The Perlis Fatwa Committee has made a landmark edict to grant custody to the parent most able to raise a child, regardless of religion.
State mufti Mohd Asri Zainul Abidin said this could signal a turning point in child custody cases in the syariah court, especially in cases where a parent seeks custody of the child upon converting to Islam.
He said the fatwa committee had found it unfair to grant custody solely based on religion, as the child's overall welfare and interest were paramount.
"The overall welfare of the child includes his or her physical, moral and emotional needs. The parent who is more able to provide these needs should get custody, whether they are Muslim or not,” Asri is quoted as saying in The Star today.
"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,” Asri added.
Mothers will get automatic custody of children still being breastfed.
Asri said with the new edict, the syariah court needs to judge which parent is more suitable by studying their background, lifestyle and also, the one the child preferred.
'Children should not be forcibly converted'
The new ruling also states that children should not be forcibly converted to Islam, but the religion should be introduced to them regardless of who gets custody.
“The common case these days is that both parents are non-Muslims, and then one of them converts to Islam. By going to the syariah court, 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 the hadith,” Asri said.
He also said that the new Perlis edict was meant to let converts know that it is not a sin to offer custody to a non-Muslim parent, especially if they are better equipped to care for the child.
Custody battles between a non-Muslim parent and their converted spouses can be messy, as seen in the Indira Gandhi ( photo ) and S Deepa cases.
Indira's husband had unilaterally converted their three children after he converting to Islam.
The husband, K Pathmanathan @ Muhammad Ridhuan Abdullah, had also taken his son away from the mother, by force, when he was 11 months old, compelling Indira to seek a court order to compel police to find him.
In Deepa's case, the civil courts granted custody of her children to the her, while the syariah court granted custody to her now Muslim husband, leading to a protracted legal battle for custody of the two children.