2025 CFORSJ i-CONF

Parental alienation (PA) can be defined as a mental condition involving the rejection from a child towards one parent under custody matter. Parental alienation has been discussed widely by international scholars however this matter seems less known in Malaysian society. The purpose of this study is to understand the extent of discussion regarding parental alienation on determining the right of custody in court in Malaysia and to identify whether it is a crime along with-it consequences on children involved. Various discussions on parental alienation have led to different opinions and views. Some argued that parental alienation is one of the forms of child abuse reasoning the act tends to be committed by a party who wants to dominate his right using the child to oppose another party. Nonetheless, in Malaysia, this issue has not been discussed in detail hence this study mostly manages to refer to writings from the United States and other countries. The methodology used is qualitative where it focuses on library-based research and related provisions from statues, cases regarding child custody from both civil court and Syariah court and selected materials from books, journals, articles. The findings indicate parental alienation is not an offence in Malaysia and there is no specific law regarding parental alienation. Although parental alienation cannot be considered as a crime, the court has recognized the existence of it and one party can take a legal action against another party under civil litigation separately. Therefore, through this writing, it is hoped to provide an enlightenment on the issue of parental alienation in child custody and ḥaḍānah cases.

Malaysia adopts a dual judicial system which separates the jurisdiction of the Civil Courts and the Syariah Courts as provided under the Federal Constitution. This division is primarily based on Article 121(1A) and the State List in the Ninth Schedule, which empowers the State Legislative Assemblies to enact laws relating to Islamic affairs. However, in practice, the separation is not without overlap, particularly in matters involving religious status, marriage and divorce, child custody, and Syariah criminal offences. Such overlap arises when the jurisdictional conditions of the Syariah Courts—namely that the parties must be Muslims and the subject matter must fall within Paragraph 1 of the State List—intersect or conflict with the jurisdiction of the Civil Courts. This has led the Courts, especially the Federal Court, to resolve interpretative conflicts through case law, as seen in Latifah bte Mat Zin, Indira Gandhi, Iki Putra Mubarrak and Nik Elin Zurina. This study examines the historical basis of the judicial division, clarifies the jurisdictional scope of both Courts, evaluates the issues of overlap that arise, and proposes recommendations for harmonising the judicial system to ensure clarity, coherence, and effective administration of justice in Malaysia’s plural society.