• interim and ex-parte hadhanah

    INTERIM & EX-PARTE HADHANAH

    Threatening to bring the child outside the country or attempting to keep the child away from the other parent is a common episode in a right over custody “battle”, especially when it comes to mixed marriages. It is rather obvious that in a situation like this, both parents are not in good terms and it would be difficult (if not impossible) for both parents to negotiate the matter in an amicable manner. It would also not be fair and practical for the innocent party to wait for the actual hadhanah trial to be disposed of. The law anticipates such circumstance to occur and thus, the law provides an avenue for the innocent party to make an interim hadhanah application (temporary application) by way of ex-parte (application made by one party). Therefore, in this article we will explore further about interim and ex-parte application specifically concerning hadhanah or child custody.

     

     

    DISCUSSIONS

    In an interim hadhanah application of Siti Zubaidah Chew bt Abdullah @ Chew Yin Yin cited as [2010] JH 29/1, the honourable Court explained about ex-parte application and interim hadhanah rather explicitly. The Syariah High Court in that case had quoted an oft-cited hadeeth pertaining to one of the Judge’s roles in Islam which is to be impartial by opportuning both parties to present their case before the Judge comes to a decision. The hadeeth which was narrated by Abu Dawood stated that Saidina Ali said to the Prophet, to the effect:

    Ya Rasulullah, you have sent me to Yemen as a Qadi whilst I am still young and I have no knowledge concerning adjudication. Rasulullah said: Verily Allah will grant His guidance (hidayah) to your heart and will keep your tongue true. If there come to you two people who are quarrelling in front of you, do not pass judgment until you have heard the second party just as you have heard the first party, for it is best for you to have a clear idea before passing a judgment

    The above highlights the importance to decide a case inter partes (between the parties), which means a case must be decided in the presence and upon considering the arguments of both parties. However, the Court in the above case underlines that there are instances that the hukum syarak allows a case to be heard ex-parte based on the principle of dharurah (state of urgency) and this makes up the exception to the general rule. Whereas, Imam Jalaluddin Abdul Rahman in his kitab Ashbah wa al-Nazair fi Qawaid al-Fiqhiyyah stated that الضرر يزال (“injury must be removed”). Thus, the Court opined that in times of difficulty (masyaqqah), in order to alleviate and eliminate the “injury”, the general rule of deciding a case by way of inter parte can be dispensed with, resulting an ex-parte proceeding to be held permissible (harus).

     

     

    INTERIM HADHANAH

    Apart from hukum syarak, the Court had also referred to the provisions in the statute concerning interim and ex-parte orders. Section 201 of the Syariah Court Civil Procedure (Federal Territories) Act 1998 which is in pari materia with the one in the Negeri Sembilan Enactment as evidenced in the above-cited case, states:

     

    (1) Subject to the Islamic Family Law (Federal Territories) Act 1984 [Act 303], if the Court is satisfied, on the application of any party for the hadhanah of a child in any cause or matter, that the circumstances require an interim order to be made for the hadhanah of that child, the Court may make such order which shall have immediate effect and shall continue to be in force until the Court has made a decision on the cause or matter. 

    (2) An application under this section shall not be made before the action has begun except in a case of urgency which in the interest of justice or for the protection of the applicant or the child it appears that the immediate intervention of the Court is necessary.

     

    In elaborating the above provision, the Court stated that based on subsection (1) to the above section, an interim order may be granted by the Court should the circumstances necessitate for an interim hadhanah order to be made, to the satisfaction of the Court, and such interim order would be enforceable immediately until the Court makes a permanent order concerning the matter.

    In a more recent decided case of Nurul Wahida bt Mohd Nor v Shamsul Anwar bin Mohd Radzi [2017] 1 SHLR 32, the learned Shariah High Court Judge had went further in elaborating on the operation of section 201(1). The learned Judge stated that the phrase “on the application of any party for the hadhanah of a child in any cause or matter” means that before an application for an interim order can be made under the section, the parent hadhanah case needs to be filed first. This is because, the order under the section will only be enforceable until the Court decides on the cause or the matter. And the phrase “on the cause or matter” is definitely referring to a recurring hadhanah case, i.e. the parent case. However, as subsection (2) explicitly states, in a case of urgency, even if the parent case is yet to be filed, an application for interim order as to hadhanah can still be made. However, by practice, the parent case needs to be filed within fourteen (14) days from the date of the application.

    From the above, it can be understood that an interim hadhanah application in simple terms means an application for a temporary child custody order, pending the full disposal of the case. 

     

     

    EX-PARTE HADHANAH

    In respect of interim order by way of ex-parte, subsection (3) of section 201 provides:

    (3) Where the applicant is the plaintiff and the case is one of urgency, such application may be made ex parte and shall be supported by an affidavit and that affidavit shall contain a clear and concise statement-

    (a) of the facts giving rise to the claims against the defendant in the proceedings;
    (b) of the facts giving rise to the claim for an interim order;
    (c) of the fact relied on as justifying the application being made ex parte;

    (d) of any facts known to the applicant which might lead the Court not to grant an interim order;
    (e) of whether any previous similar ex parte application has been made to any other Judge and, if so, the order made in that previous application; and
    (f) of the precise relief sought.

     

    In the case of Siti Zubaidah Chew bt Abdullah (supra), the Court held that the above subsection connotes that an application for an interim order may be made by way of ex-parte which must be supported with an affidavit. And as the subsection clearly states, there must be a state of urgency which warrants for a proceeding by way of ex-parte to be conducted. Practice Direction No. 5 of 2016 which was published by the Department of Syariah Judiciary Malaysia (JKSM) has laid down guidelines on ex-parte hadhanah proceeding. The guidelines provide for the following:

     

    • Filing of application

    – If the parent case has been filed, only the Plaintiff has the right to apply for interim application by way of ex-parte. However, an inter parte application may be filed by both parties.

    – The document(s) for the filing of the ex-parte application is/are per required by the Syariah Court Civil Procedure Act, together with an immediate declaration (perakuan segera), draft ex-parte order as in Form 1 of the Practice Direction.

    – The affidavit to support the application must also contain an undertaking of the applicant to pay damages to the respondent for any injury sustained, should the ex-parte application is later found out by the Court, not to be conferred.

    • Factors to be considered by the Court

    – An ex-parte order as to hadhanah may be conferred by the Court if it serves to stop and avoid harm upon the child in respect of his religion, life, body, property, intellect and/or welfare

      An ex-parte hadhanah order may be granted upon the satisfaction of the applicant to prove his case up to the standard of zann al-ghalib, which means the evidence must be based on conjecture (zann) which is close to certainty (yaqeen).

     

    There are several cases which illustrate “the state of urgency” that necessitates for an ex-parte order to be made, to the satisfaction of the Court. One of them is the case of Badrul Hisham Mohd Ramli v Hayati Nazir (2008) JH 25/1, 55, whereby the Court held that “Among the reason for the special urgency is the child was taken out of the country or took away out of the country. And that must have reasons and for example there is strong evidence that an airplane ticket was already booked, the airplane ticket can be a reason. Likewise, if there is evidence and reason that these children were converted to another religion from Islam to another religion…

    To sum up, it can be understood that an ex-parte application or application by a single party can be made in circumstances of urgency, and that includes an ex-parte application for hadhanah as discussed above. There is definitely no hard and fast rule on what amounts to a “state of urgency”. It is thus for the Court to decide justly based on the facts and circumstances of each case.  

     

     

    CONCLUSION

    In conclusion, the issue of child custody is best settled amicably between both husband and wife. However, it cannot be denied that at times things are not as easy nor as pleasant as we wished them to be. Hence why, it is important for both husband and wife to have legal awareness on the legal recourse that may be opted for in a situation which necessitates for an interim hadhanah application to be made by way of ex-parte.

    It is also important to note that although there should be no appeal against an interim order as stated in section 198 of the Syariah Court Civil Procedure (Federal Territories) Act 1998, however, by virtue of section 194 of the Act, an order made ex-parte may be set aside. Therefore, it is important to seek for legal advice and to seek for legal assistance to know how to deal your case efficiently either by seeking for a legal aid or to engage a professional lawyer.

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