MAL individual case presentation slideee

syariah civil case

1. AZIZAH BTE SHAIK ISMAIL & ANOR V FATIMAH
BTE SHAIK ISMAIL & ANOR [2002] 6 MLJ 589
Source: LexisNexis
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2. USIM 2024
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APPLICANTS
THE JUDGE
RESPONDENTS
AZIZAH BTE SHAIK ISMAIL
& ANOR
SU GEOK YIAM
FATIMAH BTE SHAIK
ISMAIL & ANOR

3. Initial Arrangement: The respondents (aunt and uncle) began caring for the child
temporarily due to the mother's illness.
Child's Upbringing: The applicants grew concerned about the child's academic
performance, lack of discipline, and involvement in the respondents' business. They
allege the child was not being raised according to their values.
Custody Order: The Syariah Court granted custody to the applicants until the child
turned 16.
Breach of Order: The respondents refused to comply, claiming the child didn't want to
return and the Syariah Court declined to hold them in contempt.
Applicants' Concerns: The applicants are worried about the child's future, particularly
her education, and believe the respondents are hindering her potential. They allege
the respondents are influencing the child against them.
Respondents' Position: While not explicitly stated in the provided text, their actions
suggest they believe they are acting in the child's best interests and that she prefers
to remain in their care.
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FACTS OF THE CASE

4. The applicants, Azizah and Kamaldin, contended that they were entitled to the
custody of their child. They argued that she could provide a better environment for
the child's upbringing and the welfare of the child would be best served under her
care.
The Applicants have several concerns:
Education: They believe the Respondents are not prioritizing the child's education
and are instead using her for labor in their shop.
Character Development: They claim the Respondents are not instilling proper
manners and respect for elders in the child.
Future Prospects: The Applicants fear the child will not have the opportunity to pursue
higher education if she remains with the Respondents.
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3CONFLICT OF THE PARTIES

5. whether it is for the good of
the child for this court to order
the child to return to and stay
with the applicants.
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ISSUES OF THE CASE
whether the court can order
that the child be brought
before this court for the
hearing of the applicants’
application.

6. Article 74 of the Federal Constitution1.
Article 121 (1a) of the Federal Constitution2.
Section 365 of Criminal Procedure Code3.
Section 48 (2)(b)(iii) of the Administration of Islamic Religious Affairs Enactment 1993 Pulau
Pinang
4.
Section 50(1) of the Administration of Islamic Religious Affairs Enactment 1993 Pulau Pinang5.
Part IV of the Administration of Islamic Religious Affairs Enactment 1993 Pulau Pinang6.
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RELEVANT LAW PRINCIPLES

7. i) The second order by the Syariah subordinate court was a valid and subsisting order
which had overtaken the custody order. The second order could not be challenged in a
civil court by virtue of art 121(1A) of the Federal Constitution.
ii) The effect of the second order was that the applicants’ sole recourse was to appeal to
the Syariah High Court against the second order. The High Court could not go into the
merits of the second order because the High Court had no jurisdiction to review it but
instead had to accept it as a valid and subsisting order.
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DECISION OF THE COURT

8. iii) The instant application for a writ of habeas corpus was not mounted on the ground
that the child was illegally or improperly detained in the respondents’ private custody.
The objective of the application was to seek an order of the High Court that the child be
produced for the purposes of the hearing of the application on its merits and thereafter,
for the High Court to order the child to be returned to and be brought up by the
applicants in the event that the applicants succeed in satisfying the High Court that
such an order would be in the best interests of the child. The High Court had no
jurisdiction to grant the order sought because the writ of habeas corpus could only be
granted to order that the child be set at liberty if the child was illegally or improperly
detained. It was for the Syariah court to determine whether it was in the best interests of
the child that she be returned
to the applicants
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DECISION OF THE COURT

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COURT LEGAL REASONING
The custody order has been superseded
by the Syariah subordinate court's ruling,
which dismissed the applicants' attempt
to have the respondents imprisoned for
violating the custody order. It is not subject
to challenge in a civil court under FC
article 121(1A).
The second order has the consequence of
removing the applicants' only option,
which is to appeal to the Syariah High
Court against the Syariah subordinate
court's decision, as the latter is convinced
that the kid has declined to return to the
applicants. This court lacks the authority to
evaluate the Syariah subordinate court's
order, hence it is unable to discuss its
merits. It must be regarded by this court as
a legitimate and operative order.

10. Azizah bte Shaik Ismail and Kamaldin bin Mohd Abdullah filed a legal case against Fatimah bte
Shaikh Ismail and Osman bin Abdul Hamid, seeking custody of their daughter. The daughter had
been residing with the respondents, her aunt and uncle, since infancy. Although the applicants
were initially granted custody, the respondents refused to comply with the court order, arguing
the child wished to remain in their care. The situation escalated, with accusations of parental
neglect and manipulation levied against the respondents, culminating in the applicants' pursuit
of legal action to enforce the custody order. The respondents maintain their stance, citing the
child's preference for their home and challenging the applicants' ability to provide a suitable
environment. This complex familial dispute centers on the wellbeing and future of the child, with
both sides claiming to act in her best interests.
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CONCLUSION

11. Y O U
T H A N K
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