JURISDICTIONAL CONFLICT IN INTERFAITH CHILD CUSTODY DISPUTES: A LEGAL DISCOURSE IN MALAYSIAN COURTS

Abstract

Conflict of jurisdiction between the Civil and Syari’ah court is not a new issue in a dual legal system such as in Malaysia. Intense debatescalates when deciding on custodial rights after divorce in an interfaith marriage. The unilateral conversion to Islam by one party in a non-Muslim marriage has an impact on the status of the marriage and it is a legally recognised ground for divorce. Asignificant development is when the custody of a child is an issuesince both parties are no longer subject to the same set of laws andcourts for the purpose of adjudication. The current practice suggeststhat the converted parent is given preference in custodial rights bythe Syari’ah court, which is consistent with the view of the Shafi’ischool of law. The approach has caused dissatisfaction particularlyamong non-Muslim spouses who question whether the decision hasserved the best interest of the child especially in cases where thechild is very young. This paper seeks to examine the extent of thejurisdictional conflict in interfaith custody disputes in Malaysia andthe principle applied in the determination of each case. The researchmethod employed in this study is mainly a textual analysis of relevantmaterials and resolved cases relating to interfaith custody disputes.The study also adopts qualitative analysis in examining the strengthand weaknesses of the existing law in resolving the conflicts. Judicial interpretation and the judgments of the court are also analysed inidentifying relevant principles adopted by both Civil and Syari’ahcourts. The study concludes that of paramount importance is the bestinterest of the child which must be the guiding principle in decidingcustodial rights in interfaith custody disputes, besides other disputeresolution mechanisms.