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Chapter One Introduction 1.1 Background

Family is one of the most important things in ones life. One may do anything for the sake of his/her beloved family. Everybody always wish and plan for their happy ending life on their family story. However, no doubt, human may only create and plan the story, but in the end of the day, it is all by Gods permission upon the ending. Then, the human must well-prepared for the test that may determine whether there is still a chance for a happy ending or its all may over just like that.

Undoubtedly, the most precious property in a marriage is the child. One may give anything in the settlement of a divorce to get his/her child. Undeniably, a party may be greedy on the property, but usually, a mother may do anything to get the child that she had sacrificed to bring for 9 months and 10 days before giving birth the child with her full-power.

This fact brings to the custody dispute. Where upon the dissolution of marriage, parents, father and mother, will struggle with each other to get the rights of custody of the child.

The legal system in Malaysia is a dual system, based on both English common law and Islamic law. Civil courts have jurisdiction over the majority of laws, including contracts, torts, property, crime, and constitutional and administrative matters. The Syariah courts, which are established and regulated by the states, have jurisdiction over

Islamic family law matters. It was listed under Article 121(1A) of the Constitution 1, introduced in 1988 by constitutional amendment, which states that the civil courts have no jurisdiction in matters that fall within the Syariah court jurisdiction.

Islamic law applies only to Muslim citizens and includes only matters specified in the State List of the Federal Constitution such as matrimonial law, charitable endowments, bequests, inheritance, and offences that are not governed by federal law (matrimonial offences, khalwat (close proximity), and offences against the precepts of Islam). The power to legislate these matters lies with each state legislature and Sultan of the state, with the Federal Parliament only legislating such matters for the Federal Territories of Kuala Lumpur, Labuan and Putrajaya. Because there are 13 states and one federal jurisdiction, there are 14 different sets of Islamic laws in Malaysia.

Article 121(1A). Federal Constitution of Malaysia. 1957.

1.2

Objectives Of The Study

The essential objective of this research is to analyse the law, under Syariah law, on the matter of the rights of custody which the parents need to claim upon the dissolution of marriage. The various legal views and practices that affecting this right will also be taken into account. It will provide contextual analysis to identify the available remedies under the Syariah law as practices in Malaysia in determining where this right will takes side.

Further, the research will analyse the guideline or precedence of the court upon this issue. In fact, the Syariah Court may have their own way of practices to settle down the disputes that arise before them. This research will focus on the various opinions by Islamic scholar on childs custody matter as applied in Syariah Court, and then will discuss further on the Islamic Family Law Act and other enactments that adopted by different states in Malaysia..

Furthermore, the research will provide the qualifications, circumstances where the right may be lost, and also the durations of ones right of childs custody.

1.3

Statements Of Problem

Nowadays, time to time, the statistic of the custody disputes cases increase rapidly due to the increasing of the divorce cases. Most of the parties involved in this matter did not realize what they should have prepared in gaining their right of childs custody. Those people who claim for this right think that the mother will always be prevailing than the fathers without knowing that there are many other things that should be taken into account to gain this honourable right. Besides, most of the people believe that the money is everything. Who got less money than the other, he or she will lose their right.

By the way, there is not much books to be referred upon this matter that will explain, determine, exposed, and giving normal people that does have any background of Syariah education, or law.

Therefore, we can conclude that, most of the people do not well-equipped with the information and knowledge pertaining the divorce or dissolution of marriage from theoretical of conditions and also qualifications in fighting for their right for childs custody matter.

1.4

Significance Of The Study

Generally, this research will open the minds of the public with a description of the rules, the law, the rights of the child into custody, and thus what they need to do to get this right. They will also be exposed to the law that adopted by some states that may differ in terms of the rules, judicial and others. Furthermore, this research may change the peoples mind-set who think only money is ascertaining their right. This kind of thought is quite dangerous, where it will push the party who has less money or property to do something that may be out of their mind, to sacrifice for love.

This research also will guide the people to be prepared in confirming their right, or to get high opportunity in gaining their right for childs custody. The preparation should be on the representative, the budget, and other thing that may attract the court or judge to give them the best solution for the right of the childs custody.

1.5

Literature Review

There are several literatures written on the rights of the custody upon the children on the dissolution of marriage. Basically, the literatures will take note the childs basic needed, procedure, the responsibility of the parents, etc. one of them is the book, namely Family Law In Malaysia, Third Edition, by Tan Sri Datuk Professor Ahmad Ibrahim,1997. This book can be admitted as the best book to refer on the custody and other family dispute or matters. The writer of this book critically analyse the procedure, the rights, and the law that governs the issues that arose. Relating to the topic of this research, custody, the writer of this book perfectly listed down the things relating to the parenthood, childhood (basic needs, nurtured to adulthood, making decision), guardianship and custody, and also many cases that related.

The other book is an Arabic Book, Ahkam al-Usrah: al-Hadhanah bi al-Ziwaj wa al-Furqah wa Hukuk al-Aulad, by Dr. Ramdan Ali al-Sayyid al-Syaranbasi and

Dr. Jabir Abdul Hadi Salim al-Syafie, 2008. This book describes the meaning of custody, conditions and terms upon the custody, times, and also listed down the persons that may have rights upon the guardianship of the child on the dissolution of marriage. It is based on the Islamic law, which mostly based on Holy al-Quran and Hadith, besides Ijma and Qiyas.

The other similar Islamic book, which is also in Arabic words, is al-Ghuraru al-Bahiyyah, by al-Sheikh Abdul Rahman al-Syarbainy, and two others, 1997. The writers of this book defined the meaning of custody, who will be granted upon this right, etc. However, the extra points that can be found in this book is the conditions, or

situations that may quashed away the right from the guardian, such as unsound mind, apostasy, so on and so forth.

Next, the Child Custody Assessments: A Resource Guide for Legal and Mental Health Professionals, by Rachel Birnbaum, Barbara Jo Fidler, and Katherine Kavassalis, 2007. This book is not a good book to refer for the right of custody, but it is best for the history of English Custody Law. This book mostly focuses on the psychology, access assessments in the context of the empirical and social science literature and collective practice experience. They opined that most mental health professionals do not have access to legal databases or journals, and the writers also believe that it is very important to understand what the courts are saying about different parenting time and decision-making arrangements.

There is a book that focussing on the procedures and litigations of the custody matters that before, in, and after brings to the court. It is the book of Family Evaluation in Custody Litigation: Reducing Risks of Ethical Infractions and Malpractice, by G. Andrew H. Benjamin, and Jackie K. Gollan, 2002. The writers of this book beautifully arrange or divide its contents into three parts; i) describes the preparatory wotk that should be accomplished before conducting evaluations; ii) focuses on the assessment procedures in conducting court-appointed or stipulated evaluations; iii) discuss the methods of data integration, report writing, and court presentation. However, it may be differs to certain rules under Syariah Court.

1.6

RESEARCH METHODOLOGY

This research is a kind of doctrinal legal research and is largely library-based. It will be a mixture of desktop study and field works. The desktop study will involve literature review from the following sources:1- Statutory Provisions 2- Case Law 3- Library Research (textbook and online database) 4- Published Journals

1.7

Structure Of The Thesis

CHAPTER 1 Research Proposal 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 Background Objectives of the Research Statements of Problem Significance of the Research Literature Review Research Methodology Structure of the Thesis Conclusion

CHAPTER 2 Custody Under Islamic Perspectives 2.1 Definition of Custody and Guardian

2.2

Authorities of Islamic sources 2.2.1 Al-Quran 2.2.2 Al-Hadith

2.3 2.4

Islamic scholars review Conclusion

CHAPTER 3 Custody Under Islamic Family Law 3.1 3.2 3.3 3.4 Persons entitled to the right of custody Qualification to be Guardian Durations of the Guardianship Loss the right of custody

CHAPTER 4 The Practice In Malaysia: States Enactment 4.1 4.2 4.3 4.4 Islamic Family Law Act 1984 States Enactment on Custody Syariah Court Jurisdiction Conclusion

CHAPTER 5 Conclusion

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Chapter Two Custody Under Islamic Perspective

2.1

Definition of Custody and Guardian

Under Islamic law, custody is regarded as the right of the child and of the parents especially of the mother. The child needs someone to look after its needs, and if the child is of tender years, the mother is the best person to look after him or her.

Custody literally means the legal right or duty to take care of or keep 2, or upbringing. In legal terminology, hadhanah means the upbringing of a minor child by the mother or by someone legally entitled to it. 3 Under Syariah, custody or hadhanah refers to caring for the infant during the period when it cannot do without the women in a prohibited degree who have the lawful right to bring it up where it is one of form guardianship of the child.4

Hadhanah is derived from Arabic word, hidhan which means flank, the side of body between ribs and hips. It means the right on the childs custody 5 that is after dissolution of marriage, where there should be a reason for the right to be vanished as the discussion further in this research.

2 3

Oxford Advance Learners Dictionary, 6th Edition, p. 147 Tanzil-Ur-Rahmana. 1978. A Code of Muslim Personal Law. Pakistan: Islamic Publisher 4 Jamal J. Nasir. 1990. The Status of Women under Islamic Law and under Modern Islamic Legislation . London: Graham & Trotman Ltd. p. 121-122 5 Zaleha Kamaruddin. 2004. Islamic Family Law; New Challenges in the 21 st Century. Kuala Lumpur: International Islamic University of Malaysia. Volume 2. P. 67

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Regarding the guardianship issue, guardianship may be defined as the ability of a person to make decision concerning another person regardless of the wishes or agreement of the latter.6 It also carries a meaning of a right to control the movement and actions of a person who owing to mental defects is unable to take care of himself and to manage his own affairs.7

Muslims scholars divided guardianship into three categories: i) Guardianship of the infant (Hadhanah) during the early years of life; when the infant need women to look after it; ii) Guardianship of education (Wilayat at-Tarbiyya), believed under the Syariah to be duty of men rather than women; iii) Guardianship of property (Wilayat ala al-Maal) if the child has any property, a task again worthier of men rather than women.8

Guardianship also involves the carrying of duty through a decision affecting a third person whether the latter wishes or not. The mother is entitled only to the custody of her minor child up to a certain age according to its sex. However, the father alone is the natural guardian of his children and this status corresponds the patriarchal concept, which regards him as the head of the family.9

Mohammad Hashim Kamali. 2000. Islamic Law in Malaysia; Issues and Developments . Kuala Lumpur: Ilmiah Publisher. p. 108 7 Mohammad Zakaria Siddiqi. 2001. Islamic Law and Judiciary; Trend-Setting Judicial Pronouncements on Islamic Law since 1950. p. 149-150 8 Jamal J. Nasir. 1990. The Status of Women under Islamic Law and under Modern Islamic Legislation . p. 121-122 9 Zaleha Kamaruddin. 2004. Islamic Family Law; New Challenges in the 21 st Century. Kuala Lumpur: International Islamic University of Malaysia. Volume 2. P.106

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The relationship between hadhanah and guardianship can be seen as a complex structure of rights and duties distributed among the entitled persons. The main distinction between guardianship and hadhanah is more on the emotional and personal care of the infant, whereas a guardianship is more concerned with decisions that affecting the childs present and future welfare.

2.2

Authorities of Islamic Sources Basically, Islamic law derived from or based on two main sources which are Al-

Quran and Al-Sunnah. Al-Quran is the words of Allah that delivered by Jibriel to Prophet Muhammad, while al-Sunnah is any words, acts, or behaviour, and also anything that practiced by Prophet Muhammad based on al-Quran, the God or Allahs command.

There are several verses from Holy al-Quran that explain on the custody or hadhanah.

2.2.1

Al-Quran

Your wives are a tilth for you, so Go to Your tilth (have sexual relations with Your wives In any manner as long as it is In the vagina and not In the anus), when or How You will, and send (good deeds, or ask Allh to bestow upon You pious offspring) before You for Your ownselves. and fear Allh, and know that You are to meet Him (in the Hereafter), and give good tidings to the believers (O Muhammad ).10

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Al-Quran. Al-Baqarah 2:223

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This verse brings a command from Allah to the wife who had been divorced to be responsible upon the children through giving her offspring until her children attaining two years old.11Its also describes on the fathers responsibilities upon the children and also his wife, that is to take care on the welfare of the children and the wife. And we have enjoined on man (to be dutiful and good) to his parents. His mother bore Him in weakness and hardship upon weakness and hardship, and his weaning is in two years give thanks to Me and to Your parents, unto Me is the final destination.12 This ayat is especially to the children, where it is a command on the responsibilities of the children to do good to his parents.13It is a reminder to the children to pay respect to their parents, to not forget the hardness of the parents in providing them everything until they become a perfect human.

2.2.2

Al-Hadith There are several Hadiths that narrated on the point of custody matter. In one

Hadith, the Prophet Muhammad p.b.u.h said that:

It is reported that Ali said: Zaid bin Harithah out to Mecca and brought the daughter of Hamzah with him. Then, Jaafar said: I shall take her, I have more right to her; she is my uncles daughter and her maternal aunt is my wife; the maternal aunt is
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As-Sobuni, Muhammad Ali. 2001. Rawai al Bayan Tafsir Ayat al-Ahkam mina al-Quran . Beirut: Darul Haya al-Turas al-Arabi. p. 266 12 Al-Quran. Al-Luqman 31:14 13 As-Sobuni, Muhammad Ali. 2001. Rawai al Bayan Tafsir Ayat al-Ahkam mina al-Quran. p. 412

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like a mother. Ali said: I am entitled to take her. She is my uncles daughter. The daughter of Messenger of Allah is my wife and she has more right to her. Zaid said: I have more right to her. I went out and journeyed to her and brought her with me. The Prophet p.b.u.h. came out and said: As for a girl, I decide in favour of Jaafar. She will live with her maternal aunt. The maternal aunt is like a mother.14

In another Hadith, reported from Abdullah bin Amr that a woman complained to the Prophet: Messenger of Allah, my womb was a resting place of this son of mine, my breast and 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 Massenger of Allah said: You have got more right to take him till you marry someone else.15

It is reported from Abu Hurairah that a woman came to the Prophet p.b.u.h. and said: O Messenger of Allah, my husband wishes to go away with my son while he did me some service. Then Prophet p.b.u.h said to the boy: this is your father, and this is your mother. Take the hand of either of them whom you like. Afterwards the boy caught the hand of his mother.16

It is stated by Abi Maimun that he was sitting with Abu Hurairah who said that a woman came to the Prophet and said: My husband wants to take away my son, although he (my son) gives me comfort and bring me drinking water from the well of Abu Uyanah". Thereon, her husband denied her claim over his son. The Prophet then said: O child. This is your father and here is your mother, make a choice between the
14

Abu Daud. Sunan Abi Daud. Kitab al-Talaq. Beirut: Darul Haya al-Turas al-Arabi. Translate by Ahmad Hasan. Vol 2. p. 617 15 Abu Daud. Sunan Abi Daud. Kitab al-Talaq. p. 617 16 Abu Daud. Sunan Abi Daud. Kitab al-Talaq. p. 283-284

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two whomever you want. The son caught hold of the hand of his mother and she went away with the son.17

2.3

Islamic Scholars Views

Generally, there are a few schools that views on this custody matter. Each school may have their own opinion upon this matter.

(i) Shafie School of Thought According to Shafie, the eligible custodian may be a group of men and women, solely females, or solely males. Imam Syafie referred to the Hadith to justify the rationale for giving preference the mother in custody disputes. It was said that. Thus when a child has not reached the age of discretion, the mother has a greater right to his upbringing in as much as this question of the right of the child, not the question of the degree of love, attachment and affection of the parents.18 It means that, when the children is not attaining the age of discretion, or attained of the age where he or she can define which is right and wrong, the right will go to the mother. This right cannot be challenged by the father.

(ii) Hanafi School of Thought Abu Hanifah opined that, the mothers right of custody of the child may be given to the father when the male child begins eating, drinking, wearing clothes and cleaning, bathing and washing all by himself. Indeed, the mother has the right of

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Al-Nasai. Al-Sunan, Karachi, Vol. ii, p.93. Al-Syafie. Kitab al-Umm. Egypt. 1381 (A.H). Vol viii. p. 235

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custody of the daughter till she attain the age of puberty. This is also the view of Abu Yusuf.

According to Muhammad al-Syaybani, the mother has the right of custody till the daughter shows signs of awakening of sex. This opinion was approved by the later Hanafis Jurists.19

It was decided that, if the mother is not available, the eligible goes to the following persons: (a) (b) (c) (d) (e) The maternal grandmother, how-high-so ever; The paternal grandmother, how-high-so ever; The full, uterine, consanguine (sister) in that order ; The maternal aunts, in the same order as sisters; The paternal aunts, again in the same order.20

(iii) Maliki School of Thought According to Malikis view, the childs custody firstly goes to the mother. Then, it will go to her mother how-high-so ever, then the full uterine maternal aunt, then the mothers maternal aunt, followed by her parental aunt, then the fathers mother, then his mothers mother, then his fathers mother; closer relatives excluding those more distant, and those related through the mother shall have precedence over those through the father.21 2.3
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Conclusion

Tanzil-Ur-Rahmana. 1978. A Code of Muslim Personal Law. p. 718 Jamal J. Nasir. 1990. The Status of Women under Islamic Law and under Modern Islamic Legislation . p. 122 21 Jamal J. Nasir. 1990. The Status of Women under Islamic Law and under Modern Islamic Legislation. p. 123-124

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In conclusion, it was understood that, by referring to all of the authorities given, the right of the childs custody will goes to the mother. It is priority to the mother as stated in al-Quran and al-Sunnah. However, the right of the childs custody goes to the father after specific period, where the child attained the age of discretion. There is a question on the matter of the time when the mother is not available. Who will get the right on the child?

It was then decided that there are some persons whose may gain the right upon the child. They are the maternal grandmother, how-high-so ever, then the paternal grandmother, how-high-so ever, the full, uterine, consanguine, in that order, the maternal aunts, in the same order as sisters, and also the paternal aunts, again in the same order.

Thus, the right of childs custody must be following to the decided rankings. However, there are some conditions and terms must be fulfilled in confirming the right of this childs custody. It will be discussed in the next chapter.

Chapter Three

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Custody Under Islamic Family Law

3.1

Person Entitled To the Right of Custody

In determining the person who are entitled to the custody of a child, the Islamic jurists differs their views. According to Hanafis school, based on their observation the child is transferred from the mother to the mothers mother, then to the fathers

mother, then to the full sisters, then to the uterine sisters, then to the paternal sisters, then to the full sisters daughter, and so on till it reaches the maternal and paternal aunts.22

According to Malikis schools, the right of custody is transferred from the mother to her mother, how high so ever; then to the full maternal aunt; then the uterine maternal aunt, then the mothers maternal aunt, then the mothers paternal aunt, then the fathers paternal aunt, then his (fathers) mothers mother, then his fathers mother and so on. 23

The Shafies jurist views that the person entitled to custody of a child is the mother, then the mothers mother, how high so ever, on condition that she inherits; then the father, then his mother, how high so ever, on condition that she inherits; then the nearest among the female relatives, and then the nearest among the male relatives.24

22

Al-Jaziri, Abdul Rahman. 1970. al-Fiqh Ala al-Mazahib al-Arbaah. Kaherah: Matbaah al-Tijari alKubra. Vol 4. P. 596. 23 Ibid. 24 Al-Khatib, Muhammad al-Syarbini. N.d. al-Iqna. Mesir: Darul al-Fikr. Vol 2. P. 194.

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According to the Hanbalis jurists, the mother is followed by her mother, then her mothers mother, then the father followed by his mothers, then the grandfather followed by his mothers, then the full sister; then the uterine sister; then the paternal sister; then the full maternal aunt; then the uterine maternal aunt, and so on.25

The Imamiyah observe that the mother has a right to have custody of her children, and then the father, and if the father dies or become insane after he has taken the childs custody, the right to custody will revert to the mother on her being alive, because she is better entitled than others including the paternal grandfather even if she has married a stranger.

If the parents are not there, the custody of the child will lie with the paternal grandfather, and if he is not there nor has an executor, the childs custody will lie with its relatives in order of inheritance, the nearer taking precedence over the remote. If there is more than one relative of the same class, such as the maternal and paternal grandmothers or maternal and paternal aunts, the matter will be decided by drawing lots in the event of contention and dispute. The person in whose name the lot is drawn becomes entitled to act as the custodian till his death or till he forgoes his right.26

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Al-Jaziri, Abdul Rahman. 1970. al-Fiqh Ala al-Mazahib al-Arbaah. Kaherah: Matbaah al-Tijari alKubra. Vol 4. p. 596 26 Syeikh al-Imam Ibnu Qudamah. N.d. al-Mughni, Bab al-hadhanah. Kaherah: Darul al-Harith. Vol 9. P. 491.

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3.2

Qualifications to Be Custodian

Islam has determined the qualifications and conditions to become a custodian for the children. If certain condition was not fulfilled by any of the party, he or she can be deprived to become a custodian.27

As we know, custodian is a role model to the children. If the custodian is having a bad manner and not a caring person, is it any good to let him or her to the right of custody? Indeed, nothing good will come out of it. Thus, it can be said that the custodian must have a good manner and attitude.

The character and the behaviour of the parent will be influence of their children. According to Imam al-Ghazali in his book Ihya Ulumuddin stated that the character among the children will developed before he or she attain the age of majority or mumayyiz.28

There are several qualification prescribed for a custodian. Among them are: 1. Must be a Muslim.29 Allah S.W.T. said in the Al-Quran: The Hanbali and the Syafie schools said that a non-Muslim has no right to the custody of a Muslim.30 This is to ensure that the religion of the child will be protected and he is not influenced by other religion. Allah said in the Quran:

27

Abdul Hamid, Muhammad Mahyuddin. 1995. al-Ahkam al-Akhwal al-Syakhsiah fi al-Syariat alIslami. Lubnan: Darul Hikmah. P. 404. 28 Al-Ghazali. Ihya Ulumuddin. 135H. First Edition. Mesir: Matbaah Uthmaniah. Vol. 3. P. 12. 29 Al-Syartini, al-Sayid Ahmad Umar. 1992. Al-Yaqut al-Nafis Fi Mazhab Ibn Idris . Lubnan: Darul Hikmah. P. 176. 30 Sayid Sabiq. 1973. Fiqh al-Sunnah. Beirut: Darul Kitab al-Arabi. Vol. 8. P. 86.

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The mothers shall give suck to their Children for two whole years, (that is) for those (parents) who desire to complete the term of suckling, but the father of the child shall bear the cost of the mother's food and clothing on a reasonable basis. no person shall have a burden laid on Him greater than He can bear. no mother shall be treated unfairly on account of her child, nor father on account of his child. and on the (father's) heir is incumbent the like of that (which was incumbent on the father). if they both decide on weaning, by mutual consent, and after due consultation, there is no sin on them. and if You decide on a foster suckling-mother for Your children, there is no sin on you, provided You pay (the mother) what You agreed (to give her) on reasonable basis. and fear Allh and know that Allh is All-Seer of what You do. Although Hanafi, Malik, Ibn Qasim and Abu Thawr have said that a Muslim is not the condition to become a custodian. Their view is that the non-Muslim also has the right to custody their children even an idiot is under the condition where the child is not attained the age of discretion.31
2. Sane and adult.32 It is because infant and insane people are unable to guide themselves

so how they want to guide others. It is also not guaranteed that they will take a good responsibility for custody. 3. Has the ability to bring up children. It includes that the custodian having the means to support the child and to provide a proper place for the child. A person who is old, handicapped or has infectious disease is not eligible for hadhanah.

31 32

Sayid Sabiq. 1973. Fiqh al-Sunnah. Beirut: Darul Kitab al-Arabi. Vol. 8. P. 86. Abdul Hamid, Muhammad Mahyuddin. 1995. al-Ahkam al-Akhwal al-Syakhsiah fi al-Syariat alIslami. Lubnan: Darul Hikmah. P. 404.

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4. Good character, honest and trustworthy.33 By having all these qualities then the child

will has a good role model to be followed.


5. Just. It means the person is not fasiq (sinner). The fasiq person has no right to become a

custodian because the majority of Islamic scholars view that the fasiq person is similar with the slave and unsound mind person which is cannot become a wali.34
6. The person is not apostate or murtad person. According to the view by Hanafi, the

apostate person should be detained until him or her return to the Islamic teaching or taubah.35
7. Free person. The slave person is disqualified to become a custodian even he or she has

permission by her or his custodian. The chore will be limiting her or his responsibility to become a custodian to her or his children.36

3.3

Duration Of The Custody The right of custody in priority belongs to the mother and her immediate family.

It has been verified by the following verse in the Al-Quran:

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Syeikh Hassan Khalid & Adnan Najja. 1964. Ahkam al-Akhwal Al-Syakhsiah fi al-Syariah alIslamiah. Beirut: al-Maktabah al-Tijari. P.281. 34 Al-Syartini, al-Sayid Ahmad Umar. 1992. Al-Yaqut al-Nafis Fi Mazhab Ibn Idris . Lubnan: Darul Hikmah. P. 176. 35 Muhammad Mahyuddin Abdul Hamid. 1995. Al-Ahkam al-Akhwal al-Syakhsiah fi al-Syariat alIslami. P.405. 36 Muhammad Mahyuddin Abdul Hamid. 1995. Al-Ahkam al-Akhwal al-Syakhsiah fi al-Syariat alIslami. P.404.

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233. the mothers shall give suck to their Children for two whole years, (that is) for those (parents) who desire to complete the term of suckling, but the father of the child shall bear the cost of the mother's food and clothing on a reasonable basis. no person shall have a burden laid on Him greater than He can bear. no mother shall be treated unfairly on account of her child, nor father on account of his child. and on the (father's) heir is incumbent the like of that (which was incumbent on the father). if they both decide on weaning, by mutual consent, and after due consultation, there is no sin on them. and if You decide on a foster suckling-mother for Your children, there is no sin on you, provided You pay (the mother) what You agreed (to give her) on reasonable basis. and fear Allh and know that Allh is All-Seer of what You do. According to the Hanafi school of thought 37, most of their previous jurist had said that the term of the childs custody will end whenever the child (male) is capable to manage his own needs such as food, attire and health and has an ability of doing istinja (purification by himself). The meaning of purification is that the child is able to cleaning himself for the purpose of cleaning any unclean elements on his body and is able to do an ablution. On the other hand, for female children, the duration of custody will end after they reached the age of puberty.

However, the other newest jurists of Hanafis schools have different opinion in this matter. In this matter, they said it is depend on the condition of the said child. They had confined the duration. Right of custody will be over if the child attained the age of mumaiyiz, rarely seven years old for the male children and nine years old for the female children.38

37

Peunoh Daly. 1994. Hukum Perkahwinan Islam. Second Edition. Selangor: Thinkers Library Sdn Bhd. P. 405. 38 N.A. 1994. Muhatsir Zawaid Musnad al Bazar ala Kutubul Sittah wa Musnad Ahmad . Beirut: Muassah al-Kitab as-Shiqafiah. Vol 1. P.405.

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According to Maliki school of thought view, the age limit for the duration of custody is begin from when she was born until she married and until the marriage is consummated.39

According to Syafie school of thought, there is no fixed limit for the duration of custody as there is no exact statement regarding the custody duration. Anyway, a child can choose when he or she is already mumaiyiz and reaches the age of seven.40

3.4

Disqualification Of The Right Of Custody As been discussed before, the priority of custody will goes to the mother with

certain conditions. However, her right to guardianship will be disqualified if:41 1) She remarried with another man who is not within the prohibited degree to the child so long as the marriage subsists. This condition is based on a tradition of a Prophet S.A.W. when he granted divorced mother custody of her son. 2) By going to reside at distance from the familys place of residence, except that a divorced woman may take her own children to her birthplace. 3) Failing to take proper care of the child. 4) Committing an act of gross and open immorality.

The first condition stated above is based on a tradition of the Prophet S.A.W. when he granted a divorce wife the custody of her son. Although the tradition would implies that the mother and fortiori, any other female custodian, would lose the right to custody
39

Peunoh Daly. 1994. Hukum Perkahwinan Islam. Second Edition. Selangor: Thinkers Library Sdn Bhd. P. 405. 40 Mimi Kamariah Majid. 1998. Undang-Undang Keluarga Islam. Second edition. Butterworth: Malayan Law Journal. P. 153. 41 Zaleha Kamaruddin. 2004. Islamic Family Law: New Challenges in the 21 st Century. First Edition. Kuala Lumpur: Research Centre International Islamic University Malaysia. P. 102.

25

of the child once she is married, regardless of the husbands relation to the infant if he is not its father, it is not always interpreted so sweepingly.

The Hanafis and Malikis restrict the marriage that deprives the woman of her right to custody to that with a stranger or a relative who is not prohibited to marry the infant. A woman who marries, say, a cousin of the infant shall lose that right, but shall retain it if she marries her uncle, in which event, loving care for the infant may be assumed, even if the wifes attention to the child may comprise part of her service to her husband. On the other hand, the Jaafaris maintains that any marriage with a man, even in a marriage, prohibited degree to the infant shall deprive the woman of the right to custody if the infants father alive and eligible, such right passing then to the father. In the absence of a father, the mother shall retain the right after her marriage, taking precedence over the grandfather.42

The above conditions also are most satisfied with the ulama fiqhs view. Ulamafiqh states that the mother has right to the custody of her child if:43 1) She is baligh. 2) She is sound mind. 3) She is able to bring up her child. 4) She has a good attitude and she is trustworthy. 5) She is not remarried. 6) Freedom. 7) Islam.

42 43

Jamal J. Nasir. 1986. The Islamic Law of Personal Status. London: Graham and Trotman Ltd. P. 160. Sharifah Zahrah Syed Mohammad. 2001. Hadanah: Pelaksanaannya Menurut Akta undang-Undang Keluarga Islam Wilayah Persekutuan (1984). Wanita Dan Perundangan Islam. P. 178-179.

26

Chapter Four The Practice Of Custody In Malaysia 4.1 Islamic Family Law (Federal Territories) Act 1984

With regard to the hadhanah or custody of children, the syariah court jurisdiction is provided under Ninth Schedule- State List. Custody involving Muslim is subjected to the jurisdiction of each respective state. By virtue of Article 121 (1A) of the Federal Constitution, all matters under the jurisdiction of Syariah Court shall not be interfered by the Civil Court (High Court). 44

However, this privilege is not exclusive as there is still no unity of Islamic Family Act/Enactment upon all over fourteen states. The sources is one, all of these state enactment and acts do referring divine source of Islam such as al-Quran, al-Hadith, Ijma, and Qias which has been practiced since thousand years ago.

Under Islamic Family Law (Federal Territories), section 81(1) states that 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. However, section 81(2) states that Where the Court is of the opinion that the mother is disqualified under Hukum Syarak 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;
44

Federal Constitution of Malaysia. Art. 121 (1A).

27

(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; (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 residuaries; provided that the custody of such person does not affect the welfare of the child. 45

Section 81(3) and (4) further provides that 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 degrees of relationship. 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.

For qualifications necessary for custody, section 82 states that A person to whom belongs the upbringing of a child, shall be entitled to exercise the right of hadanah if (a) she is a Muslim;
45

Islamic Family Law (Federal Territories) Act 1984. Section 81.

28

(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 (e) she lives in a place where the child may not undergo any risk morally or physically.46

The provision also states about how right of custody is lost. Section 83 states that: 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; (b) by her gross and open immorality; (c) by her changing her residence so as to prevent the father from exercising the necessary supervision over the child, except that a divorced wife may take her own child to her birth-place; (d) by her abjuration of Islam; (e) by her neglect of or cruelty to the child.47

Here, paragraph (a) of section 83 was amended I 1994 by including the qualification that the womans marriage to a person not related to the child within the prohibited degrees would result in her losing her right to the custody of the child only if her custody will affect the welfare of the child. It follows that if her custody does not affect the welfare of the child, she will not lose her right. The question of whether or
46 47

Islamic Family Law (Federal Territories) Act 1984. Section 82. Islamic Family Law (Federal Territories) Act 1984. Section 83.

29

not the welfare of the children will affected, depends on the facts and circumstances of each case and it is up to the court to decide. This amendment is certainly some progress as such remarriage by a mother does not automatically disqualify her as custodian of her child.48

With regard to the duration of custody, section 84 (1) of the same Act provides that 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. Section 84(2) further states that 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.

If the child is illegitimate, section 85 provides that the custody of illegitimate children appertains exclusively to the mother and her relations. With regard to the power of court, section 86 provides for the court to make an order for custody. 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.

48

Mimi Kamariah Majid. 1999. Family Law in Malaysia. P. 297.

30

Section 86(2) further states that 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 the wishes of the parents of the child and the wishes of the child, where he or she is of an age to express an independent opinion.49 Section 86(3) provides that it shall be a rebuttable presumption that it is for the good of a child during his or her infancy to be with his or her mother, but in deciding whether that presumption applies to the facts of any particular case, the Court shall have regard to the undesirability of disturbing the life of a child by changes of custody.50 Section 86 (4) further provides that 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. The court also 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 the custody and this was confirmed under section 86(5) of the same Act.51

Section 87(1) further states that an order for custody may be made subject to such conditions as the Court thinks fit to impose and, subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child.52

Section 87(2) provides that the court may impose conditions as to the place where the child is to live and as to the manner of his or her education, for the child to
49 50

Islamic Family Law (Federal Territories) Act 1984. Section 86. Ibid. 51 Ibid. 52 Islamic Family Law (Federal Territories) Act 1984. Section 87.

31

be temporarily in the care and control of some person other than the person given custody, for the child to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the Court considers reasonable, giving a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody the right of access to the child at such times and with such frequency as the Court considers reasonable, or prohibit the person given custody from taking the child out of Malaysia.53

4.2

States Enactment As we know, every states in Malaysia may adopt and practice any law that they

think suitable to their Adat or nature of the people. However, in this custody matter, it is seems to be all states have adopted the provision Islamic Family Law (Federal Territories) Act 1984 into their own enactment. As example, as being seen under Islamic Law Enactment of Kelantan54 , Kedah55, and Selangor.56

Section 8257 explains on the persons whom entitled to custody of a child that: (1) Subject to section 83, 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 Syarak from having the right to hadhanah or custody of her children, the right shall,
53

Ibid. Islamic Family Law (Kelantan) Enactment 2002 55 Islamic Family Law (Kedah Darul Aman) Enactment 2008 56 Islamic Family Law (State Of Selangor) Enactment 2003 57 Islamic Family Law (State Of Selangor) Enactment 2003. Islamic Family Law (Kedah Darul Aman) Enactment 2008. Islamic Family Law (Kelantan) Enactment 2002.Section 82
54

32

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-so ever; (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; (h) the uterine sister's daughter; (i) the sanguine sister's daughter; (j) he maternal aunt; (k) the paternal aunt; (l) the male relatives who could be their heirs as asabah or residuaries. It is similar to Islamic Family Law (Federal Territories) Act 1984, section 81(2).

Furthermore, Section 8358 has been adopted from Section 82 of Islamic Family Law (Federal Territories) Act 1984, states on the qualifications that is necessary for custody, where a person to whom belongs the upbringing of a child, shall be entitled to exercise the right of hadhanah if:(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;
58

Islamic Family Law (State Of Selangor) Enactment 2003. Islamic Family Law (Kedah Darul Aman) Enactment 2008. Islamic Family Law (Kelantan) Enactment 2002. Section 83

33

(d) she is of good conduct from the standpoint of Islamic morality; and (e) she lives in a place where the child may not undergo any risk morally or physically.

Section 8459 provides on how right of custody is lost. It was adopted from Section according to Section 82 of Islamic Family Law (Federal Territories) Act 1984, where the right of hadhanah of a woman may be 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; (b) by her gross and open immorality; (c) by her changing her residence so as to prevent the father from exercising the necessary supervision over the child, except that a divorced wife may take her own child to her birth-place; (d) by being a murtad; or (e) by her neglect of or cruelty to the child.

Regarding duration of the custody, it was stated under Section 8560 that: (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 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
59 60

Ibid. Section 84 Ibid. section 85

34

discernment (mumaiyiz), he or she shall have the choice of living with either of the parents, unless the Court otherwise orders.

Finally, Section 87 of these Enactments 61 give power to the Court to make order for custody where the Court may at any time by order choose to place a child in the custody of anyone of the persons mentioned therein or, where there are exceptional circumstances making it undesirable that the child be entrusted to anyone 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 welfare62.

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

It shall be a rebuttable presumption that it is for the good of a child during his or her infancy to be with his or her mother, but in deciding whether that presumption applies to the facts of any particular case, the Court shall have regard to the undesirability of disturbing the life of a child by changes of custody.64

61 62

Ibid. Section 87 Ibid. Section 87(1) 63 Ibid. Section 87(2) 64 Ibid. Section 87(3)

35

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, where there are two or more children of a marriage.65

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 the custody.66

4.2

Syariah Court Jurisdictions As been discussed before, Syariah Court despite of the different enactments

between all over fourteen states; refer to divine sources in delivering judgment. Thus, in practicing the Islamic law, states in Malaysia refer to divine sources upon deciding the case of custody in Syariah Courts. There are several cases to be shown regarding the application of various authorities and in access.

In Kelantan case, Ahmad v. Aishah,

67

the parties had three children aged 10

months, 2 years and 4 years at the time of divorce. It appeared that after the divorce in 1975, the two younger children remain with the mother while the eldest remained with the father. The father then remarried again and the second wife had given birth to a child. The mother claimed custody of the eldest child and she succeeded in the Kadis court. The Kadi relied on the hadith to the effect that the mother is more loving and better to take care after the child and is entitled to the custody, so long as she has not remarried. The kadi also referred to Ianat al-Talibin and Fiqh us-Sunnah and to the

65 66

Ibid. Section 87(4) Ibid. Section 87(5) 67 (1977) 1 JH (1) 55.

36

case where the Caliph Abu Bakar ordered Umar to give up custody of his child to the maternal grandmother of the child.

The father appealed to the Board of Appeal. In dismissing the appeal, the Board distinguished the earlier case of Siti Aishah v Wan Abdul Aziz.68 In this case, they pointed out that the girl was staying with her father and her paternal grandmother, who has under the Islamic law a right to custody of the child. In this case, however, the child was looked after by the stepmother and the Board held that it was to the interest of the child and for her welfare that she should be looked after by her mother rather than by the stepmother, who has no right of custody over the child.

In another case Harun v. Che Gayah69, the facts were that the parties married in 1969 and had one child, Zaiton, born in1971. The parties were divorced in 1972 and after the divorce, the child remained with the mother and was brought up by her. The father registered his daughter as a pupil in a school in Kota Bharu and on 1 january 1978 he took the child from the mother and sent her to the school. After a month the mother came to the school and took the child back to her village. It appeared that the wife had remarried. The father claimed custody of the child. After hearing the parties, the learned Kadi questioned the child whether she wanted to be with her mother and did not want to go with her father.

The learned Kadi dismissed the claim and in his judgment it was said that based from the evidence tendered, it was clear that the girl had been brought by her mother since her childhood and had been with her father only for one month when the mother
68 69

(1975) 1 JH (1) 47, 50. (1975) 1 JH (1) 66.

37

took her back. In the long period when she was with her mother, she had accustomed herself to be with her mother and if she were removed from her mother this would affect her feelings and be detrimental to her interest and welfare, especially in regard to her education, even though she might be sent to a better school that is in the town.

The essence and aim of the custody are the interest and the welfare of the child and these are the fundamental rights of the child. This right must take precedence over the rights of those who claim custody over the child. For these reasons, the learned Kadi dismissed the claim and ordered the child to remain with the mother, in accordance with ruling: Both the person who has custody and the person over whom the custody is exercised have their rights but the right of the person over whom custody is exercised is stronger than the right of the person who custody.70

In the case of Mohammed v Azizah,71the parties were married in 1968 and were divorced in 1972. They had one child, Mariati, born in 1969. After the divorce the child remained with the mother and there was a written agreement provided which contained various condition including one that the child was not to be taken out of Kelantan and that if the mother remarried, the child was to be handed over to the father. The conditions were made before and recorded by the Kadi, who stated in his oral evidence that if the wife had not agreed to the condition, the husband would not divorce her. After the divorce the father gave maintenance for the child till 1977, when he stopped paying the maintenance. The mother then applied for maintenance for the child. In his reply, the husband stated that he was under no obligation to maintain the child as the
70 71

Syed Sabik in his Fiqh us-Sunnah, Vol 8. (1979) 1 JH (1) 79.

38

child should have been returned to his custody as the mother had remarried. The question of custody was then tried with the father as the plaintiff and the mother as the defendant.

The appellant relied on the agreement and stated that as the respondent had remarried with another man, the right to custody should be given to the husband. He admitted that he too had married and had three other children. The respondent claimed that the rights of the child must be considered. The child lived happily with the mother and if she were removed from the mothers custody her welfare would be affected. The respondent called the principle of the school where the child was educated, who said that the child was making good progress and that her progress would be affected if her home surrounding were disturbed. The learned Kadi decided that the child should remain with the respondent.

He stated that the evidence showed that the girl had been living with the respondent since the divorce in 1971 and that the appellant had given maintenance for up to 1977. Thus, the child had been staying with the mother for over seven years before the appellant claimed custody. During that long period she used to live with the respondent and she said herself that she preferred to stay with the respondent and she did not want to stay with her father. Her progress in school was good and she had also had learned religious knowledge. It would appear therefore her feelings and her education would be affected if she were removed from her mother guardianship. In his judgment, the learned Kadi held: The basis and purpose of custody is for the welfare and good of the child who is to be looked after, as a fundamental right, and this right must be given

39

preference to the right of those who claim the right of custody, as is clear from what is stated in the Tuhfah and as stated by Ibn Salah and accepted by Syed Sabiq in his Fiqh al-Sunnah, vol 8.

In Maheran v Khairuddin,72 the mother had married with a non-muslim and has no related with the child after she and her husband divorce in 1991. The issue of custody arose. The judge referred to the Islamic Family Law Enactment of the State of Pahang where section 84(a) provides that a mother will lose her right of hadanah if she remarries a person not related to the child within the prohibited degrees. So the judge awarded the custody rights to the father but the mother was given a visitation rights and she could take the children during the school holidays to stay with her.

In K v S,73 the Chief Kadi made an order giving custody of female child of the marriage to the mother, who had been divorced by the father of the child. The husband appealed. Subsequently, it was appeared that the child had been sexually assaulted the father obtained an interim order giving custody to the father. At the hearing of appeal, counsel for both parties informed the court that the parties had agreed that the custody of the child to be given to the father, with the rights of visitation to the mother. The appeal Board held that because of the material change in the circumstances and having regard to the welfare of the child as paramount consideration, the court would confirm the agreement between the parties and make a consent order for the custody to be given to the father, subject to adequate rights of visitation to the mother.

72 73

(1994) 11 JH 187. (1990) 1 MLJ 1x.

40

Chapter Five Conclusion

Under Islamic law, custody is regarded as the right of the child and of the parents especially of the mother. The child needs someone to look after its needs, and if the child is of tender years, the mother is the best person to look after him or her.

With regard to the hadhanah or custody of children, the Syariah Court jurisdiction is provided under Ninth Schedule- State List. Custody involving Muslim is subjected to the jurisdiction of each respective state. By virtue of Article 121 (1A) of the Federal Constitution, all matters under the jurisdiction of Syariah Court shall not be interfered by the Civil Court (High Court). 74

However, this privilege is not exclusive as there is still no unity of Islamic Family Act/Enactment upon all over fourteen states. The sources is one, all of these state enactment and acts do referring divine source of Islam such as al-Quran, al-Hadith, Ijma, and Qias which has been practiced since thousand years ago.

It was understood that, by referring to all of the authorities given, it was agreed by majority of Islamic Scholars or Ulama that the right of the childs custody will goes to the mother. It is priority to the mother as stated in al-Quran and al-Sunnah. However, the right of the childs custody goes to the father after specific period, where the child attained the age of discretion.

74

Federal Constitution of Malaysia. Art. 121 (1A).

41

The right of hadhanah to the child custody will passed to the father once the child reach the age of seven for male and nine for female under as section 84(2) of Islamic Family Law (Federal Territories) Act 1984, but the mother may apply for a two years extension under section 84(1) of the same Act. If the child has reached the age of discernment, he or she may choose to live with either of the parents under section 84(2).

The court, when deciding in whose custody a child should be placed, will take into account: 1) The welfare and interests of the child 2) The wishes of the parents of the child 3) The wishes of the child, where he or she is of an age to express an independent opinion. However, the party which doesn't get custody will be granted visitation rights in order to encourage parent-child bonding.

At the end of the day, it is all about the courts discretion. The court usually will look at the circumstances of the case, and then will rely on the Islamic books that will guide them in making any judgment. As example, in the case of Mohammed v Azizah, where the court held that the basis and purpose of custody is for the welfare and good of the child who is to be looked after, as a fundamental right, and this right must be given preference to the right of those who claim the right of custody, as is clear from what is stated in the Tuhfah and as stated by Ibn Salah and accepted by Syed Sabiq in his Fiqh al-Sunnah, vol 8.

42

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