Jurisdictional conflict in interfaith child custody disputes: a legal discourse in Malaysian courts

Conflict of jurisdiction between the Civil and Syari’ah court is not a new issue in a dual legal system such as in Malaysia. Intense debate escalates when deciding on custodial rights after divorce in an interfaith marriage. The unilateral conversion to Islam by one party in a non-Muslim marriage ha...

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Main Authors:	Mohd Zin, Najibah, Mohamed Jani, Hidayati, Hamid, Abdul Ghafur@Khin Maung Sein, Abdul Hak, Nora
Format:	Article
Language:	English
Published:	International Institute of Islamic Civilisation and Malay World (ISTAC) 2019
Subjects:	KPG Malaysia
Online Access:	http://irep.iium.edu.my/73004/ http://irep.iium.edu.my/73004/ http://irep.iium.edu.my/73004/7/73004%20JURISDICTIONAL%20CONFLICT.pdf

id	iium-73004
recordtype	eprints
spelling	iium-730042019-09-26T10:19:44Z http://irep.iium.edu.my/73004/ Jurisdictional conflict in interfaith child custody disputes: a legal discourse in Malaysian courts Mohd Zin, Najibah Mohamed Jani, Hidayati Hamid, Abdul Ghafur@Khin Maung Sein Abdul Hak, Nora KPG Malaysia Conflict of jurisdiction between the Civil and Syari’ah court is not a new issue in a dual legal system such as in Malaysia. Intense debate escalates when deciding on custodial rights after divorce in an interfaith marriage. The unilateral conversion to Islam by one party in a non-Muslim marriage has an impact on the status of the marriage and it is a legally recognised ground for divorce. A significant development is when the custody of a child is an issue since both parties are no longer subject to the same set of laws and courts for the purpose of adjudication. The current practice suggests that the converted parent is given preference in custodial rights by the Syari’ah court, which is consistent with the view of the Shafi’i school of law. The approach has caused dissatisfaction particularly among non-Muslim spouses who question whether the decision has served the best interest of the child especially in cases where the child is very young. This paper seeks to examine the extent of the jurisdictional conflict in interfaith custody disputes in Malaysia and the principle applied in the determination of each case. The research method employed in this study is mainly a textual analysis of relevant materials and resolved cases relating to interfaith custody disputes. The study also adopts qualitative analysis in examining the strength and weaknesses of the existing law in resolving the conflicts. Judicial interpretation and the judgments of the court are also analysed in identifying relevant principles adopted by both Civil and Syari’ah courts. The study concludes that of paramount importance is the best interest of the child which must be the guiding principle in deciding custodial rights in interfaith custody disputes, besides other dispute resolution mechanisms. International Institute of Islamic Civilisation and Malay World (ISTAC) 2019-07 Article PeerReviewed application/pdf en http://irep.iium.edu.my/73004/7/73004%20JURISDICTIONAL%20CONFLICT.pdf Mohd Zin, Najibah and Mohamed Jani, Hidayati and Hamid, Abdul Ghafur@Khin Maung Sein and Abdul Hak, Nora (2019) Jurisdictional conflict in interfaith child custody disputes: a legal discourse in Malaysian courts. Al-Shajarah: Journal of The International Institute of Islamic Thought and Civilization (ISTAC), 24 (1). pp. 1-24. ISSN 1394-6870 https://journals.iium.edu.my/shajarah/index.php/shaj/article/view/851
repository_type	Digital Repository
institution_category	Local University
institution	International Islamic University Malaysia
building	IIUM Repository
collection	Online Access
language	English
topic	KPG Malaysia
spellingShingle	KPG Malaysia Mohd Zin, Najibah Mohamed Jani, Hidayati Hamid, Abdul Ghafur@Khin Maung Sein Abdul Hak, Nora Jurisdictional conflict in interfaith child custody disputes: a legal discourse in Malaysian courts
description	Conflict of jurisdiction between the Civil and Syari’ah court is not a new issue in a dual legal system such as in Malaysia. Intense debate escalates when deciding on custodial rights after divorce in an interfaith marriage. The unilateral conversion to Islam by one party in a non-Muslim marriage has an impact on the status of the marriage and it is a legally recognised ground for divorce. A significant development is when the custody of a child is an issue since both parties are no longer subject to the same set of laws and courts for the purpose of adjudication. The current practice suggests that the converted parent is given preference in custodial rights by the Syari’ah court, which is consistent with the view of the Shafi’i school of law. The approach has caused dissatisfaction particularly among non-Muslim spouses who question whether the decision has served the best interest of the child especially in cases where the child is very young. This paper seeks to examine the extent of the jurisdictional conflict in interfaith custody disputes in Malaysia and the principle applied in the determination of each case. The research method employed in this study is mainly a textual analysis of relevant materials and resolved cases relating to interfaith custody disputes. The study also adopts qualitative analysis in examining the strength and weaknesses of the existing law in resolving the conflicts. Judicial interpretation and the judgments of the court are also analysed in identifying relevant principles adopted by both Civil and Syari’ah courts. The study concludes that of paramount importance is the best interest of the child which must be the guiding principle in deciding custodial rights in interfaith custody disputes, besides other dispute resolution mechanisms.
format	Article
author	Mohd Zin, Najibah Mohamed Jani, Hidayati Hamid, Abdul Ghafur@Khin Maung Sein Abdul Hak, Nora
author_facet	Mohd Zin, Najibah Mohamed Jani, Hidayati Hamid, Abdul Ghafur@Khin Maung Sein Abdul Hak, Nora
author_sort	Mohd Zin, Najibah
title	Jurisdictional conflict in interfaith child custody disputes: a legal discourse in Malaysian courts
title_short	Jurisdictional conflict in interfaith child custody disputes: a legal discourse in Malaysian courts
title_full	Jurisdictional conflict in interfaith child custody disputes: a legal discourse in Malaysian courts
title_fullStr	Jurisdictional conflict in interfaith child custody disputes: a legal discourse in Malaysian courts
title_full_unstemmed	Jurisdictional conflict in interfaith child custody disputes: a legal discourse in Malaysian courts
title_sort	jurisdictional conflict in interfaith child custody disputes: a legal discourse in malaysian courts
publisher	International Institute of Islamic Civilisation and Malay World (ISTAC)
publishDate	2019
url	http://irep.iium.edu.my/73004/ http://irep.iium.edu.my/73004/ http://irep.iium.edu.my/73004/7/73004%20JURISDICTIONAL%20CONFLICT.pdf
first_indexed	2023-09-18T21:43:31Z
last_indexed	2023-09-18T21:43:31Z
_version_	1777413297632444416

Jurisdictional conflict in interfaith child custody disputes: a legal discourse in Malaysian courts

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