1.0 INTRODUCTION
‘Domestic
violence’ can be defined as harm that comes to individuals because other person
has behaved in ways that violate social norms and mostly it happened at home[1].
Meanwhile, according to Section 2 of Domestic Violence Act 1994, domestic
violence defines as willfully, or knowingly placing, or attempting to place,
the victim in fear of physical injury against spouse, former spouse, child,
incapacitated adult or any other member of family.
This assignment examines cases on domestic violence. The focus of
this paper is on whether, and to what extent, the laws provided in Malaysia
able to protect and deter domestic violence particularly with regards to the
custody issues. Taking a pragmatic approach to
these issues at a practice level, the paper then attempts to address the
following questions: How can the Acts, (Malaysian Law and Syariah Law)
effectively identify and respond to victims of family violence? And how
about the welfare of the children, when the breakdown of marriage happened? Therefore,
this research will show thoroughly on the matter of custody of the child and
also remedies for victims when breakdown of marriage and domestic violence
happened.
Statistic
has proven that child abuse was greater compared to women abuse and it keeps
increasing by years. According to Women, Family, and Community Development
Minister, Datuk Rohani Abdul Karim, during 2012, there were 3831 children
reported to be victims, an increase of 403 cases, or 11.8%, compared to 2011[2].
This kind of abuse towards children shows that home is the most unsafe place
for them. The perpetrator might be a parent, an older brother or sister, an
aunt or uncle or even close friends of the family who have been trusted with
access to the child. Violence comes in all forms but the most common cases of
child abuse were physical, emotional and sexual abuse.
Research
has shown that the root cause of abuse began with parents who brought home
their frustrations from the work place and took it out on the children.
Financial problems plaguing a family could also cause some parents to turn
violent. These kind of abuse whether physically nor mentally could affect the
children’s life in short and long term. Victims would be traumatized for the
rest of their life if nothing is done to cure it.
For
the welfare of the victims and to prevent domestic violence from keep rising,
Domestic Violence Act 1994 was gazetted on 7th July 1994 and became
law on 1st June 1996. This Act not just to prevent domestic violence
from keep happening, but also provides remedies for victims in term of
injunction and compensation. It must be noted that the provisions of the
Domestic Violence Act 1994 must be read together with the provisions as stated
under Chapter XVI of Penal Code[3].
An action under Domestic Violence Act 1994 is taken only if there is
information relating to the commission of an offence under Penal Code relating
to domestic violence[4].
And for the welfare of the children, when the breakdown of marriage
happened, there will be issues arise on custody of the child and also remedies
for victims who is usually wife and children. This research will show
thoroughly on the matter of custody for Muslim and non-Muslim in Malaysia when
breakdown of marriage and domestic violence happened. Custody of the child will
be discussed as stated under Part VIII of Law Reform (Marriage and Divorce)
Act1976[5]
for non-Muslim cases and Part VII under Islamic Family Law (Federal
Territories) Act 1984[6]
for Muslim cases. Remedies will also become the main issues and will be
discussed thoroughly as stated under Domestic Violence Act 1994.
The main objective of providing the right of custody
when breakdown of marriage or domestic violence happened is to ensure the best interest of the child in family disputes.
Custody of child also enacted to give protection and safety for children while
providing the benefit of contact with both parents by supervising
access with non-custodial parents in specific cases. Meanwhile, Act 164 and Act
303 are being used in deciding issues of custody to increase the people's
understanding by providing information about the available options for
resolution, legal issues, child support, custody and parenting and also to
promote consensual conflict resolution methods that lead to long-lasting
resolution of issues.
2.0
DOMESTIC
VIOLENCE AND CUSTODY IN MALAYSIA FOR NON MUSLIM
The
Domestic Violence Act 1994 (DVA) has been enforced on 1996, aims to provide
protection to the victims of domestic violence. Other statutes which deal with domestic
violence are the Law Reform (Marriage and Divorce) Act 1976 (LRA), the Married
Women Act 1957 (MWA), and to some extent the Penal Code (PC) along with the
Child Act 2001. However the main Act being used for minimizing domestic
violence among Malaysians is DVA 1994. Under this Act, it must also being read
together with Penal Code[7].
The
positive aspect of the DVA is that the court may protect the spouse, former
spouse, child, incapacitated adult and other family members of the victim by
granting protection order or injunction under section 4 of the DVA, (Interim
protection order).
(1) The court
may, during the pendency of investigations relating to the commission of an
offence involving domestic violence, issue an interim protection order
prohibiting the person against whom the order is made from using domestic
violence against his or her spouse or former spouse or a child or an
incapacitated adult or any other member of the family, as the case may be, as
specified in the order.
(2) An interim
protection order shall cease to have effect upon the completion of the
investigations.
Under this
provision, the court may order prohibiting the person against whom the order is
made from using domestic violence against any person which is considered as
victim.
When
domestic violence happened whether spouse abuse or child abuse or both, that
will proof a breakdown of marriage in a family institution, court then will
grant protection order for victims which is also means separation between
perpetrator and victims. Thus here, the issue of custody of child will arise.
As stated under Section 88 of the LRA, the court has power to make order for
custody of child to any suitable person when there are exceptional
circumstances making it undesirable that the child be entrusted to either
parent. In deciding whose custody a child should be placed, the paramount
consideration shall be for the welfare of the child and have regard to the
wishes of the parents of the child and the wishes of the child themselves.
In
the case of Baheerathy A/P Arumugam v V Gunaselan A/L V Visanathan[8],
there has been abuse on the wife and the first child by the Respondent
Husband. Court has taken consideration of the wishes of parents and decided to
give the right of custody to Petitioner Wife since both parties already agreed
to that[9].
And the court also has taken consideration of the wishes of the child by
interviewing both first and second child[10].
The first child does not love her father at all and only loves her mother.
Apart from that, she would also be showing fear and started to cry
uncontrollably when thinking about her father. She has been totally alienated
from her father. Meanwhile, the second child loves both her parents since she
is just 4 years old and 6 months and has not suffered any bad experienced by
her father. Thus, it shows that the court had put the opinion of every party
into consideration. The court did not only looking at the wishes of the parents
but also interviewed both children to understand their wishes as well. Apart from
that, the court too permitted the father to have access to the second child
every Sunday at the McDonald’s restaurant under few conditions. Since the
second child has no issue with the father, it is best for the both of them to
get to see each other. This is of course, to create a good relationship between
child and father for the welfare of each parties especially child themselves.
Besides,
the court can also make protection order as stated under section 5 of the DVA
during the existence of marriage. Therefore, it allows the parties to reconcile
after the expiration of the order since the marriage is still exists. On the
other hand, under section 103 of the LRA, the court shall have power to issue
injunction against molestation only during the pending of divorce, judicial
separation or annulment.
Looking
into the details of a Malaysian case relating to domestic violence, which is
the case of Sivajothi a/p Suppiah v Kunathasan a/l Chelliah[11],
the court had granted the custody, care and control of the eldest child and to
the plaintiff [12]
and also reasonable access to the husband[13]. However, the court took into consideration
that the wife only worked two hours in the afternoons and she would have more
time to devote herself to the care and needs of the child and considered the
husband’s impulsive, violent and dangerous behaviour and him being diagnosed as
‘para suicide’ and held that it would be not be in the best interest and welfare
of the child that he should, at this
critical stage of his life be brought up in an environment that would expose
him to the risks posed by the father’s volatile temperament.
In
short, the DVA solely may not be able to cover on domestic violence issue in
Malaysia. Thus, the other statutes such as the Law Reform (Marriage and
Divorce) Act 1976 (LRA), the Married Women Act 1957 (MWA), and to some extent
the Penal Code (PC) along with the Child Act 2001 should also be referred in
order to protect the rights of the victims of domestic violence especially
relating to custody of children.
2.1 Proof of
Breakdown of marriage.
Under
principles of the English Matrimonial Causes Act 1973, the sole ground for divorce
is irretrievable breakdown of marriage. Either the husband or wife may petition
for divorce on this ground. The court hearing the petition must, so far as it
reasonably can, inquire into the facts alleged as causing or leading to
breakdown of the marriage and, if satisfied that the circumstances make it just
and reasonable to do so, make a decree for its dissolution[14].
Dissolution
of marriage is a matter of grave consequence affecting the entire family and
children in particular and the society at large. In inquiring into the facts
and circumstances alleged as causing or leading to the marriage, the court will
have regard to one or more following facts first that the respondent has
committed adultery and the petitioner finds it intolerable to live with the
respondent[15]. Adultery is a serious matrimonial lapse and
even the most liberal of societies view this as extremely damaging to a
harmonious marital relationship. Adultery in a matrimonial jurisprudence is
voluntary sexual intercourse between a married person and a person of the
opposite sex, and these two persons are not married to each other[16].
In the case of Karen Cheong Yuen Yee v Phua
Cheng Chuen[17] the
court decided that for an allegation of adultery, the standard of proof should
be beyond reasonable doubt and the burden of proof is on petitioner. Based on
the facts of the case, the court held that the petitioner had failed to prove
that the husband has committed the act of adultery.
The
second fact is that the respondent has behaved in such way that the petitioner
cannot reasonably be expected to live with the respondent. This fact closely
relates to domestic violence where behaviour of the respondent is an important
role. In the case of the Katz v Kat [18]
the court held that behaviour is something more than a mere state of
affairs or a state of mind. It is an action or conduct by one which affects the
others. In the case of Thurlow v Thurlow[19] to
determine whether the petitioner can or cannot reasonably be expected to live
with the respondent, the court must take into account the character,
personality, disposition and behaviour of the petitioner and the respondent as
alleged and established in evidence.
Under
this view, the test that can be applied to establish evidence is firstly the
reasonable man’s test or objective test. Dunn J formulated this test in Livingstone
Stallard v Livingstone Stallard[20]
as would any right thinking
person come to the conclusion that this husband has behaved in such a way that
this wife cannot be reasonably expected to live with him, taking into account
the whole world of circumstances and the characters and personalities of
parties.
Section
54(1)(b) of the LRA
necessarily poses an objective and subjective test. This is in contrast to the
phrase “the petitioner finds it intolerable to live with the respondent” in Section
54(1)(a) in determining whether the petitioner can or cannot reasonably
be expected to live with the respondent. If the petitioner and the respondent
are equally bad in similar respect, each can reasonably be expected to live
together.
Secondly,
behaviour test, where by the behaviour of both parties must be considered. In Ash v
Ash[21],
Bagnall J held that the court must not consider only the behaviour of the
respondent but also the character, personality, disposition as well as the
behaviour of the petitioner. And finally the third test is whether there is a
breach of the obligation between both parties. In the case of Pheasant
v Pheasant[22]
the petitioner alleged that the wife had not given him the spontaneous demonstrative
affection, which his nature demanded and for which he claimed that it caused
the marriage to be irretrievably broken down. It was held that there was
nothing in the wife’s behaviour that could be regarded as breach on her part.
In
domestic violence, all provisions of the Penal code relating to human body
apply to violent spouses and violent parents as much as they do to anyone else.
These include criminal assault, wrongful restraint, kidnapping, causing hurt
and causing grievous hurt. Thus, the behaviour of the respondent can be also
dealt under the Penal Code.
Meanwhile
in the case of Jayakumari v Suriya Narayanan[23],
the respondent was molesting, harassing, threatening, abusing and insulting the
wife. She left her matrimonial home with her two children and later on
petitioned for divorce. The court referred to the case of Chan Ah Moi v PhangWai Ann[24] and granted
divorce. In this case the respondent’s behaviour was cruel which caused the
breakdown of marriage. Thus, as a result of his behaviour the court granted the
custody of child to the petitioner.
The
third fact is desertion. There are two types of desertion which is simple
desertion and constructive desertion. Simple desertion is where one party
leaves the other without reasonable cause. Constructive desertion is where one
spouse virtually causes another to leave the matrimonial home or where due to
the conduct or behaviour of the respondent, that the petitioner leave the
matrimonial home.
In
the case of Bhanu Sekeramani v Nagamma[25],
a divorce petition was instituted by the husband to dissolve the marriage
solely on the ground that the husband and the wife had been living apart
continuously for more than two years before the presentation of the petition.
In dismissing the petition, the court held that it is clear from section
53(1) of the LRA that the court should have regard to the fact that the
parties to the divorce petition. But the two years of separation is only a
prima facie proof of the breakdown of marriage. It is rebuttable when the
respondent can show the two years’ separation per se does not cause or lead to
the breakdown of marriage.
3.0 Domestic Violence and custody under Syariah Law
The
Islamic law in Malaysia was not just enacted by referring to the Mohammedan
law, but it also has been blended with the local Malay customary law. This can
be seen through the Negeri Sembilan’s customary law on the matter of hadhanah
or the custody of children. Here, as the customary law had put a better right
on the mother’s side, it had provided that if a marriage comes to an end, the
custody of the child of the marriage will first goes to the mother. This is the
same as the Islamic practice where a mother will obtain the hadhanah until she is
proven to be unfit to carry out the duty.
Another
example is in the ninety-nine laws of Perak, the customary law of the state of
Perak. Provision 82 of the law discussed on the right of custody of the child
according to their age and gender. In the case of age, it had clearly follows
the rule set out by the Islamic law while as for the gender; it is purely a
customary law. Nevertheless, this provision is also included in the modern day
Islamic Family Law (Federal Territories) Act 1984, and is still in use in
dealing with the matter of custody.
Before
it comes to the question of the right of custody of the children, there must be
proof that there is breakdown of marriage taking place. In Islamic law, such
situation can usually be recognized when there is an application of divorce
through fasakh. Fasakh can either be seeking by the wife or the husband. But,
in normal cases, the wife will ask for fasakh as the husband will use his talaq
to pronounce divorce.
In
section 52 (h) of the Islamic Family Law (Federal Territories) Act 1984[26]
(Act 303), a party to the marriage can apply for dissolution of marriage
through fasakh when he or she is treated with cruelty. Cruelty here happen in a
few situations and one of it is physical assaults. In the case of Mohamed
Habibullah bin Mahmood v Faridah bte Dato Talib[27]
, a husband during the course of a Muslim marriage had battered the plaintiff
numerous times which regard as misconduct by the plaintiff which may entitle
the defendant to dissolution of her marriage through fasakh.
The
cruelty that had been experienced throughout the marriage, which led to the
dissolution of the marriage can be a good reason for the victim to plead for
the custody of the child on the ground that the other party had failed to fulfill
section 83 and 83 of the Act 303 which rendered the person to be unfit to hold
custody of the child.
In
the light of the Islamic Family Law (Federal Territories) Act 1984, section
81(1) stated that a mother has better right of hadhanah towards her infant
child. In the case of Zaliha bt Zakaria v Rahmat[28] the mother applied for the hadhanah of her 4
years old child. The court granted the application as the child has yet
attained the age of discernment. In
another case, Zahrah bte Omar v Saidon bin Itam[29],
the right of custody goes to the mother and the father has the access and
visitation right.
Roughly,
it may seem that a mother will automatically obtain the right of custody of her
child. However, it is not to be overlook that such view is rebuttable as a
mother may lose her right over her child if she failed to fulfill the
requirements in section 82 and 83 of Act 303.
Section
82 discuss on the qualification necessary for custody. The right of custody of
a child is not fit to be awarded to person who is non-Muslim, unsound mind, at
the right age that may not give the child all the care needed, against the
Islamic view of morality or lives in an unsuitable place for a child to grow
in. In relation to domestic violence, the subsection (d) of the provision may
be the most relevant element to be used in order to annul the right of custody
from the abusive parent.
Islam is a religion of peace and thus, it does
not promote violence in its believers. For example, although the religion
allows parents to use physical punishment in teaching the children, there are
only few parts of the body that is allowed for the purpose such as the calf and
hand. In addition, it also ruled out the
guidelines on how to treat the children according to their age, during their
growing up phases. There are four stages in educating the children. For
example, adolescent from his first day to seven years old should be pampered,
loves and adores with infinite love. At the age 7-14 years old, the Prophet
told us to start instilling discipline to children. While, from 14 to 21 years,
Parents are supposed to educate children by making friends in the discussion
and give him responsibility in certain things at home. Above the age of 21
years, parents can let go of his son to learn through life but still see its
development and provide advice and warnings when children are mistaken or
forgotten.
Such
example of hadiths shows that Islamic law encourages Muslims to adopt gentle
and soft method in educating children. Therefore, it can be said that section
82(d) which states that, a hadhanah should have a good conduct of Islamic
morality, is the best element in raising the doubt of unfitness of a person who
practice domestic violence to hold custody over children as it is against the
Islamic morality to practice violence in the family institution.
On
the other hand, section 83 elaborates on the situation where hadhanah will
lost. In the Subsection(e) of the provision, a woman shall be deprived from her
right of custody if she neglected or practiced cruelty to the child. At the
first place, a woman was made as the first choice to hold the hadhanah because
of the nature of woman herself that is gentle and loving. Such quality is
important for children throughout their growth. However, if a woman act in such
way that may harm the children, the benevolence of the children shall prevail.
In
the case of Marthiah v Ahmad Sulaiman[30],
the mother had applied for the custody of her children, alleged that they were
beaten by their stepmother. In considering the child wish which is to stay with
their father, the kadhi had failed to observe the welfare of the children when
he did not ask the children about the alleged beating they might have receive
in their father’s custody. Perhaps, if it can be proven that the stepmother’s
alleged beating considered as cruelty and there had been witness for that, the
right of custody may be deprived from the father.
The
duration of custody lasts until a boy aged 7 years old or 9 years old for
girls. Upon reaching the end of the duration, the children may decide with
which parent that they wish to live with. However, as the welfare of the
children is the utmost important element in deciding the right of custody, the
wish of the children, even though it should be taken into consideration once
they attain the age of discernment, shall be put aside if it does not protect
their welfare.
In
the case of domestic violence, the advice from the child welfare and child
psychology experts will be of a great help in determining which parent should
have the custody as according to the benefit of the child, psychologically.
Although the court is not bound to follow the advice from these people[31],
it will guide the decision made by the court as it helps in improving the
welfare of the children.
In
answering the question of whether the court will give any protection to the
victim of domestic violence, section 127 of the Islamic Family Law have had it
clear that any person who ill-treated his or her spouse shall be held guilty
and therefore will be punished with a fine not exceeding one thousand ringgit
or to imprisonment for a term not exceeding six months or to both.
In
conclusion, through the Syariah perspective, a mother, without any doubt always
have the priority in keeping her infant child with her should the breakdown of
marriage takes place. However, this right is not absolute since she still has
to prove herself to be fit to take care of her child before the divorce happen
and will be so after the divorce takes place. When it comes to domestic violence,
a mother will lost her right of hadhanah upon the verification of her offence
of harming her child, as stated in the Islamic Family Law (Federal Territories)
Act 1984.[32]
4.0 Remedies for domestic violence
The victim of domestic violence may avail himself of two types of
remedies, protection orders and compensation.
4.1 Protection
order under the Domestic Violence Act (DVA) 1994
In
proceedings involving a complaint of domestic violence, the court may issue a
protection order restraining the person against whom the order is made from
using domestic violence against the complainant, child and the incapacitated
adult[33],
whereby a complaint pursuant to the DVA 1994 may be filled in any district
where the complainant resides, the alleged violence occurred or the victim is
temporarily located.[34]
Protection orders which may be granted from the court under Domestic Violence
Act 1994 are interim protection order and protection order.
An interim protection order is a temporary
and urgent legal protection order that can be sought pending investigations by the police following the information to the
commission of the offence involving domestic violence. According to Section
4(1) of Domestic Violence Act 1994, the court may, during the pendency of investigations
relating to the commission of an offence involving domestic violence, issue an
interim protection order prohibiting the person against whom the order is made
from using domestic violence against his or her spouse or former spouse or a
child or an incapacitated adult or any other member of the family, as the case
may be, as specified in the order. However, the interim protection order will
cease to have effect upon the completion of the investigations.[35]
Furthermore, a protection order may be sought
during any criminal proceedings under Penal Code where the accused is charged
with an offence committed under circumstances that fall within the definition
of domestic violence. Protection
order is good for a period, not exceeding twelve months and can be extended for
a further period, not exceeding twelve months if the court is satisfied that
such extension is necessary for the person’s protection and personal safety.
If the court is satisfied on a balance of
probabilities that it is necessary for the protection and personal safety of
the complaint or the child or the incapacitated adult, the protection order may
be :-
(a) Grant the right of exclusive
occupation to any protected person of the shared residence or a specified part
of it regardless of whether the shared residence is solely owned or leased by
the person against whom the order is made or jointly owned or leased by the
parties.
(b) Forbid the person against whom the
order is made from entering any protected person's place of residence or place
of employment or school or other institution or from making personal contact
with any protected person other than in the presence of an enforcement officer
or such other person as may be specified in the order.
(c) Require the person against whom the
order is made to permit any protected person to enter the shared residence, or
to enter the residence of the person against whom the order is made,
accompanied by any enforcement officer for the purpose of collecting the
protected person's or persons personal belongings.
(d) Require the person against whom the
order is made to avoid making written or telephone communication with any
protected person and specifying the limited circumstances in which such
communication is permitted.
(e) Require the person against whom the
order is made to permit any protected person to have the continued use of a
vehicle which has previously been ordinarily used by the protected person or
persons.
However,
the court may extend a protection order for a further period not exceeding 12
months from the date of expiration of the original order if the court is
satisfied that, notwithstanding that there had been no actual contravention of
the order, the extension is necessary for the protection and personal safety of
the protected person or persons, but extension of the order should not be made
more than once.
Besides
that, if the person whom a protection order or interim protection order is made
is likely to cause actual physical injury to the protected person or persons,
the court may attach a power of arrest to the protection order or interim
order. The police officer may arrest without warrant the person against whom
the order is made when he has reasonable cause to believe that the person is in
breach of the order by reason of that person’s use of violence or entered into
any place prohibited under the order if a power of arrest is attached. The
arrested person must be brought before a judge[36]
within 24 hours of his arrest and will not be released within that period
except on the direction of the judge.[37]
However, he will not be further detained after the expiry of that period.[38]
4.1.1
Restraining and restriction orders
Section
6(3) of the Domestic Violence Act 1994 stated that where an order is made that
the right to occupy the shared residence or to enter the alternative residence
is suspended or restricted, or prohibited or restrained, the order will not
affect any title or interest that the person against whom the order is made or
any other person might have in the said premises. The court will only make an
order excluding a person from the whole of a shared residence which is solely
or jointly owned or leased by him, if the court is satisfied that there is no
other way to secure the personal safety of the protected person.[39]
If the alternative residence is found for the protected person or persons, the
order will be revoked.[40]
Alternatively, if the court is satisfied that it is no longer necessary for
securing the personal safety of the protected person or persons, the order will
be revoked or modified.[41]
Injunctions
against molestation can be issued by the court under Section 103 of the Law
Reform (Marriage and Divorce) Act 1976 (LRA 1976).[42]
Section 103 LRA 1976 stated that the court shall have power during pendency of
any matrimonial proceedings or on or after the grant of decree or divorce,
judicial separation or annulment, to order any person to refrain from forcing
his or her spouse or former spouse and form others acts of molestation. Though
there is no provision in the DVA for an exclusion order, the court could apply
the provisions of the English Domestic Violence and Matrimonial Proceedings Act
1976 if as stated under Section 3 of the Civil Law Act 1956 where the English
common law principles can be invoked if there is a lacuna in Malaysia Law. By
referring to the case of Chan Ah Moi v
Phang Wai Ann[43],
the court held that non-molestation order will be allowed as the petitioner has
filed proceedings for the dissolution of the marriage or given an undertaking
to do so within the time frame set by the court under section 103 of the Law
Reform (Marriage and Divorce) Act 1976 ('the Act') and English common law
principles can be invoked as provided under section 3 of the Civil Law Act 1956
as there is no provision under LRA 1976 for an exclusion order as the
respondent was sentenced on 7 October 1992, the DVA had not been legislated. If
the DVA were applicable when the respondent was charged under the Penal Code,
it would have brought him within the purview of 'domestic violence' as defined
under s 2 of the DVA and the protection order envisaged under s 13 of the DVA
would have been applicable.
In
the case of Jennifer Patricia a/p
Thomas v Calvin Martin a/l Victor David[44],
the court held that the stand taken
for the husband is that the order sought by the wife under the Domestic
Violence Act 1994 ("the 1994 Act") cannot be made as there was no
pending criminal proceeding. The essential requirement under section 13 of DVA
1994 is that there must be criminal proceedings under the Penal Code where the
husband has been charged with an offence. Since there was no such criminal
proceeding against the husband in this instant case, the wife is unable to
avail herself of the protection order under s. 13.
4.2 Compensation
The
compensation may be awarded to the victim of domestic violence if it is in
respect of the injury or damage or loss as it deems just and reasonable as
stated under Section 10(1) of DVA 1994.
According
to Section 10(2) of DVA 1994, the court may take into account: (a) the pain and suffering of
the victim, and the nature and extent of the physical or mental injury suffered
(b) the cost of medical treatment for such injuries; (c) any
loss of earnings arising therefrom; (d) the amount or value of the property
taken or destroyed or damaged; (e) necessary and reasonable expenses
incurred by or on behalf of the victim when the victim is compelled to separate
or be separated from the defendant due to the domestic violence, such as:(i)
lodging expenses to be contributed to a safe place or shelter; (ii) transport
and moving expenses; (iii) the expenses required in setting up a separate
household which, subject may include amount representing such housing loan
payments or rental payments or part thereof, in respect of the shared
residence, or alternative residence, as the case may be, for such period as the
court considers just and reasonably necessary.
Furthermore, in considering any necessary and reasonable
expenses that may so be taken into account the court may also take into
account: (a) the financial position of the victim
as well as that of the defendant; (b) the relationship that exists between
the parties and the reasonableness of requiring the defendant to make or
contribute towards such payments; (c) the possibility of other proceedings
being taken between the parties and the matter being more appropriately dealt
with under the relevant laws relating to the financial provision of spouses or
former spouses and other dependant[45].
5.0 ANALYSIS OF CUSTODY ISSUE IN CONTEXT OF DOMESTIC VIOLENCE
Throughout the research, we observes how all the
related Acts, effectively identify and respond to victims of family violence.
Therefore, we come out with few matters to be discussed in this analysis part.
First and foremost, our viewpoint would be there are too many
statutes like Acts and Code need to be referred with regards to this domestic
violence issue. Although the Domestic
Violence Act 1994 (DVA) is the main Act being used for minimizing domestic
violence in Malaysia, it must also being read together with Penal Code to ensure
that the offence committed by the accused
is under circumstances that fall within the definition of domestic violence. Other
statutes which deal with domestic violence are the Law Reform (Marriage and
Divorce) Act 1976 (LRA), the Married Women Act 1957 (MWA), and to some extent
the Penal Code (PC) along with the Child Act 2001. We therefore suggest that
the contents of DVA should be improvised to make it comprehensive and more
effective in dealing with this issue.
Besides,
we agree that in deciding whose custody a child should be placed, the paramount
consideration shall be for the welfare of the child and have regard to the
wishes of the parents of the child and the wishes of the child themselves such
as in the case of Baheerathy A/P Arumugam v V Gunaselan A/L V Visanathan[46].
The court has to make a good judgement and decision pertaining to this
matter as according to Section 88 of the LRA where the court has power to make
order for custody of child to any suitable person when there are exceptional
circumstances making it undesirable that the child be entrusted to either
parent.
Other
than that, in comparing with the custody issue in context of domestic violence
under Syariah Law, a mother will obtain the hadhanah until she is proven to be
unfit to carry out the duty. Meaning that, there is a better right on mother’s
right with relation to custody matter as provided in section 81(1) IFLA.
Indeed, before it comes to the question of the right of custody of the
children, there must be proof that there is breakdown of marriage taking place.
This applies for both, under Law Reform (Marriage and Divorce) Act 1976 (LRA)
and also Islamic Family Law (Federal Territories) Act 1984 (Act 303) (IFLA).
For non-Muslim marriage, the court hearing the petition must, so far as it
reasonably can, inquire into the facts alleged as causing or leading to
breakdown of the marriage and, if satisfied that the circumstances make it just
and reasonable to do so, make a decree for its dissolution[47].
Meanwhile, in Islamic law, such situation can usually be recognized when there
is an application of divorce through fasakh.
Moreover,
our concern would be relating to the protection order by the court especially
on injunctions against molestation which can be issued by the court under
section 5 of the DVA during the existence of marriage or under section 103 of
the LRA during the pending of divorce, judicial separation or annulment. The
first disputed point is that there is no provision under DVA for an exclusion
order in the matter of molestation. DVA as the main Act being used by the court
should that be reliable enough to cover various aspects on issue of domestic
violence in Malaysia. Thus, we recommend that the law reform shall be made on
DVA for non-molestation order.
Secondly
is relating to the conflict that may arise on the issue of custody and
molestation at the same phase. This is due to the fact that the innocent spouse
who is seeking for custody and protection of
a child will have to go through
matrimonial proceedings first for example, by filing a divorce before she apply
for an injunction under section 103 of the LRA. This will ultimately lead to
the marriage being dissolved when there may be chances to save the marriage.
For instance, a wife may need protection against her husband who frequently
molested her but she still wants to retain the marriage. Unfortunately, in
order to apply for an injunction under the LRA, she will have to petition for
divorce or judicial separation. In this aspect, the DVA provides a better
alternative for the wives to seek protection without jeopardizing her marriage.
Unlike
section 4A of the Married Women Act 1957 where the victims may only get remedy
in monetary form meanwhile the DVA provides injunction against molestation[48]
and also compensation[49].
However, it must be noted that an injunction would be better remedy as compared
to damages for cases involving domestic violence. Damages would not help
victims who need protection since guilty spouses may still endanger or cause
harm and injuries to the victims. Unfortunately, the protection order under the
DVA would only be effective for 12 months and it can be extended once for a
maximum period of 12 months. Therefore, the guilty spouse may disturb the
victims after the expiration of the order. This proves loopholes in this act.
Although
the DVA made positive changes relating to domestic violence, there are some
flaws in the DVA and one of the major flaws can be seen in section 3 of the
DVA. This section requires the provisions of the DVA to be read together with
the PC. Thus, the strict procedures under the Criminal Procedure Code (CPC)
shall be applicable as well. This creates difficulties in the implementation of
the law under the DVA where most of the offences of domestic violence are
categorized as non-seizable offence, which require warrant of arrest before the
police could arrest the guilty spouse for the purpose of investigation. An
investigation in a non-seizable offence requires an order from the deputy
public prosecutor. Failure to obtain the order would invalidate all evidence collected
by the police.
In
the case of Chan Ah Moi v Phang Wai Ann, Abdul Malik J referred the DVA as
a toothless tiger. It means that the DVA appears as if it is a comprehensive
and effective law in dealing with cases relating to domestic violence when in
fact it is not. This is because most cases of domestic violence like punching,
kicking, assaulting would squarely fall under the category of non-seizable
offence. There is therefore, no immediate need for the police to investigate
unless the deputy public prosecutor issues an order to investigate. Having to
comply with the strict procedures of the CPC will cause delay in taking action.
The guilt spouse may have caused serious or severe injuries and harm to the
victim by the time he is arrested.
All
in all, the DVA solely may not be able to give justice and fairness to the
victims of domestic violence and that is one of the reasons why domestic
violence keeps rising among citizens. Even though court could make a just
judgment when it comes to custody as stated under LRA and also Guardianship of
Infants act 1961 when the breakdown of marriage happened, but still could not
prevent domestic violence from happening. Thus, the other statutes should also
be referred in order to protect the rights of the victims of domestic violence
especially relating to custody of children.
6.0 CONCLUSION
Domestic violence historically has been viewed as
a private family matter that need not involve the government or criminal justice.[50] In 2010, the United Nation finds that although
acts of domestic violence are illegal and violation of human rights, it is
still often considered a private matter. Even countries that have laws against
domestic violence may not enforce them and also, there are many countries that
do not criminalize domestic violence. However, Malaysia takes the
seriousness of this matter and thus, for
the welfare of the victims and to prevent domestic violence from keeps rising;
Domestic Violence Act 1994 was gazetted on 7th July 1994 and became
law on 1st June 1996.
Throughout this assignment, we have covered on matters of law
involving domestic violence particularly with regards to the custody issues. Therefore,
based on the laws and cases, we clearly signifies of the importance of the laws
that govern on domestic violence issues in Malaysia such as the Domestic
Violence Act 1994 (DVA), the Law Reform (Marriage and Divorce) Act 1976 (LRA),
the Married Women Act 1957 (MWA), and to some extent the Penal Code (PC) along
with the Child Act 2001. Meanwhile, for Muslims the statute referred is the Islamic
Family Law (Federal Territories) Act 1984 (Act 303).
We
believe that there is still room for improvements relating to the domestic
violence laws in Malaysia. This is because currently, the DVA solely may not be
able to give justice and fairness to the victims of domestic violence. Law
reforms should be made especially with regards to the remedies available for
domestic violence issue. All in all, with increasing number of cases on
domestic violence occurred in Malaysia year by year, it is essential for the
law maker to provide a comprehensive statute or Act providing applicable law in
handling this matter.
6.0 References
Ahmad Ibrahim. (1997). Family Law in Malaysia- 3rd
Edition. Malaysia: Lexis Nexis Malaysia Law Sdn. Bhd.
Bhaie, K. (2009). Family Law in Malaysia. Malaysia: Lexis
Nexis Malaysia Law Sdn.
Bhd.
Domestic Violence Act 1994. (2014).
Fagan, Jeffrey (1995). "Criminalization of Domestic Violence: Promises
and Limits"(PDF). "Research Report".
Conference on Criminal Justice Research and Evaluation. National Institute of
Justice.
Finkelhor, D. (2008). Childhood
Victimization: Violence, Crime, and Abuse in the Lives of Young People. New
York: Oxford University Press.
Islamic
Family Law (Federal Territories) Act 1984 (Act 303). (2014).
Law
Reform (Marriage and Divorce) Act 1976 (Act 164) & Rules. (2014).
Nuraisyah Chua Abdullah. (2006). Family Law for Non-Muslim in
Malaysia. Malaysia: International Law Book Services.
3,831 Child Abuse Case Recorded Last
(2013, August
11). The Business Times.Retrieved on 10 November 2014, from http://www2.nst.com.my/business/todayspaper/3-831-child-abuse-case-recorded-last-year-1.335999
Zaleha Kamaruddin. (2005). Divorce laws in
Malaysia (Civil and Shariah). Malaysia: Lexis Nexis Malaysia Law Sdn. Bhd.
[1]
Finkelhor, D. (2008). Childhood Victimization:
Violence, Crime, and Abuse in the Lives of Young People. New York: Oxford University Press.
[2]According
to 3,831 Child Abuse Case Recorded Last (2013, August 11). The Business Times.Retrieved on 10 November 2014,
from http://www2.nst.com.my/business/todayspaper/3-831-child-abuse-case-recorded-last-year-1.335999
[3]Offences
affecting the human body (Section 299-377E) (Act 574).
[4]Pg136.
Bhaie, K. (2009). Family Law in Malaysia. Malaysia: Lexis Nexis Malaysia
Law Sdn. Bhd.
[5]
Act 164.
[6]Also
called Hadhanah under Act 303.
[7]S 3
of DVA 1994;
the provisions of this Act shall be read together
with the provisions of the Penal Code [Act 574].
[8][2012]
MLJU 599.
[9]S
88(2)(a) of LRA.
[10]Ibid
S 88(2)(b).
[11][2000]
6 MLJ 48.
[12]S
88(1) of LRA.
[13]Ibid
S 89.
[14]S
53 of LRA.
[15]Ibid
S54(1)(a)-(d).
[16] Bhaie,
K. (2009). Family Law in Malaysia. Malaysia: Lexis Nexis Malaysia Law
Sdn. Bhd.
[17]
[2004] 291 MLJU 1.
[18]
[1972]3 All ER 219.
[19]
[1975] 2 All ER 979.
[20]
[1974] 2 All ER 766.
[21]
[1972] 1 All ER 724.
[22][1972]
1 All ER 587.
[23]
[1996] 4 MLJ 421.
[24]
[1995] 3 MLJ 130.
[25]
[1991] 3 MLJ 34.
[26] Act
303
[27][1992]
2 MLJ 793.
[28]
(1987) 2 JH 225.
[29]
(1983) 2 JH 225.
[30]
(1984) 5 JH 335
[31] S
104 of the Islamic Family Law (Federal Territories) Act 1984.
[32] S
83(e) Islamic Family Law (Federal Territories) Act 1984.
[33]
DVA 1994 s 5(1)(a)-(c).
[34]
Ibid s 14(a)-(d).
[35]
Ibid S 4(2).
[36]
For these purposes ,’judge’ includes a magistrate: ibid s 7(4).
[37]
Ibid s 7(3)(a),(b).
[38]
Ibid s 7(3).
[39]
Ibid s 6(4).
[40]
Ibid s 6(4)(a).
[41]
Ibid s 6(4)(b).
[42]
Act 164.
[43]
[1995] 3 MLJ 130.
[44]
[2005] 6 MLJ 728.
[45]
DVA 1994 s 10(3).
[46][2012]
MLJU 599.
[47]S
53 of LRA.
[48]S
4 of DVA.
[49]
Ibid S 10(2)
[50] Fagan,
Jeffrey (1995). "Criminalization of Domestic Violence: Promises
and Limits"(PDF). "Research Report".
Conference on Criminal Justice Research and Evaluation. National Institute of
Justice.
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