Child welfare trumps religion in custody battle, Perlis Fatwa council says in new edict

Perlis mufti Datuk Dr Mohd Asri Zainul Abidin said the committee found it unfair to determine the winner of a child custody battle based solely on which parent is Muslim as the overall welfare and interests of the child were more important. — Picture by Choo Choy May
Perlis mufti Datuk Dr Mohd Asri Zainul Abidin said the committee found it unfair to determine the winner of a child custody battle based solely on which parent is Muslim as the overall welfare and interests of the child were more important. — Picture by Choo Choy May

KUALA LUMPUR, July 27 — In a landmark decision, the Perlis Fatwa Committee has issued an edict stating that a child’s welfare takes priority over religion in custody battles involving Muslim convert and non-Muslim parents.

The Star reported today that state mufti Datuk Dr Mohd Asri Zainul Abidin said the committee found it unfair to determine the winner of a child custody battle based solely on which parent is Muslim as the overall welfare and interests of the child were more important.

“The common case these days is that both parents are non-Muslims, and then one of them converts to Islam. If going by the Shariah court, then custody is unquestionably given to the Muslim parent.

“This is actually not right, as there is no basis for that sort of ruling, whether in the Quran or hadith.

“We released this fatwa to let them know that it is not a sin to offer custody to a non-Muslim parent, especially if that person is better equipped to care for the child,” he said, as reported by the daily.

He added that the fatwa committee will propose that the edict be adopted as a guideline by Shariah judges when evaluating such cases.

Mohd Asri also said the courts needed to judge which parent was more suitable by studying their background and lifestyle, as well as taking into consideration the choice of the child.

“If both parents are equally suitable to care for the child, then the child has the right to choose which parent he or she wants to live with.

“This is provided the child is old enough to decide,” he said.

According to the report, it will still be compulsory for the Muslim parent to introduce Islam to the child, whether they have custody or not.

However, he said religion should not be forced upon the children.

The fatwa committee also ruled that custody should automatically be granted to the mother if she is still breastfeeding the child.

The edict, which was passed by the state Islamic religious council recently, is also a general guide for Muslim parents, who often feel guilty for giving up custody to a non-Muslim spouse, according to the report.

Custody battles of children in Malaysia involving Muslim convert and non-Muslim parents have always been messy with the authority of the civil courts and Shariah courts overlapping.

The most recent case being Muslim convert Izwan Abdullah’s fight against a custody order in favour of his Hindu ex-wife S. Deepa.

Deepa won custody of both her son and ten-year-old daughter Shamila at the Seremban High Court in April 7, but Izwan ― formerly Viran Nagapan ― snatched the boy from Deepa two days later.

Izwan has justified the snatching with a 2013 Shariah Court order that granted him custody of the two children after he had converted them to Islam unilaterally, but the civil courts had overturned the Shariah court’s custody order.

The case has ended at the Federal Court, although a decision has yet to be announced.

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