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2021 MarsdenLR 4209
SYARIAH APPEAL BOARD SINGAPORE
DH – Appellant
Versus
DI – Respondent
Syariah Appeal Board Singapore
The paramount consideration in custody disputes is the welfare of the child, transcending other grounds such as parental infidelity.
Headnote:(A) Islamic Law – Divorce – Hadhanah (child custody) – Court confirmed the talak by the Husband on the first hearing, but addressed the welfare of the children as paramount in determining care and control. Based on the Wife’s stable employment and the children's preference, the Wife is awarded care and control of the children. (Paras 1, 5, 8)
(B) Custody – The main principle in custody disputes is the welfare and interest of the child which must be considered above all other legal rights. (Paras 5, 10)
Facts of the case: The Husband cited the Wife's infidelity as grounds for divorce, while the Wife attributed the breakdown to the Husband's abuse. Both contested care arrangements for their three children during divorce proceedings.
Findings of Court: The court affirms that the Wife is to be granted care and control of the children due to stable employment and positive welfare considerations. The Husband is granted access arrangements.
Issues: The main questions were regarding the appropriate care and control arrangement for the children and the principles guiding custody decisions under Islamic law.
Ratio Decidendi: The Court highlighted that any allegations against the Wife need to be substantiated and that the children's welfare, including the older child's wish to be with their mother, should steer custody decisions. The Court also indicated the importance of assessing parental support networks in care arrangements.
Result: The Wife is awarded care and control of the children, with the Husband granted access rights.
JUDGMENT
Introduction
[1] This matter concerns the plaintiff-husband's ("the Husband") application to divorce the defendant-wife ("the Wife"). The first hearing was held on the 2 February 2020. The Husband proceeded to pronounce the talak on that date and having been convinced that there was no previous talak, Court confirmed the talak and recorded it as the first talak between parties. Based on both counsels' submissions on the ancillary matters, the Court had given leave for parties to file Supplemental Affidavits to include further details on a Batam property. The second hearing was held on 24 July 2020. After hearing further submissions from the counsels, Court made its final orders on the same day. The Husband filed a notice of his intention to appeal against parts of the order related to the care and control of, and access, to the children.
Marriage Of Parties
[2] The parties were married on 14 February 2009 in Batam, Indonesia. The matrimonial flat was purchased in 2011 in the Husband's sole name and Wife as occupier. They are blessed with three children, the oldest a 9-year-old boy and twin daughters aged 6. The Husband cited the Wife's infidelity and her failure as a Muslim wife as the grounds of divorce. The Wife denied this and cited the breakdown of marriage as the Husband's abuse towards her. Both agreed that she had commenced divorce proceedings in 2016 but withdrew it sometime in 2017.
Custody And Care And Control Of Child
[3] Both parties' proposed parenting plans are consistent in that at the time of the hearing they still lived together with the children and a domestic helper. Both asked to be granted care and control of the children. In the Husband's skeletal submissions, his counsel argued that it is not necessary for a child below discerning age to be under the care and control of the mother, and that it is"... berhak kepada seorang penjaga yang lebih baik [translation: "... incumbent on a parent who can care for the child better"]. He also cited a principle in the Kitab Kifayatul Akhyar referred to in the case of Nong Azman v. Ahood Thamar Badei [1997] 11 JH (II) 165. This case is not a case heard by the Singapore Syariah Court nor was there mention of the Court it was heard in or the case's full citation. Similarly, the full judgment was not included in the submissions. Nonetheless, this Court agrees that the list of the criteria cited is one of the accepted principles in the consideration of Hadhanah in Muslim law. The Husband's counsel argued that the Wife lacks two of the prerequisites. The Wife's counsel replied, distinguishing between that case and the current case. That Court granted care and control to the father because the mother in that case was staying in Kuwait, a war-torn country at that time. It also considered the status quo of the children's schooling arrangement. The Mother's lack of the prerequisites in the listed criteria cannot be taken as a stand-alone criterion without further examining the children's interest and welfare.
[4] The Wife's counsel relied on Appeal No 28 of 2010 in her oral replies and submission. This is the published case of AE v. AF [2011] 6 SSAR 65. The counsel argued that in AE v. AF , even when the Court found the wife to be nusyuz, she was still granted care and control of the children, as the overarching principle is the welfare of the children. She submitted that the Husband had failed to show to Court that there was a direct or causal relationship between the Wife's alleged acts of nusyuz and her capability to care for the children. She further argued that the Wife has been the main caregiver of the children, hence it is in their best interest for her to continue to be their caregiver.
[5] Court is in agreement with both parties' arguments that the welfare and interests of the child is the main principle in determining the care and control of children. Court also agrees with the Wife's counsel's agreement that any act of nusyuz does not disentitle
