLR) · 18 pages

SHARIAH SUBORDINATE COURT (KUCHING, SARAWAK

AWANG SUHAILI @ SUHAIDI BIN LEDI J
CIVIL CASE NO 209 OF 1996
13 October 1998
Case Summary

Islamic Family Law — Ccustody and Maintenance of child — Qualification for custody — the
preference of custody — Plaintiff had remarried — Both children had reached the age of
discernment (mumayyiz) — Who has the right to custody as well as the amount of maintenance for
children — Islamic Family Law Ordinance, Sarawak 1991 and Hukum Syarak

Shariah Civil Procedure — To add Palintiff's mother, as a second Plaintiff — application was made
too late that is after the trial is concluded, all evidence have been taken and only awaiting the
submission and the verdict — Whether any addition of party at this stage will affect the Defendant's
case, prolong the trial thus not in the interest of justice or fairness — Shariah Civil Procedure
Ordinance Sarawak 1991

This case is pertaining the claim of right of custody and maintenance of child in the Civil Case No 209/96
between the Plaintiff, Faridah binti Daud and the Defendant, Mohd Firdaus bin Abdullah @ Jettle Francis.
The Plaintiff, a linguist attached to Justice Department, Kuching, Sarawak, resides at Kem Batu Kawa,
Kuching. The Defendant, a supervisor attached to LNG Filling, Brunei, resides in Brunei Darussalam.
When in Sarawak, the Defendant resides at No 39, Government Quarters, Jalan Kubu, Limbang.

In this case, the first Plaintiff and the Defendant were married on 14 April 1984 in Limbang with a legal
documentation Certificate of Marriage No 31805. The couple were blessed with 2 daughters, namely:

Fify Farisa (P) born on 2 August 1985, now aged 13 years. Since her birth, she has been raised by
Mordiah binti Ali, the Plaintiff's mother.

Filza (P) born on 17 January 1988, now aged 10 years, schooling at SRK St Edmund, Limbang and being
taken care and brought up by the Defendant's mother, Sipi Sore and by the Defendant's wife, whilst the
Defendant is in Brunei.

Following the divorce on 22 June 1994, no order was made with regards to custody and maintanence of
the children. Maintenance of Fify Farisa was borne by the Plaintiff and Filza's maintanence by the
Defendant, following the divorce. On 26 December 1996, Shariah High Court Sarawak, Kuching
approved the 'ex-parte' request made by the first Plaintiff for a Temporary Order on Custody/Injunction in

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 Faridah bte Daud & Anor v Mohd Firdaus Abdullah @ Jettle Francis

Civil Case 4/96 MTS. However, the order was unable to be carried out effectively by the bailiff, an officer
and two of the Plaintiff's representatives in Limbang.

Before the closing of submissions were made, the Plaintiff via a Request Notice and Affidavit dated 7
October 1998, requested the court to include Mordiah binti Ali, aged 51 years, residing in No 34, Kpg.
Santubong, Kuching, [*154]
as a second Plaintiff. Mordiah is the mother of the Plaintiff and maternal grandmother to the children,
Fify Farisa and Filza.

In the Plaintiff's affidavit of request, in paragraph;

it is necessary and important to include the Plaintiff's mother, Puan Mordiah binti Ali (IC ?460–13–5059)
as a second Plaintiff;

the position of Puan Mordiah binti Ali as the mother to the Plaintiff and mother-in-law of the Defendant,
is related to the custody claim;

The Defendant filed an affidavit of objection dated 8 October 1998, which stated:

with regards to the 2 paragraph of the Affidavit, the request is objected and the Defendant submitted that
this application was made too late that is after the trial is concluded, all evidence have been taken and only
awaiting the submission and the verdict;

The Defendant believes that any addition on either party at this time will affect the Defendant's case,
prolong the trial and this cause of action is unsettling and not in the interest of justice or fairness. The
Defendant disputed the motive and purpose of this addition and questioned why the inclusion was not
considered from the start or at least before the Defendant and his witnesses were called during the
proceedings of the trial;

The Defendant requested the Court to consider the provision in section 7 (2)(3) of the Shariah Civil
Procedure Ordinance Sarawak 1991.

The Court after hearing both sides of their verbal argument, with the Plaintiff's request being made in
Court, arrived at the decision to approve the Plaintiff's request to include Mordiah binti Ali as a second
Plaintiff.

The Plaintiff in this case applied for custody rights of both children, Fify Farisa and Filza, as well as
maintanence rights of both children of RM300.00 per month.

The facts that have become an issue of question in this case is, who has the right to custody according to
Hukum Syarak (Islamic rule) and Islamic Family Law Ordinance, Sarawak 1991, as well as the amount of
maintenance for each child. Other important issues that were raised by both parties, pertains to the
'Statutory Declaration' filed by the Defendant on 5 April 1995 in Limbang, and handed over to the Court
on 20 December 1996, being made an Exhibit SD on 4 August 1997 by the Plaintiff, an issue that the first
Plaintiff had remarried, qualifications for custody, the preference of custody and the final issue raised was
that both children had reached the age of discernment (mumayyiz) and had the right to make their own
individual choices.
Held
(1) Custodial rights of Fify Farisa and Filza be awarded to the second Plaintiff Mordiah binti Ali;

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(2) The right to visit be awarded to the Defendant at any appropriate time that does not interfere with
the children's schedule; [*155]
(3) The Defendant was ordered to pay child maintanence at the rate of RM100.00 per month for Fify
Farisa and RM100.00 per month for Filza, payment to be made through the Plaintiff's solicitor;
(4) The cost of the proceeding to be borne by both parties individually;
(5) All orders take effect immediately.

Kes in adalah tuntutan hak hadhanah dan nafkah anak dalam Kes Mal Bil. 209/96 di antara Plaintiff,
Faridah binti Daud, dengan Defendan, Mohd. Firdaus bin Abdullah @Jettle Francis. Plaintif bekerja
sebagai Jurubahasa di Jabatan Kehakiman, Kuching, Sarawak dan tinggal di Kem Batu Kawa, Kuching.
Defendan bekerja sebagai Supervisor di LNG Filling, Brunei dan tinggal di Negara Brunei Darulssalam.
Di Sarawak Defendan tinggal di No. 39, Goverment Quarters, Jalan Kubu, Limbang.

Dalam Kes ini Plaintif pertama dan Defendan telah berkahwin pada 14 April 1984 di Limbang dengan No
Surat Perakuan Nikah 31805. Pasangan tersebut telah dikurniakan dengan dua orang anak perempuan
iaitu:

Fify Farisa (P) lahir pada 2 Ogos 1985 sekarang berumur 13 tahun. Beliau sejak lahir hingga sekarang
dijaga oleh Mordiah binti Ali iaitu ibu Plaintif.

Filza (P) lahir pada 17 Januari 1988 sekarang berumur 10 tahun bersekolah di SRK St Edmund Limbang
dijaga oleh ibu Defendan bernama Sipi Sore dan isterinya manakala Defendan berada di Brunei.

Selepas perceraian pada 22 Jun 1994, tiada perintah dibuat berhubung hak hadhanah dan nafkah anak.
Mahkamah Tinggi Syariah Sarawak, Kuching telah meluluskan permohonan 'ex-parte' oleh Plaintif
pertama bagi mendapatkan Perintah Sementara Hadhanah/Injunksi dalam Kes Mal 4/96 MTS. Walau
bagaimanapun perintah tersebut tidak dapat dilaksanakan oleh bailif, seorang anggota police dan dua
wakil Plaintif di Limbang.

Sebelum penggulungan hujah dibuat, pihak Plaintiff melalui Notis Permohonan dan Afidavit bertarikh 7
Oktober 1998 telah memohon kepada Mahkamah untuk menambah Mordiah binti Ali berumur 51 tahun
dan tinggal di No. 34, Kpg. Santubong, Kuching sebagai Plaintif kedua. Mordiah adalah ibu kepada
Plaintif dan nenek sebelah ibu kepada anak-anak iaitu Fify Farisa dan Filza.

Dalam afidavit permohonan Plaintif, diperenggan;

adalah perlu dan penting memasukkan nama ibu kepada Plaintif iaitu Puan Mordiah binti Ali (KP 460551-
13-5059) sebagai Plaintif kedua;

Kedudukan Puan Mordiah binti Ali sebagai ibu kepada Plaintif dan ibu mertua kepada Defendan adalah
berkaitan dengan hadhanah;

Defendan telah mengemukakan afidavit bantahan bertarikh 8 Oktober 1998 yang menyatakan;

perenggan 2 Afidavit berkenaan adalah dibantah dan pihak Defendan menghujahkan bahawa permohonan
ini adalah terlalu lewat iaitu setelah tamat perbicaraan dan semua keterangan diambil dan hanya menanti
penggulungan hujah serta keputusan;
[*156]

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Pihak Defendan percaya, sebarang penambahan mana-mana pihak pada masa ini akan memudaratkan kes
Defendan, melengahkan perbicaraan dengan jalan lain tidak meyenangkan dan tidak adil. Defendan
mempertikaikan motif dan tujuan penambahan ini tidak dibuat daripada mula atau sekurang-kurangnya
sebelum Defendan dan saksi-saksinya dipanggil terlebih dahulu atau semasa prosiding perbicaraan masih
berlangsung;

Pihak Defendan memohon Mahkamah mempertimbangkan peruntukan seksyen 7(2)(3) Ordinan Acara
Mal Syariah Sarawak 1991;

Mahkamah setelah mendengar penghujahan lisan pihak-pihak berhubung dengan permohonan Plaintif
dalam Mahkamah, telah memutuskan untuk meluluskan permohonan Plaintif menambah Mordiah binti
Ali sebagai Plaintif kedua.

Plaintif dalam kes ini memohon hak hadhanah anak Fify Farisa dan Filza, juga nafkah anak sebanyak
RM300.00 sebulan untuk dua orang anak tersebut.

Fakta yang menjadi isu di dalam kes ini ialah berkaitan siapakah yang layak diberi hak hadhanah
mengikut Hukum Syarak dan Ordinan Undang-Undang Keluarga Islam, Sarawak 1991, juga kadar nafkah
anak setiap seorang;.

Seterusnya isu-isu penting lain ditimbulkan oleh pihak-pihak di dalam kes ini ialah berkaitan 'Deklarasi
Statutori' yang dibuat oleh Defendan pada 5 April 1995 di Limbang yang diserahkan kepada Mahkamah
pada 20Disember 1996 dan telah dijadikan sebagai Eksibit SD pada 4 Ogos 1997 oleh pihak Plaintif, isu
bahawa Plaintif pertama telah berkahwin lain, kelayakan-kelayakan hadhinah, keutamaan hadhanah dan
isu terakhir yang ditimbulkan ialah bahawa anak-anak tersebut telah mumayyiz dan mempunyai hak untuk
membuat pilihan.

Diputuskan

(1) Hak hadhanah Fify Farisa dan Filza diserahkan kepada Plaintif kedua iaitu Mordiah binti Ali;.
(2) Hak untuk melawat dan menziarahi diberi kepada Defendan pada bila-bila masa yang sesuai tanpa
menjejaskan anak-anak.;
(3) Diperintahkan kepada Defendan membayar nafkah anak bernama Fify Farisa sebanyak RM100.00
sebulan dan Filza RM100.00 sebulan melalui pihak Peguam Plaintif;
(4) Kos prosiding ditanggung oleh pihak masing-masing;
(5) Kesemua perintah berkuatkuasa serta merta.]

Verses of al Quran referred to

Surah al-Baqarah, 2: 217, 256

Surah al-Tahrim, 66 ; 6
Hadiths of Prophet (saw) referred to

Hadith Riwayat Bukhari and Muslim

HadithRiwayat Ahmad and Abu Daud

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Hadith Riwayat Abu Hurairah

[*157]
Juristic Opinions referred to

Muaiyyin al-Hukkum, p12

Al-Mufassal fi Ahkam al-Mar'ah wa al-Binti al-Muslim, p16

Wahbah Az-Zuhaili, Al Fiqh al-Islami Wa Adillatuhu, Volume 5, p 727

Bedran Abu Ainain, Al Fiqh Muqaranah li al-Ahwal Shakhsiyyah, Chapter 1, pp 543–544

Sunan Abu Daud, (chapter al-Talaq), Chapter 2, p 490

Legislation referred to

Islamic Family Law Ordinance Sarawak 1991, [No 5/1991], section 9(1)(2), 44, 84, 86, 87, 89(2), 136

Shariah Civil Procedure Ordinance Sarawak 1991, [No 7/1991], section 8, 107

Shariah Evidence Ordinance Sarawak 1991, [No 9/1991], section 85(4)

Cases referred to

K v S (1990) 6 JH (II), p 166 (refd)

Kamadarin v Rosnah 6 JH (II) P 258 (refd)

Majlis Agama Islam, Negeri Semebilan v Hun Mun Meng (1992) 2 MLJ 676 (refd)

Mohammed Habibillah v Faridah Dato' Talib (1992) 2 MLJ 793 (refd)

Mohd Hakim Lee v Majlis Agama Islam Wilayah Persekutuan (1998)1 MLJ 681 (refd)

Nooranita bt Kamarudin v faeiz bin Yeop Ahmad (1990) 7 JH (1), pp 52; 61 (refd)

Rusnani bt Mat Isa v Haji Marzuki b Haji Jaafar (1990) 7 JH (1) page 98

Soon Sing v Perkim Kedah [1994] 1 MLJ 690 (refd)

Wan Abdul Aziz v Siti Aishah (1997) 1 JH 50 (refd)

Shariah Lawyers

Nasir bin Abdul Aziz and Mohd Khalid bin Saie from Legal Aid Bureau representing the Plaintiff
Norhaza Ahmad Redzuan from Messrs Ahmad Shazali, Redzuan & Company Advocates representing
the DefendantMeaning of Words & Phrases

Aqidah – creed

Fardu ain – personal obligations

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Fitrah – nature

Hadhanah – custody

Hadhinah – custodian

Hukum syarak – Islamic rule

Mumayyiz – age of discernment

Murtad – apostasy/renouncement of faith

Muzni – adulterer

Qisas– retaliation

Zina – adultery

Grounds of the Judgment- Awang Suhaili J

[1]In this case, with regards to the Plaintiff's request to include Mordiah binti Ali as a second plaintiff,
was approved by the Court where the Court [*158]
made reference to section 8 of the Shariah Civil Procedure Ordinance Sarawak 1991 that provides:-

"The Court may, on its own motion or on the application of any parties at any stage of the proceedings, strike out, substitute or add any
party in such manner and upon such terms as may be just and proper:

Provided no person shall be made plaintiff without his consent or, if under disability, the consent of his representative…….. ".

[2]Section 107 of the Shariah Civil Procedure Ordinance provides:

"The Court may, in its discretion, accept an affidavit notwithstanding any irregularity in the form thereof provided that the person
making the affidavit understood its contents and effect".

[3]The Courts also referred to section 84, 85, 86 and 136 of the Islamic Family Law Ordinance Sarawak
1991, which deals with the person who has the right to custody of child, qualifications necessary for
custody, how the right of custody is lost, and Hukum Syarak become applicable when there is no
provision in law.

[4]The main issue needing careful consideration and fair decision by the court is the issue of which party
qualifies for custody rights according to Hukum Syarak and the Islamic Family Law Ordinance, Sarawak
1991. The second issue is the child's maintenance rate. The Court made reference to Shariah Court
Ordinance Sarawak 1991, Shariah Evidence Ordinance Sarawak 1991, Shariah Civil Procedure
Ordinance, Islamic Family Law Ordinance, Hukum Syarak which is the al-Quran, al-Sunnah and opinions
of the jurists, and judicial precedent of the previous cases including the civil High Court, Shariah
Subordinate, High and Appeal Court of the states.

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[5]It must be noted that a trial Court is not bound by the decisions made by a previous Court, however
making reference to previous cases is imperative and an important procedure as these cases act as both a
reference point and guideline in making a decision and a reference point in matters pertaining to the law
and the claim being filed. Using precedent as reference points ensures that the decision is not made just in
the interest of justice and fairness but appears on the onset as congruent to previous decisions and hence
fair.

[6]The important issues raised by both parties in this case that requires an answer from the Court is:-

(1) 'Statutory Declaration' filed by the Defendant on 5 April 1995 in Limbang and handed over to the Court by the Defendant
on 20 December 1996, being made as an Exhibit SD on 4 August by the Plaintiff.
(2) The first plaintiff had remarried.

(3) Qualifications for custody (Hadhinah).

(4) The priority of custody.

(5) The children have reached the age of discernment (mumayyiz).

[*159]

[7]With reference to the Statutory Declaration made by the Defendant on 5 April 1995 in paragraph 5,
which states:

"On July 1994, I decided to renounce my Muslim faith on my free will. I signed a Statutory Declaration on the 16th July 1994 indicating
my intention for renounce my Muslim faith".

In paragraph 7, the Defendant states "I am now a practicing Christian and now also called by the Christian
name of Jettle Francis".

[8]The Plaintiff in their submission, stated that based on the Statutory Declaration and statement made by
the Defendant that he had renounced the Muslim faith during the trial on 20th December 1996, the
Plaintiff made a request order for custodial rights 'ex-parte' to the Shariah High Court on 26th December
1996. This request was made in the interest of safe guarding the faith of Filza who was under the care of
the Defendant at that time.

[9]In addition, the Defendant at that time had remarried a Philippino Christian, Pinky Reyes, in Manila on
3 January 1995 and together they have a child of 2 years named Kaifu Princess. Filza was being taken
care of by the Defendant's mother and his Christian wife, during the times when the Defendant was in
Brunei for work.

[10]The Shariah High Court, Sarawak approved the 'ex-parte' request by the Plaintiff, but sadly the order
was not carried out as reported in the bailiff's report in Limbang dated 10 January 1997.

[11]In the next main inquisition, after being afforded a second chance by the Court on 16th March 1998,
the Defendant stated that it was not his true intention to renounce the Islamic faith. The Defendant made
the misguided decision based on advice he received from his friends Egi Bangan de Nelso Ruki, who
advised the Defendant to renounce the Islamic faith to avoid any legal action being taken against him by
the Islamic Religious Council or Syariah Court.

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[12]Besides that, the Defendant had never requested for a renouncement of faith in either a Civil Court or
Syariah Court and neither did he hold any certificate or court order, testifying to this renouncement. The
Defendant also claimed that he was still a Muslim.

[13]The Defendant testified that he married his Christian wife, Pinky Reyes in accordance with civil rights
in the Mayor's Department in Manila. The Defendant had planned for his wife to later convert to Islam
and register under the Syariah Court.

[14]The Plaintiff in their argument raised the issue of validity of the Defendant's marriage to a woman
who is not Muslim based on section 9(1) Islamic Family law Ordinance Sarawak which provides "no
person shall marry a non-Muslim" and section 9(2) "a marriage shall be void unless all conditions
necessary, according to Hukum Syara, for the validity thereof are satisfied".

[15]Referring to the above matter, the Court clearly explains that if requested by either party, it will hear,
try in court and pass judgment on the [*160]
validity of the marriage based on Islamic Family Law Ordinance or guilty charge under Shariah Criminal
Offences Ordinance. In the book Muaiyyin al-Hukkam, page 12, states the following, which means:

"The judge must decide on what was alleged to him".

[16]Touching on freedom of religion, it is stated in surah al-Baqarah, ayah 256 which means:

"Let there be no compulsion in religion, Truth stands out clear from error, whoever rejects evil and believes in Allah hath grasped the
most trustworthy handhold, that never breaks. And Allah heareth and knoweth all things".

[17]In surah al-Baqarah, verse 217 which means :-

"And if any of you turn back from their faith and die in unbelief, their works will bear no fruit in this life and in the Hereafter; they will
be companions of the fire and will abide therein (forever)".

[18]In hadith Bukhari it states;

From Ikrimah narrated that Ali (r.a.) did bring some people who renounced the faith, and all were burned. And when the message came
to Ibn Abbas he said "if I do not burn them, Rasulullah (s.a.w.) did prohibit namely, stated "you should not oppress a person as Allah
oppresses. But I will kill him because Rasulullah (saw) did say whoever change faith then kill him".

[19]According to Abdullah bin Mas'ud, Rasulullah (s.a.w) stated which means;

"Not lawful blood of a Muslim worth being worshiped except Allah and I am Messenger except in three things: in Qisas to kill a person,
a Muzni who committed Zina and a person who renounced from Islam and excluded himself from the crowed".

[20]In the case of Mohammed Habibullah v Faridah Dato' Talib (1992) 2 MLJ 793, Justice Tan Sri Harun
Hashim stated:

"Parliament's intention is clear in the enactment of Article 121(1A) which is to take away the jurisdiction of the Civil High Courts
pertaining to any matter that falls under the jurisdiction of the Shariah Court."

[21]In the same case, Justice Tan Sri Gunn Chit Tuan said:

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"in deciding the question of whether a Muslim has renounced his faith or not, this question can only be answered by the Syariah Courts
which is the proper forum".

[22]The same opinion was held by Justice Tan Sri Mohamed Azmi, in the same case.

[23]In the case of Majlis Agama Islam Negeri Sembilan v Hum Mun Meng [1992] 2 MLJ 676, the
Seremban High Court held that Nurul Ain was still Muslim. Her decision to renounce the faith as
documented in her affidavit, cannot be considered a final decision or declaration, until she herself
expresses her wishes to the Majlis Agama and the decision is hence registered.

[24]In the case of Soon Sing v Perkim Kedah [1994] 1 MLJ 690, Justice Wan Adnan held, that a Muslim
who renounces his faith through a deed poll or by undergoing a baptism to re-embrace his Sikh religion,
still remains [*161]
a Muslim in the eyes of the law, until such a time that he makes a declaration to renounce the Muslim
faith himself at the Syariah Court.

[25]In the case of Mohd Hakim Lee v Majlis Agama Islam Wilayah Persekutuan [1998] 1 MLJ 681,
Justice Abdul Kadir Suleiman states in Schedule No 9, paragraph 1, list 11, Article 74 of the Constitution,
that the jurisdiction of the Syariah Courts cover a much wider scope compared to what is actually afforded
to the courts by the laws of the state. The jurisdiction of the Syariah Courts is not limited to the subject
areas as stated in the state's Enactment only.

[26]In summary, it is clearly proven that although the Syariah Court has not been awarded clear
jurisdiction by the state laws to hear and make decisions on the issues raised in this case, it does not mean
that the issues raised are limited or fall exclusively under the jurisdiction of the Civil Courts.

[27]Aside from that, Honourable Judge states that only the Shariah Court can make a valid decision of
whether a declaration to renounce the Islamic faith through a deed poll dated 12th October 1995 is legal.
In addition, only the Shariah Court can decide whether Lee needs to acquire the permission of the Islamic
Religious Council to renounce his faith.

[28]In Melaka, a provision is made with regards to an attempt to renouncement of faith under section 66
Shariah Criminal Offences Enactment as follows:-

Where any person professing the religion of Islam, intentionally either by action, or words or in any other form, intended to renouncing
the religion of Islam or claim that he is not professing Islam, the Court shall when satisfied that the person chaged the faith whether by
admission or his action, order that the person be arrested at the Islamic Councelling Unit for a period not exceeding six months for
purposes of councelling and the person will be made to seek forgiveness based on Hukum Syarak".

[29]Section 90A(1) Administration of Islamic Law (Amendment) 1995 provides:-

Any person professing the religion of Islam cannot renounce the religion or deemed to have renounce the religion except that he has
been granted a declaration for that purpose by the Shariah High Court".

[30]In Sarawak, there are no provisions made pertaining to renouncement of faith (murtad), the only
provision available is pertains to the dissolution of marriage due to converting of religion under section
44 of the Islamic Family Law Ordinance, which refers to parties from a non-Islamic marriage embracing
Islam or from an Islamic marriage, renouncing their faith.

[31]However, the decision is dependent on the statement or verification by the Court. If the Court
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accepted a wider scope of interpretation in schedule No 9 paragraph 1, list 11 (state list) and Article 74 of
the Federal Constitution, in the case of Mohd Hakim Lee v Majlis Agama Islam Wilayah Persekutuan,
which means that just because specific provisions have not been made by the state laws, does not mean
that the Shariah Court does not have jurisdiction [*162]
pertaining those matters specific to the Muslim community. Therefore, the validity of a person's
renouncement of faith is dependent on his request and declaration made in the Syariah Court.

[32]In this case, the Statutory Declaration made by the defendant does not bear proof that the Defendant
renounced the Islamic faith, as he neither made a request to the Syariah Court or the Islamic Religious
Council to renounce his faith, and neither was any legal order nor approval of request granted by either
one of these bodies.

[33]The first Plaintiff remarried.

Section 84 (1) provides;

(1) Subject to section 82, the mother shall be of all persons the best entitled to the custody of her
infact 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 Syarak' from
having the right to hadanah 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; the father;
(b) the paternal grandmother, how-high-soever and so on.

Section 86 (a) provides:

The right of hadanah of a woman is lost –

(a) by her marriage with a person not related to the child within the prohibited degrees if her custody
in such case will affect the welfare of the child but her right to custody will revert if the marriage
is dissolved.

Section 87 Islamic Family Law Ordinance provides;

(1) The right of the hadinah to the custody of a child terminates upon the child attaining the age of
seven years, in the case of a male, and the age of nine years, in the case of a female, but the Court
may, upon application of the hadinah, allow her to retain the custody of the child until the
attainment of the age of nine years, in the case of a male, and the age of eleven years, in the case
of a female.
(2) After termination of the right of the hadinah, the custody devolves upon the father, and if the child
has reached the age of discernment (mumaiyiz), he or she shall have the choice of living with
either of the parents, unless the Court otherwise orders.

[34]It is to be noted that no court order has been issued with regards to the custody of both children, with
exception of the temporary court order by [*163]
the High Court, where custody was awarded to the Plaintiff, although this order was failed to be carried
out.

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[35]In the book, al-Mufassal Fi Ahkam al-Mar'ah wa al-Baiti al-Muslim, p 16, the following is stated
which means:

"The person who has the right to custody is the mother of the child."

[36]In a hadith by Ahmad and Abu Daud, Rasullulah (s.a.w) stated which means, "You are more entitled
to raise your child as long as you have not remarried another person".

[37]In another hadith which means :

"Amr bin Shuaib from his father that Abdullah Amr said that a woman complained to the Prophet (s.a.w): "O Messenger of Allah! my
womb was a resting place for this son of mine, my breast a drinking place for him and my lap a soothing place for him, but his father
divorced me and wishes to snatch him away from me" The Messenger of Allah s.a.w. said: 'You have got a better right to him till you
marry someone else" (Sunan Abu Daud, Kitab al-Talaq).

[38]In the case of Nooranita bt Kamarudin v Faeiz bin Yeop Ahmad, (1990) 7 JH (1) page 61, the Appeal
Committee of Selangor, strengthened the order made by Chief Kadi Selangor, which awarded child
custody rights to the father as the mother to the child had remarried a man unrelated to the child.

[39]In the case of Rusnani bt Mat Isa v Haji Marzuki b Haji Jaafar 7 JH (1) page 98, Sheikh Azmi bin
Ahmad held that as the claimant had remarried, they did not have the rights to raise the child and the
request was denied.

[40]Based on the testimony by the Plaintiff, and the arguments made by the Defendent, the Court finds
that the Plaintiff remarried an Inspector Mohd. Amra and the couple now resides in Kem Batu Kawa,
Kuching, while the Plaintiff's first daughter, Fify Farisa stays with her grandmother (the second plaintiff)
in Santubong and Filza stays with the Defendant in Limbang.

[41]Besides that the testimony of the second Plaintiff as a witness to the first Plaintiff, before the witness
was included as a second Plaintiff only to the extent of bayinnah according to section 85 (4) Shariah
Evidence Ordinance 1991. By including the witness as a second Plaintiff in the case, the first Plaintiff is
left with only one witness who is Bunsu binti Anom.

[42]Hence, in accordance with Hukum Syarak, section 86(a) Islamic Family Law Ordinance 1991,
Shariah Evidence Ordinance and decisions made in previous cases as reference points, the Court is of the
view that the first Plaintiff has lost her rights and qualifications as a custodian (hadhinah).

[43]The next issue in question is the qualifications required for the hadhinah and the conditions for
hadhinah.

[44]Section 85 Islamic Family Law Ordinance 1991 provides, "A person to whom belongs the upbringing
of a child, shall be entitled to exercise the right of hadanah if – [*164]
(a) She is a Muslim;
(b) She is of sound mind;
(c) She is of an age that qualifies her to bestow on the child the care, love, and affection that the child
may need;
(d) She is of good conduct from the standpoint of Islamic morality; and

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(e) She lives in a place where the child may not undergo any risk morally or physically.

[45]In the case of K v S 7 JH(II) page 166, Chief Kadi Sheikh Ghazali Abdul Rahman states;

"In order to determine whether the party making the claim is qualified or not to become the hadhinah, we need to make reference to the
conditions of hadhanah which include that the person is of sound mind, independent, of Islamic faith, not a fasiq, honest, residing in
the state and the mother of the child has not remarried."

[46]The Court, after deciding that the first Plaintiff does not qualify as hadhinah based on the reasons
declared in the case proceeding, has to look into the conditions of rights to custody (hadhanah) once
again and evaluate and decide on who is the more qualified party between the second Plaintiff and the
Defendant, to be awarded the rights to hadhinah. The second Plaintiff, who is the grandmother to the
children also has a right to custody based on section 84(2) Islamic Family Law Ordinance 1991.

[47]During the examination in chief by the Plaintiff's attorney, the second Plaintiff in her testimony, was
able to prove that she is a Muslim, of sound mind, without any incapacitating illness, and residing
permanently in Santubong, Kuching. The testimony made by the second Plaintiff was not challenged by
the Defendant in their cross-examination in which the Defendant stated that they have no further
questions.

[48]Hence, the Court is of the view that the Defendant had no wish to dispute the second Plaintiff's
qualifications as a hadhinah. If the Defendant had so wished to dispute the qualifications of the second
Plaintiff, they would have surely made a rebuttal. However, in the closing statements, the Defendant
argued whether the second Plaintiff was really qualified by questioning the familiarity and affection
shared between the second Plaintiff and her grandchildren, the age of the second Plaintiff and the fact that
Filza was well adjusted in her current environment.

[49]The ability of the second Plaintiff in raising children is not disputed and is clearly proven before the
eyes of the Court, as she successfully raised Fify Farisa from infanthood to her now 13 years of age,
schooling in Form One in SMK Matang Kuching. During the questioning of the children conducted by the
judge himself in his chambers, Fify Farisa clearly explained the ability of the second Plaintiff in raising,
teaching and taking care of children. During the questioning Fify stated that she had completed the
reading of the al-Quran (khatam) and she was able to read al-Fatihah before the judge. The first Plaintiff
and the Defendant in their testimony, attested that Fify Farisa was raised by the second Plaintiff from
infanthood to the present day.
[*165]

[50]With regards to the qualification of the Defendant as hadhinah, the Defendant as explained by the
court previously is indeed a Muslim, of sound mind that he is able to work as a Supervisor at LNG Filling,
Brunei, of good character as this was not proven otherwise by the Plaintiff.

[51]Touching on section 85(e) Islamic Family Law Ordinance Sarawak 1991 which provides "she lives in
a place where the child may not undergo any risk morally or physically". The Defendant in his statement
of defence in paragraph 3, 4, and 5 and testimony by witnesses of the Defendant including bayinnah
declared by the third witness of the Defendant, stated that the first Plaintiff is not a responsible character
and had an affair with a man which led to the divorce. The reply to the Defendant's complain from Bukit
Aman was declared by the Defendant as Exhibit D3.

[52]However, the Plaintiff's attorney in their argument, stated that this matter has no relevance to the

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claim of custody rights and if it was to be raised, should have been done in the divorce proceeding. On
this matter the Court has already held that the first Plaintiff does not qualify as hadhinah.

[53]The first Plaintiff in her Statement of Claim in paragraph 8, stated that Filza who stayed with the
Defendant's parents who were not Muslim, was not allowed to participate in the Fardhu Ain lessons in her
school.

[54]The Defendant was not in agreement with the statement made in paragraph 8 and in his Statement of
Defence, the Defendant states that Filza traveled with him to Brunei during his work there. However, this
statement was contradictory to the statement made by the Defendant in Court during the examination in
chief in which he stated that Filza was taken care of by his Christian wife Pinky Reyes and his Christian
mother Sipi Sore in Limbang, whilst he was at work in Brunei.

[55]This validity of the latter statement was further clarified and strengthened by Filza herself when she
was examined by the judge in his chambers, where she states that she stays with her mother Pinky Reyes,
grandmother Sipi Sore and other family members, of whom all are of the Christian faith.

[56]And it was sad to learn that Filza herself was not certain or clear about her own Islamic faith, and in
fact claimed that she was not Muslim and followed the lessons of Moral education in school.

[57]Hence, Filza who was claimed to be raised by the Defendant, was in fact raised by the Defendant's
wife Pinky Reyes and the Defendant's mother Sipi Sore, of whom both are not Muslim. The Defendant's
work in Brunei did not permit him to bring along a child to Brunei, hence Filza was left in Limbang to be
raised by these two non-Muslim women. This is in violation of section 85(e) Islamic Family Law
Ordinance Sarawak 1991.

[58]Hence, the child was being raised by the Defendent's wife, Filza's step mother and her grandmother
and this did not guarantee the Defendant's complete watch as he was in Brunei.

[59]In Kitab al-Fiqh al-Islami wa Adillatuhu by Wahbah al-Suhaili, volume 5 page 727, it is stated, which
means: [*166]

"Non-Muslims have no custodial rights over a Muslim, and has no power over the Muslim, as this is a defamation against the religion."

[60]Plaintiff during the cross examination by the Defendant, did state that the Defendant has thrown out
the al-Quran and in the examination in chief and cross, the Plaintiff states that the Defendant did forced
the family to attend church. However this statement was being disputed by the Defendant at the end of
their submission.

[61]Besides that in the Defendant's testimony during the main examination, the Defendent had never
performed obligatory prayers as he was never thought to do by his wife. Although the Defendant had
attempted fasting, he never competed the duration for fast during Ramadhan. The Defendant than
professed very seriously that although he never took it upon his initiative to learn further in depth about
Islam, he did feel a sense of peace and happiness following his embrace of Islam.

[62]The next issue is on the order of preference of hadhanah.

Section 89(2) of the Islamic Family Law Ordinance provides:

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"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.

[63]In Kamadurin v Rosnah 6 JH(II) page 258 Chief Kadi Sheikh Ghazali Abdul Rahman stated that "The
purpose of maintenance is to provide the necessary materialistic necessities for the importance of the
children. The meaning of maintenance is to take care and provide for children from young to adulthood,
and until they are eloquent enough to speak for themselves and answer for themselves the questions of
others".

[64]In Kitab al-Fiqh Muqaranah Li al-Ahwal Syakhsiyyah, by Bedran Abu Ainain, Chapter 1 pp 543–544,
which states, and means:

"The purpose of hadhanah is to safeguard the welfare of the children. The welfare of the children is definitely more important and
should be prioritized before the welfare of its parents so as to enable that the child is afforded the best possible solution."

[65]In the case of Noorania bt Kamarudin v Faeiz Yeop Ahmad, 7 JH(1) page 3 Selangor Appeal
Committee chaired by Tan Sri Dato' Haji Mohd. Azmi bin Dato' Haji Kamarudin held the main and most
important fact in all custody claim cases, according to Hukum Syarak is that the rights of the child must be
prioritized and taken care of over the rights of the custodian, as the core and main purpose of a custody
claim is to look into the welfare of the child at stake and not how the claim may benefit the custodian.

[66]Having said that, the main and most important responsibility of parents toward their children is to
educate them into becoming well-adjusted individuals, with high moral standards, who are obedient
servant's of Allah (s.w.t).
[*167]

[67]Allah ( s.w.t.) says in surah al-Tahrim, verse 6, which means;

"O ye who believe! Save yourselves and your families from a fire whose fule is men and stones, over which are (appointed) angels stern
(and) severe, who flinch not (from execution) the commands they receive from Allah, but do (precisely) what they are commanded".

[68]Abu Hurairah r.a. narrated that Rasululah (s.a.w.) stated which means:

"Every child is born in Fitrah. It is the parents that make the children Yahudi(Jew), Nasrani(Christian) or Majusi(Judaism)."

[69]A child's education begins from the home, right from infanthood, where the child must be nurtured
and thought the most basic of knowledge that has to be with Islamic faith and Aqidah. As the child
matures he is thought to practice the rituals of the Fardhu Ain and to adhere to Allah's commandments. It
must be noted that if parents neglect to instill the very basics of Islam during this impressionable age of
childhood, the child may grow up estranged to Islam and choose to live a life that is completely defiant to
Islamic practice. This bears a consequence for the child who later becomes an adult, not just in the world
but also in the hereafter.
The next issue : the children have reached the stage of discernment (mumayyiz)

[70]Section 87(1) Islamic Family Law Orndinance 1991, provides;

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(1)"The right of the hadinah to the custody of a child terminates upon the child attaining the age of seven years, in the case of a male,
and the age of nine years, in the case of a female, but the Court may, upon application of the hadinah, allow her to retain the custody of
the child until the attainment of the age of nine years, in the case of a male, and the age of eleven year, in the case of a female";

(2)After termination of the right of the hadinah, the custody devolves upon the father, and if the child has reached the age of
discernment (mumaiyiz), he or she shall have the choice of living with either of the parents, unless the Court otherwise orders".

[71]In a hadith, Rasulullah ( s.a.w.) stated, which means :

"Rasulullah (s.a.w.) grants permission to the child who has attained the level of puberty to make an informed choice of whether to stay
with his father or mother".

[72]In another hadith which means:

Abi Maimun states that Abu Hurairah narrated which means; a woman came to the Messenger (s.a.w.) and said: 'O Messenger of Allah
my husband wishes to go away with my son while he is doing me some service'. Then the Prophet s.a.w. said to the boy: 'This is your
father and this your mother. Take the hand of either of them whom you like'. The boy caught the hand of the mother and she took him
away with her" (Sunan Abu Daud, Kitab al-Talaq).

[73]In the case of Wan Abdul Aziz v Siti Aishah (1977) 1 JH page 50, the Judicial Committee further
enforced the decision made by the Kadi, namely, the boy being claimed who is 9 years of age, has a right
to choose to stay with his mother.
[*168]

[74]On 12th October 1998, the Court, in the chamber before the Assistant Registrar, examined the
children, Fify Fariza 13 years and Filza 10 years. On 13th October 1998, both the parties, the Defendant
and Plaintiff, when questioned by the Court, had no dispute over this matter.

[75]The Court in its examination found that Fify Farisa was able to answer the questions posed to her
well, and she stated her standard level in SRK Santubong and SMKA Matang. Besides that she has
completed her Al-Quran and can recite the surah al-Fatihah.

[76]When explained about her right to choose her custodian, Fify Farisa choose to stay with her
grandmother, with the reason that she had been raised by the grandmother since young. Filza, aged 10,
in the examination by the Court testified that she had never learnt to recite the al-Quran and her education
in SRK St Edmund involved all other subjects including Moral Studies.

[77]Filza also explained that she was taken care of by Pinky Reyes, her 'mother' and her grandmother
Sipi Sore, both Christians. When asked of her religion, Filza was hesitant and unsure of herself and after
long deliberation stated that she was not a Muslim and was of the similar faith/religion of her father, the
Defendant. In conclusion, Filza choose to stay with the Defendant, stating the reason that he was a good
man.
The Courts View

[78]The Courts after explaining the important issues of the case, finds that deliberation is in order in
considering the importance of child custody rights, the conditions for the custodian (hadhinah) and the
individual choices made by the children themselves.

[79]Before that, it is for the Court to explain about the child custody rights, in that there is no absolute or
exclusive right given to either party in any custody case, because although one party may be awarded

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custody rights by the court, the other party will still be allowed visitation rights and the right to ask after
the welfare of the child.

[80]In the book al-Fiqh al-Islami wa Adillatuhu, Volume 5, page 727, it is stated, which means:

"The right to see and visit the child is given to either the father or the mother who is not the custodian by syarak, as agreed upon by
fuqaha, in order to foster good familial ties."

[81]Touching on the importance of child custody, it has been explained that in determining the rights to
custody, the child's welfare is of prime importance and the rights of the child is of paramount, as
compared to the rights of the Plaintiff toward the child or the Defendant's rights toward the child. Besides
that, the choices made by the children who have reached a discerning level of intelligence must be taken
into consideration by the Court, in addition to the wishes of the Plaintiff and Defendant.
[*169]

[82]The question here is, does the Court make a decision based solely on the children's choice, or does the
Court consider the other factors such as where the child's welfare will be best served and the conditions to
be fulfilled by a custodian and if indeed they are fulfilled by both the second Plaintiff and the Defendant
in this case.

[83]The Court can in the case of Filza, award custody rights to the Defendant with conditions, however, at
the same time, the Court, based on the testimony by the Defendant, the Plaintiff and Filza herself in the
trial and the examination made in the judges chambers, found that Filza was in actual fact being raised by
the Defendant's wife and mother who are not Muslim. This most certainly raises the issue of an Islamic
upbringing of the child and puts in doubt the question of Filza'a Islamic faith and her future.

[84]Therefore, the Court is of the view that although Filza has chosen her custodian, the Court must
intervene and reconsider Filza'a choice and whether it best serves her welfare. Considering Filza's welfare
is of far grater importance than simply approving the child's self-made choice, the Court is given the
authority under section 89(2) to consider this matter by prioritizing Filza's welfare, as has been the
interest of the Court all along.

[85]Upon arriving at the decision that the most important issue in the case is the child's welfare as
compared to the rights of the mother, grandmother or father of the children, thence arises the question of
who should be awarded custody rights, between the Defendant and second Plaintiff, the maternal
grandmother of the children. The Court summarized the qualification and conditions for the custodian
with reference to both the Defendant and the second Plaintiff, including all other matters pertaining to the
issue.

[86]Therefore, in can be summarized based on the naration and view of the Court before this:-

(a) Statutory Declaration dated July 1994 and the Defendant's testimony in Court during the examination in chief, without
attorney being present, does not jeopardized the Islamicity of the Defendant. As no official request was made to the Syariah
Court to renounce his faith and with no legal and binding decision held or documented by the Court with regards to
renouncement of faith by the Defendant, the fact that the Defendant is Muslim is not disputed;
(b) The first Plaintiff, Faridah binti Daud, in her act of remarrying a man who is not mahram to her children, caused her the loss
of her custody rights;
(c) Filza who was supposed to be under the care of the Defendant was actually being taken care of and raised by the Defendant's
wife Pinky Reyes and his mother Sipi Sore, whom neither are Muslims;

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(d) The working arrangements of the Defendant that require his presence in Brunei, does not able him to take complete care of
Filza;
(e) The second Plaintiff was never disputed by the Defendant in the cross examination as the Defendant had no questions during
the re-examination. It was however argued by the Defendant only during [*170]
the closing statement that the second Plaintiff, due to her age may not be able to fulfill her role as custodian, that Filza was not
affectionately acquainted with her grandmother and that Filza was comfortable and well settled in her current environment;
(f) The second Plaintiff's ability as custodian was clearly proven by the fact that she had raised Fify Farisa from childhood to the
present day, where Fify schools at SMK Matang;
(g) The importance in a custody claim is the welfare of the child as compared to the rights of the mother and the father towards
the child;
(h) Fify Farisa, aged 13 and Filza aged 10, have the right to choose whom they wish to live with according to section 87 Islamic
Family Law Ordinance 1991;
(i) What is prioritized in a custody claim is the welfare of the child and the basis of who is awarded custody rights is determined
by the rights of custody and the qualifications of a custodian, not merely on the choice made by the children.

Court's Decision

1 I hereby order that custody rights of Fify Farisa be awarded to the second Plaintiff, Mordiah binti
Ali;
2 I hereby order custody rights of Filza to be awarded to Mordiah binti Ali, as well;
3 I hereby order, visitation rights awarded to the Defendant at any appropriate time that does not
interfere with the children's schedule;
4 I hereby order the Defendant to pay child maintenance of Fify Farisa at RM100 per month and
Filza RM100 per month; payment made via the Plaintiff's attorney;
5 Proceeding costs to be borne by both parties individually; and
6 All orders take effect immediately.

[Editor's Note: This case has been reported in Jurnal Hukum, JLD XV BHG in p 25 to 46 (1June 2002).
All reference to "Syariah" in the text should read as "Shariah"].
Reported by Ashgar Ali Ali MohamedReported by Shanaz Hussain

End of Document

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