Saadiah Din, Malaysia
Under the Islamic Family Law (Federal Territories) Act, provisions for physical custody are governed in Sections 81 to 87. Under the law, a child below the age ‘mumaiyyiz’ (puberty) will go to the mother while a child above the age of ‘mumaiyyiz’ has a right to choose between either the mother or the father. Section 83 enumerate several circumstances where the mother loses her right to custody of a child, including where the mother has remarried and her remarriage would affect the welfare of the child. The paramount consideration is supposed to be the welfare of the child. However, it was pointed out during the discussion that mothers who were converts to Islam often face discrimination as there tend to be a perception that a mother who is a convert would be unable to raise the child according to the Muslim way of life.
When it comes to the question of legal guardianship, the father is the primary guardian under the Islamic Family Law Act and enactments. The previous provision in the Guardianship of Infants Act for non-Muslims also declared the father to be the primary guardian of his child. However, in 1999, the Guardianship Act was amended to provide for equal guardianship rights for both father and mother. Unfortunately this amendment is not applicable to Muslims. The women’s groups are now advocating for an amendment to the guardianship provisions in the Islamic Family law Act and enactments. In the meantime, there is an administrative directive issued by the government authorising Muslim mothers as well as other mothers to sign any necessary documents for the child e.g. school registration, identity card registration and passport application.
Regarding financial support, under the law, the father is obliged to pay for the maintenance of his children. The law provides for the court to take into account the financial means of father. However, in practice it is often difficult to produce the evidence to prove the financial means of the father. The law also allows maintenance order to be varied due to change in circumstances e.g. if the children are going for further study, or need special care for medical reasons etc. The court is able to order deductions for maintenance from the husband’s salary if the husband is a salaried employee, especially where the husband is employed in the government service. If the husband is employed by a private employer, the employer’s cooperation could facilitate enforcement of the maintenance order. Problems of enforcement often arise where the husband is employed by his own family company or is self-employed.
Hindun Anisah, Indonesia
When the parents are divorced the legal provisions on custody are as follows; (i) the custody of children not yet mumaiyyiz or under reaching 12 years is the right of the mother. (ii) the custody of children already mumaiyyiz is based on the choice of the children between either the father or the mother. Regarding financial support, the father is responsible to pay for the maintenance of his children. However, the problem arises when the father has failed to pay maintenance and there is no enforcement officer to force him to do so. Although it is possible for the mother to go to court for maintenance of the children, in many cases the mother could not afford to incur the legal costs involved in going to court.
Halijah Mohammad, Singapore
The civil and syariah laws state that the welfare of the child is a paramount consideration. From the decided cases, physical custody is often granted to the mother as the Chief Justice has stressed the importance of the bonding relationship between mother and child. The court may either make an order for sole custody solely or for joint custody. In the case of joint custody, the care and control of the child is still with one parent, although the other parent will also be involved in the decisions related to the upbringing of the child. The parent who does not have custody i.e. usually the father is entitled to have access to the child, unless the mother can prove that abuse has taken on the child during the access period.
In Singapore, maintenance orders for Muslims are also within the jurisdiction of the civil Family Court. In the civil court, if both parents have their own incomes, then they both have the legal duty to provide maintenance for their child. The court would determine the proportion of each parent’s contribution for the child’s maintenance. There is a High Court decision in a case where the mother earnings is very much higher than the father’s earnings, and the court decided that a proportion of 2/3 of the child’s maintenance should be contributed by the mother.
Norma A. Maruhom, the Philippines
The custody of a child, either male or female, who is below 7 years old belongs to the mother or maternal grandmother, paternal grandmother, sister and aunt. A child, either male or female, who is above 7 years old but below the age of puberty may choose the parent with whom she / he would want to stay with. However, when a daughter has reached the age of puberty the law provides that she shall stay with the father and when a son has reached the age of puberty the law provides that he shall stay with the mother. Norma (the paper presenter) put forward the recommendation that the children (daughters and sons) should continue to be allowed to choose either to stay with the mother or the father after they have attained the age of puberty.
When it comes to guardianship, it is actually divided into three categories; i.e. guardianship as to the person of a young child, guardianship upon the puberty of the child and guardianship as to the marriage of the child. The first type is usually given to the mother or other female relatives, while the other two types are by operation of law given to the father or male relatives. On the issue of maintenance, the father is responsible to provide maintenance for a child, in respect of his education, clothing etc until the age of maturity, unless the maintenance has ceased upon the death of the recipient or when the recipient commits any act which would give rise to disqualification to inherit or denial of support under Muslim law. The amount of support shall be in proportion to the resources of the giver and the needs of the recipient.
During the discussion session, one of the participants from Pakistan, Cassandra, explained that in Pakistan, the guardianship is with the father and the custody is with the mother. However, if the mother is a foreigner or convert to Islam (not Muslim by birth) then the custody will not usually be given to her. However, a few years ago in 1994, there was a case when the court granted custody to the mother even though she was a foreigner. The father was given access to the child. In the year 2000, a Japanese mother was given custody and the court allowed her to take the child back to Japan as the court gave consideration to the welfare of the child. Cases of “children snatching” are rampant in Pakistan, and the High Court allows habeus corpus for the child to be returned as soon as possible.