Kinship

CUSTODY RIGHTS OF CHILDREN FOR PARENTS OF DIFFERENT RELIGIONS

For non-Muslim couples where one of them embraces Islam, the right of custody is not assessed based on the religion of the mother or father. Instead, it is entrusted to whoever is better able to guarantee the welfare of the child from the perspective of moral development, emotional wellbeing and upbringing (syafaqah). At the same time, the Muslim mother or father bears the responsibility of introducing Islam to the child. The details are as follows:

1. Children Under Breastfeeding Period
• If the child is still under the mother's bodily breastfeeding, then the right of custody is entrusted to the mother.
• If the child is not breastfed by the mother, then the right of custody is entrusted to whoever is better able to provide syafaqah, which may be referred to the background of both parties and the child's choice.

2. Children Beyond Breastfeeding Period
• If the child has passed the breastfeeding period but is not yet mumayyiz, then the right of custody is entrusted to whoever is better able to provide syafaqah, which may be referred to the background of both parties.
• If the child has reached mumayyiz, then he has the right to make his choice, unless it can be proven that his choice will bring harm to his worldly life.

3. Responsibility of Introducing Islam
The Muslim mother or father is obligated and has the right to introduce Islam to their child even though he or she does not obtain the right of custody. Thus, the opportunity to introduce Islam to the child must be given to him or her.

RULING ON CONDITIONAL TRIPLE DIVORCE (TA'LĪQ ṬALĀQ THALĀTH)

Divorce is a Sharī‘ah ruling that must not be treated lightly, because it can destroy a marriage.
With regard to conditioning the divorce of a wife with three divorces if she violates a certain agreement, there are several situations:

1. If at the time of pronouncing such conditional statement, the husband who pronounces it indeed intends to divorce his wife if she violates that agreement, then his wife is divorced with one divorce.

2. If at the time of pronouncing such conditional statement, the husband who pronounces it does not intend to divorce his wife but merely to give assurance to the other party to illustrate his abhorrence of violating that agreement just as he abhors divorcing his wife, then such conditional statement does not effect divorce and has no consequence.

3. If he is uncertain of his condition during the conditional pronouncement, whether under compulsion or willingly, in a conscious state or not, understanding the meaning of that conditional statement or not, then it reverts to the original ruling that the original marriage contract remains valid. This is based on the jurisprudential maxim:
اليقين لا يزول بالشك
Certainty is not removed by doubt.

4. If the husband expresses the conditional statement as an oath upon himself regarding what he has promised, and he subsequently violates it, then he must fulfil the expiation (kaffārah) for breaking an oath.

5. If a dispute of opinion occurs between the husband and wife regarding the status of their conditional divorce, then if they bring the case to court, the determination in the case of their dispute is decided by the Syar'ie judge.

RULING ON A WIFE LEAVING HER HUSBAND'S HOUSE DUE TO THREATS

In principle, a wife may not leave her husband's house (Bayt al-Zawjiyyah), namely the marital residence prepared by the husband, except with the husband's permission. This is because the husband is the protector, guide, and head of the family in which the wife is under his responsibility.

If the wife could be anywhere without the husband's permission, certainly household regulations would not exist and good interaction between husband and wife would not occur in its true sense.

Nevertheless, if the wife, based on strong conviction, feels that her religion, self, honour, family, or property is in a state of danger recognised by sharī'ah, has no way out, and is unable to endure if she continues to remain in the husband's house, then the wife is permitted to leave even without the husband's permission. This is after the wife truly finds that there is no solution except to leave the marital home.

Likewise, if the husband fails to fulfil his responsibility to provide safe and suitable accommodation or sufficient maintenance (nafaqah), then the wife may leave the house without obtaining the husband's permission and is not considered nushūz (disobedient) until the husband is able to fulfil his responsibility.

THE MEANING OF THE TERM "DOMICILED" (BERMASTAUTIN)

The Fatwa Committee of the State of Perlis unanimously agreed that the meaning of the term "domiciled" (bermastautin) in the Islamic Family Law Enactment of the State of Perlis 2006 is that a person is residing in the State of Perlis for more than five (5) days.