Cassation
No. 817 of 2021 - Personal Status
Court
Panel: Chaired by Mr. Judge Falah Shaye’ Al-Hajri, Chief Judge of the
Circuit, accompanied by Messrs. Judges: Jum’a Ibrahim Muhammad Al-Otaibi
and Al-Tayeb Abdul Ghafour Abdul Wahab, serving as counsellors.
(1-3)
Custody “Definition of Custody: Its Conditions: The Judge’s
Discretionary Authority Therein” “The Right to Custody”.
Ruling “Deficiencies in Reasoning: Error in Understanding Reality and
Assessing Evidence.”
(1)
Custody: Understanding its Nature. Custody, is viewed as a collective duty and
initially recognised as the prerogative of the mother, contingent upon her
demonstration of suitability for this responsibility. The right of custody for
the child is initially established for the mother and then for female mahrams.
Priority is given to whoever represents the mother over whoever represents the
father, taking into consideration the closest of both sides (excluding the
father) in the specified order. The custodian shall meet specific conditions. If
an individual proves themselves unreliable in safeguarding their own integrity
and honour, they are unlikely to be trusted in matters involving others.
Protection of the child's interests is at the judge's discretion. The reason for
that. Conflict with cases of necessity in Islamic Sharia, including the right to
guardianship in matters other than those related to serving the child. Rests
upon the guardian. The reason for that. Absence of conflict. Women's custody
ends when the male child reaches eleven and the female reaches thirteen, with
possible extensions by court decision for the child's benefit.
(2)
Custody related to three rights. Custody intertwines with the rights of the
father, the custodian, and the child in custody. The child in custody is
prioritised in care based on specific grounds. Estimating the child’s best
interests lies with the trial court.
(3)
The trial court's erred in understanding the concept of custody under law and
Sharia, leading to the dismissal of substantiated evidence highlighting the
respondent's incapacity for custody. This has a profound impact on the lives,
interests, and safety of the two daughters, particularly given the custodian's
marriage to a foreigner. The appellant, rightfully asserting his position as the
father, is deserving of custody after the mother. The court's misapprehension of
reality, inadequate assessment of evidence, deficient reasoning, and
infringement upon Islamic Sharia and law necessitate a reversal of the ruling.
Consequently, custody shall be transferred to the father, and the provision of
alimony shall be abated.
The
tenets enshrined in the provisions of Islamic Sharia law, and its counterparts
in secular law, affirm that the essence of custody is grounded in the
protection, upbringing, and care of the child, shielding them from potential
harm and ensuring their well-being. This responsibility extends to raising the
child in accordance with the commands of the Creator, exalted be His Glory, as
the child is inherently vulnerable and dependent, requiring nurturing until they
attain the ability to independently navigate life. The responsibility mentioned
is viewed as a collective duty, wherein once one party fulfills it, others are
thereby relieved. Numerous verses emphasise the importance of treating parents
and children with kindness and gratitude, as mentioned in the decisive
revelation: "And We have enjoined upon man to be good to his parents. His mother
carried him, [increasing her] in weakness upon weakness, and his weaning is in
two years. Be grateful to Me and to your parents; to Me is the [final]
destination." (Quran 31:14) "Mothers may breastfeed their children two complete
years for whoever wishes to complete the nursing [period]. Upon the father is
the mothers' provision and their clothing according to what is acceptable. No
person is charged with more than his capacity. No mother should be harmed
through her child, and no father through his child. And upon the [father's] heir
is [a duty] like that [of the father]. And if they both desire weaning through
mutual consent from both of them and consultation, there is no blame upon either
of them. And if you wish to have your children nursed by a substitute, there is
no blame upon you as long as you give payment according to what is acceptable.
And fear Allah and know that Allah is Seeing of what you do." (Quran 2:233) The
Quranic verses underscore the importance of parental responsibilities, with
specific guidance on breastfeeding duration and the obligation to provide for
and clothe children with kindness. The Prophetic Sunnah further supports the
child's right to care, particularly in cases of divorce or separation. The
Messenger of God, peace be upon him, affirmed a woman's entitlement to her
child's custody, emphasising her priority unless she chooses to remarry.
Children, being vulnerable and in need of special care, require the active
involvement of both parents in shaping their personalities. The absence of
either parent due to death or dissolution of the marital covenant can have
negative repercussions on the child's stability and proper upbringing. To
address this, a legislative framework is crucial, ensuring the rights of the
child in custody are clearly defined and protected.
Custody
is initially recognised as the prerogative of the mother, bestowed upon her as
the primary entitlement to her child, contingent upon her demonstration of
suitability for this responsibility. An illustrative account involving the
Rightly Guided Caliph Omar bin Al-Khattab highlights the recognition of a
mother's profound connection with her child. In this historical instance, Caliph
Abu Bakr Al-Siddiq adjudicated in favour of allowing the child to remain with
the mother, emphasising the unique bond and care she provides. Judge Abu Bakr
Muhammad bin Asim Al-Andalusi Al-Gharnati further elaborates on the
appropriateness of entrusting custody to women due to their inherent compassion.
Jurists have established a framework wherein custody is typically assigned to
the mother, while guardianship over aspects of life and finances is granted to
the father or, in certain circumstances, the paternal the paternal grandfather
following agnatic lineage, aligning with the perspective advocated by Sheikh
Khalil.
The
safeguarding of the interests of the child in custody is placed under the
discretionary authority of the judge. This is imperative due to the gravity of
the custodial responsibility, as it encompasses the preservation of a vulnerable
individual undergoing the crucial stages of formation and development. Such a
person is inherently in need of utmost care. Consequently, specific conditions
must be met by the custodian to qualify for the entitlement to custody of the
child and to have the legal establishment of such custody.
Custody
is a right with a primary preference for women. However, there are instances
where men may be granted custody, particularly when the female custodian is
deemed unsuitable to fulfill the responsibilities associated with
custody.
The
custodian is typically mandated to be an adult, meaning of legal age, possessing
integrity and honesty. It is crucial that the custodian ensures the preservation
of the Islamic identity of the Muslim child under their care. The custodial
environment should be conducive to the consolidation of the child's Islamic
identity. These conditions, as articulated by jurists and affirmed by the
legislator, impose a significant burden on the judiciary. The judicial system is
tasked with scrutinizing factors that may render the custodian unfit for the
responsibility of custody, including their trustworthiness and their capacity to
adequately nurture and maintain the child in custody.
The
judiciary shoulders a significant responsibility in verifying the fulfillment of
the aforementioned conditions by the maternal custody applicant. This involves
conducting thorough investigations to ensure the well-being and safety of the
child in custody. The Supreme Court ruling underscores that the "interest of the
child in custody" serves as the essential guiding principle. Custody is deemed
to be in place whenever the child's interest is present, and conversely, it is
forfeited when the interest is absent.
The
fundamental principle is to prioritise keeping the child with their mother for
the longest possible duration. This acknowledgment is grounded in the
recognition that a mother's tenderness and maternal instinct are unparalleled.
While this rule is generally steadfast, it can be set aside when the child's
best interests are at stake. In such cases, the judge possesses discretionary
authority and must consider the child's welfare, particularly when intervention
becomes necessary, guided by jurisprudential principles such as "No harm shall
be done, nor harm done in return," "Harm shall be made good," and "Customary
usage is the determining factor."
The
significance of custody in Islamic Sharia is underscored by its role as a
reflection of the legal system's concern for childhood. During childhood,
individuals are profoundly dependent on someone to nurture and prepare them for
life. Importantly, custody should not contradict the guardian's right to
guardianship over the person. As outlined in the legal text on custody, the
obligation to undertake all necessary measures related to the well-being of the
child in custody, falling under guardianship over the person, rests first upon
the father and subsequently upon other guardians, such as the paternal
grandfather. This ensures that the right to custody aligns harmoniously with the
right to guardianship. This approach is rooted in fulfilling the care emphasised
by the Prophet Muhammad, peace be upon him, who stated: "Each of you is a
shepherd and each of you is responsible for his flock, and the woman is a
shepherd in her husband’s house and responsible for her flock." In
instances where the custodian and the guardian of the child disagree on matters
beyond the child's service, the authority is deferred to the guardian. This may
include decisions related to the child's profession, specific type of education,
or efforts to shield the child from negative influences. This approach prevents
conflicts between the custodian and the guardian over the child's well-being
during the custody period. The custodian must meet specific conditions,
including:
1-
Having sound judgment;
4-
Demonstrating the ability to raise, maintain, and care for the
child;
5-
Being free from dangerous infectious diseases; and
6-
Not having a previous conviction for a crime involving turpitude.
If
the custodian is a man, it is required that he be accompanied by a suitable
woman to oversee the upbringing of the child in custody. According to Article
144 of the Personal Status Law, if the custodian is a woman, she must not be
married to a husband foreign to the child with whom she has consummated the
marriage, unless the court determines otherwise for the benefit of the child in
custody. The right of custody for the child is initially established for the
mother and then for female mahrams. Priority is given to whoever represents the
mother over whoever represents the father, taking into consideration the closest
of both sides (excluding the father) in the specified order. The judge, when
making this determination, must consider the best interests of the child in
custody. The order of priority for custodianship is as follows:
c.
The mother's mother, even if she is elderly
d.
The father's mother, even if she is elderly
e.
Sisters, with priority given to the real sister, then the mother's sister, then
the father's sister
g.
The mother’s sister’s daughter
h.
Aunts, in order of priority among sisters
i.
The father’s sister’s daughter
j.
The father’s brother’s daughter, in order of priority among
sisters
k.
Aunts in the aforementioned order
l.
The mother’s aunts in the aforementioned order
m.
The father’s aunts in the aforementioned order
n.
The mother’s aunts in the aforementioned order
o.
The father’s aunts in the aforementioned order
If
eligible female custodians are unavailable, custody transfers to male relatives
based on the order of inheritance eligibility, with precedence given to the
paternal grandfather over brothers. In the absence of these relatives, custody
shifts to male mahrams (non-agnates) in a specified order: maternal grandfather,
maternal brother, maternal brother's son, maternal paternal uncle, and maternal
uncles. Should the rightful custodian, whether a woman or a man, rejects
custody, the right passes to the next eligible person. The judge informs the
chosen custodian, and if refusal or non-response occurs within fifteen days, the
right passes to the subsequent individual. In cases of gender difference, only
mahram relatives are entitled to custody. Both the mother and father retain the
right to request custody if a dispute arises, even if they are still married.
The judge decides based on the children's best interests. If the custodian
becomes physically incapacitated, the right to custody is forfeited. In
scenarios where multiple individuals have an equal right to custody, the judge
selects the most suitable caregiver for the child. Women's custody typically
ends when males reach eleven years and females reach thirteen years, unless the
court decides to extend this age in the child's interest, until puberty or
marriage. However, custody continues for insane or terminally ill children if
their interests necessitate it. 9- In Sharia and law, custody involves the
rights of the father, custodian, and child. The child's right takes precedence,
and if it is in the child's best interest to stay with the father or another
person, custody is granted accordingly. Sharia emphasises the protection of the
child's rights over the custodians' rights.
10-
Determining the child's best interest in custody matters is deemed a factual
consideration falling within the purview of the trial court, without further
review, provided that its decision is based in valid and sufficient grounds
while duly considering the presented evidence.
In
light of the foregoing, the contested judgment failed to comprehensively
consider the evidence attesting to the respondent's incapacity for custody and
her inability to nurture, support, and care for the two daughters in question.
This includes the appellant's substantiated proof of her unsuitability for
custody, highlighting her disqualification and incapability to fulfill custodial
responsibilities post her marriage to a foreigner and given the daughters' age.
Furthermore, the appellant, being the father, asserts a stronger claim to
custody following the forfeiture of maternal custody, supported by the presence
of competent female caregivers for his daughters [Names]. The contested decision
overlooked the adverse impact on the well-being and safety of the daughters
[Names] by entrusting custody to the respondent despite establishing her
unsuitability due to marriage to a foreigner. Such oversight is detrimental to
their normal lives, especially considering the father's rightful claim to
custody after the mother, as he holds responsibility for their affairs and
well-being. In failing to recognise these crucial aspects, the ruling
misconstrued the reality, misjudged the evidence and the best interests of the
daughters, and exhibited serious deficiencies in reasoning. Consequently, this
court is compelled to reverse the decision, as it contravenes the tenets of
Islamic Sharia and established law. Accordingly, custody is to be transferred,
as mandated by Sharia and legal principles, to the appellant father, with the
forfeiture of maintenance obligations.
Whereas,
Article 13 of the Personal Status Law No. 28 of 2005 stipulates that if the
Court of Cassation reverses all or part of the contested ruling, it shall
adjudicate on the merits.
Whereas
in the facts of the case, plaintiff-appellant initiated legal proceedings
seeking the termination of the defendant-respondent's custody over the two
daughters, namely [Name] (14 years old) and [Name] (11 years old). The basis for
this action was the respondent's remarriage to a foreigner after her divorce,
occurring twice, prompting the plaintiff to petition the court for the
revocation of the defendant's custody. The defendant, in response, appeared in
court and sought dismissal of the lawsuit.
During
a session held on 21/7/2020, the court of first instance ruled in favour of the
appellant, revoking the respondent's custody of the two daughters due to her
subsequent marriages after divorce, transferring custody to the appellant
father. This decision was justified by the fulfillment of legal and legitimate
conditions for custody by the appellant father, including the presence of
suitable female caregivers, such as a mother and a wife. Additionally, the court
obligated the respondent to bear the expenses.
The
respondent contested this ruling through an appeal. However, in a session held
on 7/6/2021, the Court of Appeal annulled the initial decision, rejecting the
plaintiff's plea to withdraw custody from the appellant and compelling him to
cover the expenses. Dissatisfied with this outcome, the father appellant
subsequently filed an appeal in cassation against the ruling.
Upon
presenting the cassation to the court convened in a Council Chamber, the panel
deemed it valid for consideration and scheduled a session to hear the case, duly
notifying both parties involved.
One
of the appellant's objections to the contested ruling revolves around the
alleged misapplication of Islamic Sharia law and established legal principles.
Specifically, the ruling erroneously granted custody rights to the appellant's
mother, despite evidence proving her disqualification and incapacity to fulfill
custodial duties following her marriage to a foreigner, considering the
daughters' maturity and the expiration of her custody rights. The appellant,
being the father and demonstrating suitability after his marriage to a
foreigner, contends that he is more deserving of custody—a crucial aspect
overlooked by the contested ruling.
This
objection is asserted to have merit, since
the tenets
enshrined in the provisions of Islamic Sharia law, and its counterparts in
secular law, affirm that the essence of custody is grounded in the protection,
upbringing, and care of the child, shielding them from potential harm and
ensuring their well-being. This responsibility extends to raising the child in
accordance with the commands of the Creator, exalted be His Glory, as the child
is inherently vulnerable and dependent, requiring nurturing until they attain
the ability to independently navigate life. The responsibility mentioned is
viewed as a collective duty, wherein once one party fulfills it, others are
thereby relieved. Numerous verses emphasise the importance of treating parents
and children with kindness and gratitude, as mentioned in the decisive
revelation: "And We have enjoined upon man to be good to his parents. His mother
carried him, [increasing her] in weakness upon weakness, and his weaning is in
two years. Be grateful to Me and to your parents; to Me is the [final]
destination." (Quran 31:14) "Mothers may breastfeed their children two complete
years for whoever wishes to complete the nursing [period]. Upon the father is
the mothers' provision and their clothing according to what is acceptable. No
person is charged with more than his capacity. No mother should be harmed
through her child, and no father through his child. And upon the [father's] heir
is [a duty] like that [of the father]. And if they both desire weaning through
mutual consent from both of them and consultation, there is no blame upon either
of them. And if you wish to have your children nursed by a substitute, there is
no blame upon you as long as you give payment according to what is acceptable.
And fear Allah and know that Allah is Seeing of what you do." (Quran 2:233) The
Quranic verses underscore the importance of parental responsibilities, with
specific guidance on breastfeeding duration and the obligation to provide for
and clothe children with kindness. The Prophetic Sunnah further supports the
child's right to care, particularly in cases of divorce or separation. The
Messenger of God, peace be upon him, affirmed a woman's entitlement to her
child's custody, emphasising her priority unless she chooses to remarry.
Children, being vulnerable and in need of special care, require the active
involvement of both parents in shaping their personalities. The absence of
either parent due to death or dissolution of the marital covenant can have
negative repercussions on the child's stability and proper upbringing. To
address this, a legislative framework is crucial, ensuring the rights of the
child in custody are clearly defined and protected.Custody
is initially recognised as the prerogative of the mother, bestowed upon her as
the primary entitlement to her child, contingent upon her demonstration of
suitability for this responsibility. An illustrative account involving the
Rightly Guided Caliph Omar bin Al-Khattab highlights the recognition of a
mother's profound connection with her child. In this historical instance, Caliph
Abu Bakr Al-Siddiq adjudicated in favour of allowing the child to remain with
the mother, emphasising the unique bond and care she provides. Judge Abu Bakr
Muhammad bin Asim Al-Andalusi Al-Gharnati further elaborates on the
appropriateness of entrusting custody to women due to their inherent compassion.
Jurists have established a framework wherein custody is typically assigned to
the mother, while guardianship over aspects of life and finances is granted to
the father or, in certain circumstances, the paternal the paternal grandfather
following agnatic lineage, aligning with the perspective advocated by Sheikh
Khalil.
The
safeguarding of the interests of the child in custody is placed under the
discretionary authority of the judge. This is imperative due to the gravity of
the custodial responsibility, as it encompasses the preservation of a vulnerable
individual undergoing the crucial stages of formation and development. Such a
person is inherently in need of utmost care. Consequently, specific conditions
must be met by the custodian to qualify for the entitlement to custody of the
child and to have the legal establishment of such custody.
Custody
is a right with a primary preference for women. However, there are instances
where men may be granted custody, particularly when the female custodian is
deemed unsuitable to fulfill the responsibilities associated with
custody.
The
custodian is typically mandated to be an adult, meaning of legal age, possessing
integrity and honesty. It is crucial that the custodian ensures the preservation
of the Islamic identity of the Muslim child under their care. The custodial
environment should be conducive to the consolidation of the child's Islamic
identity. These conditions, as articulated by jurists and affirmed by the
legislator, impose a significant burden on the judiciary. The judicial system is
tasked with scrutinizing factors that may render the custodian unfit for the
responsibility of custody, including their trustworthiness and their capacity to
adequately nurture and maintain the child in custody.
The
judiciary shoulders a significant responsibility in verifying the fulfillment of
the aforementioned conditions by the maternal custody applicant. This involves
conducting thorough investigations to ensure the well-being and safety of the
child in custody. The Supreme Court ruling underscores that the "interest of the
child in custody" serves as the essential guiding principle. Custody is deemed
to be in place whenever the child's interest is present, and conversely, it is
forfeited when the interest is absent.
The
fundamental principle is to prioritise keeping the child with their mother for
the longest possible duration. This acknowledgment is grounded in the
recognition that a mother's tenderness and maternal instinct are unparalleled.
While this rule is generally steadfast, it can be set aside when the child's
best interests are at stake. In such cases, the judge possesses discretionary
authority and must consider the child's welfare, particularly when intervention
becomes necessary, guided by jurisprudential principles such as "No harm shall
be done, nor harm done in return," "Harm shall be made good," and "Customary
usage is the determining factor."
The
significance of custody in Islamic Sharia is underscored by its role as a
reflection of the legal system's concern for childhood. During childhood,
individuals are profoundly dependent on someone to nurture and prepare them for
life. Importantly, custody should not contradict the guardian's right to
guardianship over the person. As outlined in the legal text on custody,
the obligation to undertake all necessary measures related to the well-being of
the child in custody, falling under guardianship over the person, rests first
upon the father and subsequently upon other guardians, such as the paternal
grandfather. This ensures that the right to custody aligns harmoniously with the
right to guardianship. This approach is rooted in fulfilling the care emphasised
by the Prophet Muhammad, peace be upon him, who stated: "Each of you is a
shepherd and each of you is responsible for his flock, and the woman is a
shepherd in her husband’s house and responsible for her flock." In
instances where the custodian and the guardian of the child disagree on matters
beyond the child's service, the authority is deferred to the guardian. This may
include decisions related to the child's profession, specific type of education,
or efforts to shield the child from negative influences. This approach prevents
conflicts between the custodian and the guardian over the child's well-being
during the custody period. The custodian must meet specific conditions,
including:
1-
Having sound judgment;
4-
Demonstrating the ability to raise, maintain, and care for the child;
5-
Being free from dangerous infectious diseases; and
6-
Not having a previous conviction for a crime involving turpitude.
If
the custodian is a man, it is required that he be accompanied by a suitable
woman to oversee the upbringing of the child in custody. According to Article
144 of the Personal Status Law, if the custodian is a woman, she must not be
married to a husband foreign to the child with whom she has consummated the
marriage, unless the court determines otherwise for the benefit of the child in
custody. The right of custody for the child is initially established for the
mother and then for female mahrams. Priority is given to whoever represents the
mother over whoever represents the father, taking into consideration the closest
of both sides (excluding the father) in the specified order. The judge, when
making this determination, must consider the best interests of the child in
custody. The order of priority for custodianship is as follows:
c.
The mother's mother, even if she is elderly
d.
The father's mother, even if she is elderly
e.
Sisters, with priority given to the real sister, then the mother's sister, then
the father's sister
g.
The mother’s sister’s daughter
h.
Aunts, in order of priority among sisters
i.
The father’s sister’s daughter
j.
The father’s brother’s daughter, in order of priority among
sisters
k.
Aunts in the aforementioned order
l.
The mother’s aunts in the aforementioned order
m.
The father’s aunts in the aforementioned order
n.
The mother’s aunts in the aforementioned order
o.
The father’s aunts in the aforementioned order
If
eligible female custodians are unavailable, custody transfers to male relatives
based on the order of inheritance eligibility, with precedence given to the
paternal grandfather over brothers. In the absence of these relatives, custody
shifts to male mahrams (non-agnates) in a specified order: maternal grandfather,
maternal brother, maternal brother's son, maternal paternal uncle, and maternal
uncles. Should the rightful custodian, whether a woman or a man, rejects
custody, the right passes to the next eligible person. The judge informs the
chosen custodian, and if refusal or non-response occurs within fifteen days, the
right passes to the subsequent individual. In cases of gender difference, only
mahram relatives are entitled to custody. Both the mother and father retain the
right to request custody if a dispute arises, even if they are still married.
The judge decides based on the children's best interests. If the custodian
becomes physically incapacitated, the right to custody is forfeited. In
scenarios where multiple individuals have an equal right to custody, the judge
selects the most suitable caregiver for the child. Women's custody typically
ends when males reach eleven years and females reach thirteen years, unless the
court decides to extend this age in the child's interest, until puberty or
marriage. However, custody continues for insane or terminally ill children if
their interests necessitate it.
In Sharia and law,
custody involves the rights of the father, custodian, and child. The child's
right takes precedence, and if it is in the child's best interest to stay with
the father or another person, custody is granted accordingly. Sharia emphasises
the protection of the child's rights over the custodians' rights.Determining
the child's best interest in custody matters is deemed a factual consideration
falling within the purview of the trial court, without further review, provided
that its decision is based in valid and sufficient grounds while duly
considering the presented evidence.
In
light of the foregoing, the contested judgment failed to comprehensively
consider the evidence attesting to the respondent's incapacity for custody and
her inability to nurture, support, and care for the two daughters in question.
This includes the appellant's substantiated proof of her unsuitability for
custody, highlighting her disqualification and incapability to fulfill custodial
responsibilities post her marriage to a foreigner and given the daughters' age.
Furthermore, the appellant, being the father, asserts a stronger claim to
custody following the forfeiture of maternal custody, supported by the presence
of competent female caregivers for his daughters [Names]. The contested decision
overlooked the adverse impact on the well-being and safety of the daughters
[Names] by entrusting custody to the respondent despite establishing her
unsuitability due to marriage to a foreigner. Such oversight is detrimental to
their normal lives, especially considering the father's rightful claim to
custody after the mother, as he holds responsibility for their affairs and
well-being. In failing to recognise these crucial aspects, the ruling
misconstrued the reality, misjudged the evidence and the best interests of the
daughters, and exhibited serious deficiencies in reasoning. Consequently, this
court is compelled to reverse the decision, as it contravenes the tenets of
Islamic Sharia and established law. Accordingly, custody is to be transferred,
as mandated by Sharia and legal principles, to the appellant father, with the
forfeiture of maintenance obligations.
Whereas,
Article 13 of the Personal Status Law No. 28 of 2005 stipulates that if the
Court of Cassation reverses all or part of the contested ruling, it shall
adjudicate on the merits.
Based
on the foregoing...