Tuntutan Hadanah di Mahkamah Syariah di Zon Utara Malaysia: analisis permasalahan tatacara Mal serta penyelesaiannya

• Main Author: Nadia Murshida, Azzis
• Format: Thesis
• Language: English; English
• Published: 2021
• Subjects: K Law (General)
• Online Access: https://etd.uum.edu.my/9710/1/s900565_01.pdf; https://etd.uum.edu.my/9710/2/s900565_02.pdf; https://etd.uum.edu.my/9710/

Hadanah procedural law in Syariah Court that was influenced by civil law at the beginning of its legislation has improved in parallel with the legal development in Syariah Court. Significant changes in hadanah provisions that has been implemented in the scope of Islamic law administration, Islamic family law and mal procedural law, aimed to attain maqasid shari’ah in Syariah law and judiciary. Although hadanah cases are resolved according to legal provisions, it did not manifest the realization of maslahah of religion, life, intellect, lineage and property of a child. As hadanah principle is unclearly stated in the substantive law, this leads to confusion on the application of procedure and case proceedings. Thus, the application of maslahah and maqasid shari’ah seems to be inconsistent. With these uncertainties, there are possibility to review hadanah provisions in Syariah Court, evaluate its weaknesses and find solutions. The objective of this study is to analyse legal provisions of substantive and mal procedural of hadanah in Syariah Court. This study identifies the development and inadequacy of substantive and mal procedural law and hadanah proceedings in Syariah Court. This study suggests improvement and amendments to the laws and hadanah case management in Syariah Court. By confining this research to the northern zone states of Malaysia that is Kedah, Perak, Pulau Pinang and Perlis, the data of this study were obtained through library research and interviews conducted with eleven respondents. The study indicated that hadanah cases has been improvised when trials were held in Syariah High Court without Civil Courts interference in terms os reference and appeal process. Although the court hierarchy and Jabatan Kehakiman Syariah Malaysia’s Gunasama Scheme differs between the researched states, no legal impediment occurs. The study found that substantive law requires improvements concerning definition of the main basic terms and rights of those who are related in child custody. This research reveals that ineffectiveness of Majlis Sulh, non-compliance of court documents as per Practice Direction, omission of summary procedures contained in the enactment and inexistent of proper guidelines such as child interviews impacted the procedural rules and hadanah proceedings that should complied with siyasah syar’iyyah. Thus, this study suggests substantive and procedural law amendments, strengthen sulh procedure and reinforce hadanah proceedings in Syariah Court.