Section 88
Section 88
(1)
Subject to section 89, the mother shall be the most entitled person to custody of her children who are not mumaiyiz during her marriage and after the dissolution of the marriage.
(2)
Where the Court is of the opinion that the mother has lost her entitlement under Hukum Syara’ to the right to custody of her children, the right shall, subject to subsection (3), pass to one of the persons in the following order of preference —
(a)
the maternal grandmother and ascendants;
(b)
the paternal grandmother and ascendants;
(c)
the sister of the same parents;
(d)
the sister of the same father;
(e)
the sister of the same mother;
(f)
the maternal aunt of the same parents;
(g)
the maternal aunt of the same father;
(h)
the maternal aunt of the same mother;
(i)
the daughter of the sister;
(j)
the daughter of the brother;
(k)
the paternal aunt;
Islamic Family Law
B.L.R.0. 6/2012 67
(l)
the aunt of the father that is the sister of the child’s grandfather, and if there are no guardians (hadinah) as stated above, the right to custody passes to the following male persons —
(a)
the father;
(b)
the grandfather that is the father of the child’s father and ascendants;
(c)
the brother and descendants;
(d)
the uncle and descendants;
(e)
and onwards in the order of the wali for the solemnisation of marriage.
(3)
No man shall be entitled to take care of a female child unless he is a mahram, that is where he is related to the child in such manner that he is prohibited from marrying her.
(4)
Subject to sections 91 and 93, if there are a number of persons of the same ancestry or degree, all equally qualified and willing to take care the child, the custody shall be entrusted to the most virtuous person who shows the most love to the child and if all are equally virtuous, the oldest among them shall have the right to be given preference.
Qualifications necessary for custody.