Physical, moral and emotional well-being of the child.
By virtue of Section 82 of the IFLA, the Syariah Court will also take into account the physical, moral and emotional well-being of the child. Section 82(c) of the IFLA provides that one who is entrusted with hadhanah must be capable of giving the child the care, love, and affection that the child may need. Further, Section 82(e) of the IFLA states that the hadhinah or custodian should live in a conducive environment in order to protect the child from any harm morally or physically.
These factors have been emphasized by the Syariah court in several decided cases. In Nong Azman Shah v. Ahood Thamar Badei [1997] 11 JH (II) 165 the court dismissed the mother’s hadhanah application, who was an Iraqi, on the ground that Malaysia is a safer place to bring up the child compared to Iraq. In Wan Abdul Aziz v. Siti Aishah (1977) 1 JH 50 the child had stayed with the father and the paternal grandmother for about one and half year prior to the claim made by the mother. The court dismissed the…show more content… Originally, the actual custody was given to the biological mother when the child was two years old. Later, the mother gave the child to her sister because she remarried. Knowing the fact that his ex-wife had remarried, the father applied to obtain the custody when the child was four years old and was rejected but then he appealed. However, the appeal could not be heard until the child had attained seven years old. When the child was nine years old, the court interviewed the child and he willingly expressed his preference to stay with his maternal aunt. The court also took into account the capability of the maternal aunt in taking care of the child and it was proven that she was more capable compared to the father. On that ground, the court dismissed the father’s