Legitimacy of Children
l Shafii school of law – where a child is born to a woman who is married to a man
(a) after 6 months from the date of the marriage; or
(b) within 4 years of the termination of the marriage, the mother not having remarried, the paternity of the child is established with the husband.
Ascription of paternity
110. Where a child is born to a woman who is married to a man more than six qamariah months from the date of the marriage or within four qamariah years after dissolution of the marriage either by the death of the man or by divorce, the woman not having remarried, the nasab or paternity of the child is established in the man, but the man may, by way of li’an or imprecation, disavow or disclaim the child before the Court.
l S110 means if child is born after 6 mths of marriage or within 4 years after dissolution of mrg the paternity is established in the man.
l If within 6 months, the paternity of the child would not be so established unless the man asserts that the child is his and does not say that the child is the result of fornication (zina)
S113. Where a man has syubhah sexual intercourse with a woman, and she is subsequently delivered of a child between the period of six qamariah months to four qamariah years after the intercourse, the paternity of the child shall be ascribed to the man.
Conditions for valid acknowledgment
114. Where a man acknowledges another, either expressly or impliedly, as his lawful child, the paternity of the child shall be established in the man, if the following conditions are fulfilled, that is to say:
(a) the paternity of the child is not established in any one else;
(b) the ages of the man and the child are such that filial relationship is possible between them;
(c) where the child is of discreet age, the child has acquiesced in the acknowledgment;
(d) the man and the mother of the child could have been lawfully joined in marriage at the time of conception;
(e) the acknowledgment is not merely that he or she is his son, but that the child is his legitimate son;
(f) the man is competent to make a contract;
(g) the acknowledgment is with the distinct intention of conferring the status of legitimacy;
(h) the acknowledgement is definite and the child is acknowledged to be the child of his body.
Presumption from acknowledgment rebuttable
115. The presumption of paternity arising from acknowledgment may only be rebutted by—
(a) disclaimer on the part of the person acknowledged;
(b) proof of such proximity of age, or seniority of the acknowledgee, as would render the alleged relationship physically impossible;
(c) proof that the acknowledgee is in fact the child of some other person; or
(d) proof that the mother of the acknowledgee could not possibly have been the lawful wife of the acknowledger at the time when the acknowledgee could have been conceived.
Hai Ghazali v Asmah
F: parties were married in Nov 1974 and were divorced on August 1975. The wife claimed maintenance for a child born on 11 Augs 1975 but the H denied that the child was his. The Kadi who heard the case gave judgment for the wife. He held that the child was legitimate and ordered the H to pay maintenance for the child. H appealed.
H: dismissed the appeal. There is no evidence to show that the W was pregnant when she was married. The H should have taken steps to deny that the child was his as soon as possible but his case he did not do so but only raised it as a defence to a claim by the W. In this case, the child was born during the marriage and was born more than 6 months after the marriage.
Salim v Masiah
F: R had claimed maintenance for her child. R married the A o Oct 1968 and the child was born on June 1969. The A divorced the R on the Nov 1968. The defence is that A stated that R was already pregnant at the time of the marriage.
H: Kadi gae judgment for the W, as the child was born more than eight months after the marriage and A had not mentioned the matter of the pregnancy of the R at the time of the marriage when he applied for divorce. Appeal dismissed.
Wan Azmi v Nik Salwani
F: parties were married on Jun 1987 and were divorced on Feb 1988, the D gave birth to a child. The D brought an action to claim maintenance for the child. The P denied that the child was his and applied for an order to declare that the child was not his.
H: the court of the Kadi Besar held that as there was evidence that there had been sexual intercz btw the parties and the child was born more than 6 months after the sexual intercz, the child should be regareded as the legitimate child of the P. Although P knew that the D had given birth to the child, he did not take steps to disacknowledge the child and only did so when the claim for maintenance was made. The claim of the P was thus dismissed.
Custody of Children
Persons entitled to custody of a child
81. (1) Subject to section 82, the mother shall be of all persons the best entitled to the custody of her infant children during the connubial relationship as well as after its dissolution.
(2) Where the Court is of the opinion that the mother is disqualified under Hukum 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;
(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.
(3) No man shall have a right to the custody of a female child unless he is a muhrim, that is to say, he stands to her within the prohibited degrees of relationship.
(4) Subject to sections 82 and 84, where there are several persons of the same line or degree, all equally qualified and willing to take charge of the child, the custody shall be entrusted to the one most virtuous who shows the greatest tenderness to the child, and where all are equally virtuous, then the senior among them in age shall have the priority.
Qualifications necessary for custody
82. 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;
(d) she is of good conduct from the standpoint of Islamic
(e) she lives in a place where the child may not undergo any risk morally or physically.
How right of custody is lost
83. The right of hadhanah 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 custodywill 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.
Duration of custody
84. (1) The right of the hadhinah 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 hadhinah, 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 hadhinah, 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.
Custody of illegitimate children
85. The custody of illegitimate children appertains exclusively to the mother and her relations.
Power of the Court to make order for custody
86. (1) Notwithstanding section 81, the Court may at any time by order choose to place a child in the custody of any one of the persons mentioned therein or, where there are exceptional circumstances making it undesirable that the child be entrusted to any one of those persons, the Court may by order place the child in the custody of any other person or of any association the objects of which include child welfare.
(2) In deciding in whose custody a child should be placed, the paramount consideration shall be the welfare of the child and, subject to that consideration, the Court shall have regard to—
(a) the wishes of the parents of the child; and
(b) the wishes of the child, where he or she is of an age to express an independent opinion.
(3) 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.
(4) 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.
(5) 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.
Orders subject to conditions
87. (1) 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.
(2) Without prejudice to the generality of subsection (1), an order for custody may—
(a) contain conditions as to the place where the child is to live and as to the manner of his or her education;
(b) provide for the child to be temporarily in the care and control of some person other than the person given custody;
(c) provide 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;
(d) give 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
(e) prohibit the person given custody from taking the child out of Malaysia.
l S81(1) Subject to S82, the mother shall be of all persons the best entitled to the custody of her infant during the connubial relationship as well as after its dissolution.
l Under the Islamic law, the custody is regarded as the right of the child and of the parents especially of the mother.
l It is reported from Abdullah ibn Amr that a woman complained to the Prophet (pbuh): ‘Messenger of Allah my womb is a resting place of 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 (pbuh) said ‘You got more right to take him till you marry someone else’.
l It is reported from Abu Hurairah that a woman came to the Prophet (pbuh) and said: ‘Oh Messenger of Allah my husband wishes to go away with my son while he did me some service.’ Then the Prophet (pbuh) 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.
Wan Abdul Aziz v Siti Aishah
F: the husband and engineer and the W a headmistress, had married while they were studying in Australia. They had two children. After they turned to Malaysia, there were differences btw them and eventually in 1973 they separated. After the separation the younger girl, Kartini stayed with the father in Kota Bharu where she was looked after by her paternal grandmother. The elder girl Tasma, stayed with the mother. There was a divorce by mutual consent between the parties in 1974. The mother claimed custody of the younger daughter, Kartini, who was then 4 years old. It appeared that at that stage the mother was still a divorcee but the husband had remarried again.
H:Kadi gave custody of the child to have custody of the child. In its judgment the Board said: According to the evidence it is clear that KArtini began to live under the care and custody of her father and her grandmother from the time she was aged two years and 3 months and it was only after she had lived for over a year and a half that the mother took steps to claim custody. Kartini has got used to and to love her grandmother. Because of this Appeal Board feels that it would seriously affect her feelings if she were separated from her grandmother. The basis and aim of custody is the welfare of the child who is to be looked after and this is the basic right of the child. This right must be paramount to the right of the person who claims the custody. In this case there is no evidence to show that the welfare of the child has been affected by her staying under the case of her grandmother, and the control of her father.
Wan Khadijah v Ismail
F: the mother claimed custody of her 5 children whose ages ranged from 7 -14 years. The mother had remarried again.
H: at the hearing, the Kadi asked the children to chose with whom they would like to live and they chose to live with the father. The Kadi gave custody of the children to the father relying on a passage in the Mugni Muhtaj to the effect that if the mother has remarried the right of custody goes to the father. The mother’s appeal to the Board of Appeal was dismissed. The Board relied on the fatwa of Shaik Ramly to the effect that if the children are grown up and if both the father and mother have remarried again, the right of custody belongs to the father.
Mohamed Salleh v Azizah
F: the parties were married in 1968 and divorced in 1972. They had one child, born in 1969. After the divoce the child remained with the mother and there was written agreement which so provided and which obtained various conditions including one that stated 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 sated in his oral evidence that if the wife had not agreed to the condition, the H would not have divorced 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 H stated that he was under no obligation to maintain the child as the child should have been returned to his custody as the mother had remarried.
H: Father relied on the agreement and stated that as the mother had married again the custody of the child should be given to him. He admitted that he too had married and had 3 other children. Mother claimed that the rights of the child must be considered. The child was living happily with the mother and if she were removed from the mother’s custody her welfare would be affected. The kadi said that the basis and purposed of custody is for the welfare and good of the child who is to be looked after, as fundamental right of the child, and this right must be given preference to the right of those who claim the right of custody. This has been staed by Ibn Salah, “ the person who has the right of custody and the children over whom custody is claimed both have right of custody and the children over whom custody is claimed both have rights but the right of the children is stronger that the of the person claiming custody”.
Maintenance of Children
It is normally the duty of the father to maintain his children and this is set out in the IFLA .
72. Duty to maintain children.
(1) Except where an agreement or order of Court otherwise provides, it shall be the duty of a man to maintain his children, whether they are in his custody or the custody of any other person, either by providing them with such accommodation, clothing, food, medical attention, and education as are reasonable having regard to his means and station in life or by paying the cost thereof.
(2) Except as aforesaid, it shall be the duty of a person liable under Hukum Syara‘, to maintain or contribute to the maintenance of children if their father is dead or his whereabouts are unknown or if and so far as he is unable to maintain them.
73. Power of Court to order maintenance for children.
(1) The Court may at any time order a man to pay maintenance for the benefit of any child of his-
(a) if he has refused or neglected to provide reasonably for his child;
(b) if he has deserted his wife and the child is in her charge;
(c) during the pendency of any matrimonial proceedings; or
(d) when making or subsequent to the making of an order placing the child in the custody of any other person.
(2) The Court shall have the corresponding power to order a person liable under Hukum Syara‘, to pay or contribute towards the maintenance of a child where it is satisfied that having regard to his means it is reasonable so to order.
(3) An order under subsection (1) or (2) may direct payment to the person having custody or care and control of the child or to the trustee for the child.
74. Power of Court to order security for maintenance of a child.
(1) The Court may, when ordering the payment of maintenance for the benefit of any child, order the person liable to pay the maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay the maintenance or a part thereof out of the income from the property.
(2) Failure to comply with the order requiring the person liable to vest any property in trustee for the purpose of subsection (1) shall be punishable as a contempt of Court.
75. Power of Court to vary order for custody or maintenance of a child.
The Court may, on the application of any interested person, at any time and from time to time vary, or at any time rescind, any order for the custody or maintenance of a child, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.
76. Power of Court to vary agreement for custody or maintenance of a child.
The Court may at any time and from time to time vary the terms of any agreement relating to the custody or maintenance of a child, whether such agreement was made before or after the appointed date, notwithstanding any provision to the contrary in the agreement, where it is satisfied that it is reasonable and for the welfare of the child so to do.
77. Recovery of arrears of maintenance of a child.
Section 69 shall apply, mutatis mutandis, and according to Hukum Syara‘ to orders for the payment of maintenance for the benefit of a child.
78. Duty to maintain child accepted as member of family.
(1) Where a man has accepted a child who is not his child as a member of his family, it shall be his duty to maintain the child while he or she remains a child, so far as the parents of the child fail to do so, and the Court may make such orders as may be necessary to ensure the welfare of the child.
(2) The duty imposed by subsection (1) shall cease if the child is taken back by either of his or her parents.
(3) Any sum expended by a man in maintaining a child as required by subsection (1) shall be recoverable from the father or mother of the child.
79. Duration of order for maintenance of a child.
(a) where an order for maintenance of a child is expressed to be for any shorter period; or
(b) where any such order has been rescinded; or
(c) where any such order is made in favour of-
(i) a daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself;
(ii) a son who is, by reason of some mental or physical disability, incapable of maintaining himself,
the order for maintenance shall expire on the attainment by the child of the age of eighteen years, but the Court may, on application by the child or any other person, extend the order for maintenance to cover such further period as it thinks reasonable, to enable the child to pursue further or higher education or training.
80. Duty to maintain illegitimate children.
(1) If a woman neglects or refuses to maintain her illegitimate child who is unable to maintain himself or herself, other than a child born as a result of rape, the Court, upon due proof thereof, may order the woman to make such monthly allowance as the Court thinks reasonable.
(2) [Deleted]. [Act A902]
(3) A monthly allowance under this section shall be payable from the date of commencement of the neglect or refusal to maintain or from such later date as may be specified in the order.
1)Khalid v Halimah
– the div wife claimed maintenance for her 4 children who were in her custody. In this case the father was a merchant running a business . The mother is a teacher. The father had been paying Rm100 a month for the maintenance of the children. The learned Chief Kadi gave judgment in fav or the mother and ordered payment of a total sum of RM170 a month for the maintenance of the children. On appeal , the amount was reduced to RM120 .
2) Wan Abdul Hamid v Maimunah
– The div wife claimed maintenance for 3 children. She stated that the father was a rubeber tapper with RM300 a month and she asked for RM100 per month as maintenance . The father stated that his income was only RM100 and he offered RM30 a month as maintenance for the Children. No witnesses were called by either of the parties but the learned Kadi ordered the father to pay the applicant RM90 a month as maintenance . On appeal, the father was asked to take an oath, and the payment reduced to RM60 per month.
3) Wan Maamoh v Cik Jah
– the div wife claimed maintenance for her 2 y/o child. She asked for RM150 per month but father offered Rm30 per month. The kadi ordered the payment of RM45 .
4) Zawiyah v Ruslan
– the div wife claimed maintenance for daughter for RM100 a month . Kadi held that it’s the duty of the father to maintain his child . The kadi ordered the father to pay RM45as maintenance.
5) Tengku Anun Zaharah v Dato Dr Hussien
– at the time of div the father agreed to pay RM500 as maintenance of his child. The mother claimed an additional 350 a month. The kadi increased the maintenance to RM800 a month from the date of application.
6) Roslan Btw Abdul Ghani v Zulkifli
– the kadi dismissed the claim for the maintenance of a child born outside wedlock.