Muslim Adoption Enactment 2024

This Enactment shall come into operation on the date of its publication in the Gazette.

[26.12.2024]

Interpretation

is born in Sabah, resides in Sabah and one of his parents is related to a local resident of Sabah through a marriage; or

is a resident in the state of Malaysia which ―

have a relationship with the local residents of Sabah through a marriage, and living in Sabah; or

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All words and expressions used in this Enactment and not herein defined but defined in Part I of the Interpretation and General Clauses Enactment 1963 shall have the meanings assigned thereto in that Part to the extent that such meanings do not conflict with Islamic Law.

For the avoidance of doubt as to the identity or interpretation of words and expressions used in this Enactment that are listed in the First Schedule, reference may be made to the

Arabic script for those words and expressions as shown against them therein.

the child and one of the adoptive parents have a Sabah connection;

the child is below the age of eighteen and not married;

the child has been continuously in the care of the adoptive parents for three consecutive months preceding the date of the order;

the child has a birth certificate or a valid document recognized by the National

Registration Department;

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the adopter has attained the age of twenty-five and is at least twenty-one years older than the child in respect of whom the application is made unless the Court is satisfied that there are special circumstances for the making of an order;

a single male may not adopt a female child unless the Court is satisfied that there are special circumstances which shall not harm the child;

the natural mother or natural father, the father or stepmother of a rabibah child, may not adopt the child their natural child and his rabibah’s child;

the biological father either married or not to the natural mother, may not adopt his own illegitimate child; and

a declaration is made by the adopter that he is capable of providing maintenance, education and adequate care, protection, welfare and supervision of the child and is not convicted of any offence involving sexual crimes and serious crimes.

For the purposes of this Enactment, a person who in accordance with Islamic Law, possesses the rights and responsibilities for the care of a child, as laid down in the Second

Schedule in the prescribed order of preference for custodians, include but not limited to educational or other administrative requirements, may be appointed as a guardian to the child, as an alternative to adoption.

Consent to adoption

natural parents or guardian of the child;

mother of the illegitimate child; or

person who is liable to contribute for the support of the child.

If the natural parents or mother of the illegitimate child are minors, consent shall be given by the grandfather or grandmother or both or their guardian.

Persons under subsections (1) and (2), shall give their consent to the child’s religion, which shall follow the belief of the adopter, and shall register the child’s religion in accordance with the written law in force.

Dispense with consent

have abandoned, neglected or persistently ill-treated the child;

have persistently neglected or refused so to contribute; or

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cannot be found or is incapable of giving his consent or that his consent is unreasonably withheld.

For person who cannot be found under paragraph 1(c), the Court may allow substituted service, if it satisfied that attempts to locate the person have been made, but were unsuccessful.

No consent is required for abandoned children under the care of the Sabah State

General Welfare Services Department.

The Court may dispense with the consent of the spouse if one of the spouses cannot be found or is incapable of giving such consent or that the spouses have separated and are living apart and that the separation is likely to be permanent.

Restrictions on the natural parents, guardian, etc.

The Director may, if satisfied, give his support to their intention, and direct them to file an application for adoption to the Court in the manner prescribed by the Court.

Guardian ad litem

The Director may grant permission for the child to be under the care and control of the applicant for a period of three consecutive months, commencing from the date of such permission or until the issuance of adoption order, whichever is earlier.

The Director shall, within such period, conduct an investigation on the applicant and prepare a report for the Court to state his opinion on such investigation which shall be deem as confidential under the Official Secrets Act 1972 [Act 88] and shall not divulge any part of it to any other person except so far as may be necessary for the proper execution of his duty.

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Duties of guardian ad litem

whether the statements in the form of application required by subsection 11(1)

are true and complete, particularly as regards to the date of birth and the identity of the child;

whether any financial support for the welfare of the child has been made as agreed;

the applicant’s ability or status that allows them to financially support and raise the child properly, as well as any rights or interests related to the child’s property;

whether it is desirable for the welfare of the child that the Court should be asked to make an interim order or, in the case of an adoption order, to impose specific terms or conditions or to require the adopter to make provision for the welfare and care of the child, for the best interest of the child; and

any other responsibility according to any written law take into force.

Application

Every notice shall be served to the Director and any person under section 5, as the case may be.

Court proceedings

For every proceeding of adoption, the Court ―

For the purpose of this section, if the parent or guardian is required to attend the proceeding, but their whereabouts are unknown, the Court may issue an order for substituted service for a period deemed appropriate by the Court.

Matters to be satisfied by the Court

that the person consenting to the adoption and the person adopting fully understand the effect of the adoption under section 20;

the order, if made, must be for the welfare of the child, taking into account the wishes of a discernibled (mumayyiz) child who understand and can express their own opinion;

that neither the applicant nor the parent or guardian has received or agreed to receive, and that no person has made or given, or agreed to make or give to the applicant or the parent or the guardian any payment or other reward in consideration of the adoption except such as the Court may sanction;

the close relative of the applicant has given consent before the Director for the child to be placed under his control temporarily, should the applicant face calamity; and

there has been a substantial change in the circumstances, if it appears that the applicant has made a previous application under this Enactment in respect of the same child.

Sealed copy of the adoption order

The adopter shall, within one year from the date of issuance of the order, submit to the

Registrar a certified copy of the sealed order, failure which the Court may, on an application, extend the validity of such order for another one year, if he thinks reasonable.

For the purpose of this section, a sealed copy of the adoption order shall be issued, upon registration of the child’s religion under subsection 5(3).

Amendment of orders and rectification of Registers

Where an adoption order is quashed or an appeal against an adoption order allowed, the Court which made the order shall give directions to the Registrar to cancel any marking of an entry in the registers of births, and any entry in the Registry, which was effected in pursuance of the order.

A copy or extract of an entry in any register, being an entry the marking of which is cancelled under this section, shall be deemed to be an accurate copy if and only if both the marking and the cancellation are omitted therefrom.

Withdrawal and replacement of adopter

The Court may, on an application made by the adopter, allow the withdrawal or replace the adoption to another person, if he thinks it is for the best interest (maslahah) and welfare of the child, and the child shall be handed over, within seven days from the order, to the new guardian as determined by the Court.

The adopter shall be restricted from re-adopting the same child except with the permission of the Court.

Cancellation of adoption

the adopter has deliberately neglected, abandoned, or has continuously ill treated the child which affect the life of the child or has been proven to have abused the child;

the adopter is no longer capable to continue or fulfill his responsibility for the adoption;

the adopter has been convicted of any offence involving sexual crimes and serious crimes; or

there are inappropriate changes to the adoption, which cause harm (darar) and is irreparable.

For the purpose of this section, every notice of application shall be served to the Director.

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Death of adopter

Where both adopters die, the child shall be under the care and control of the close relative as mentioned in paragraph 13(d) and he may continue the adoption as he wishes or give his consent to any other person to adopt the child.

If the close relative wishes to continue the adoption, he shall, on an application to the

Court, amend and rectify the adoption under his name.

Responsibility of the close relative

care for the child temporarily, in the event of a calamity be falling to the adopter;

inform the natural parent or guardian of such calamity;

carry out the registration of adoption as the adoptive parents are responsible for, if the registration has not been made;

apply for an adoption order on the child, if he wishes to adopt; and

refer the child to the Director, if he or the natural parent or guardian have no intention of adopting or reclaiming the child.

For the purposes of this section, the natural parent or guardian may, apply for the cancellation of the adoption order and reclaim the custody of the child.

Effect of adoption order

Notwithstanding the adopter’s responsibilities under subsection (1), nothing herein shall affect ―

The adopter shall bear the legal consequences for any wrong doings committed in relation to the welfare of the adopted child.

The adopted child shall be raised according to the religious beliefs, practices, and traditions of the adoptive parents.

Property rights of an adopted child

The adopter is responsible to register the adoption before the Registrar by submitting the certified copy of the adoption order annexed with schedule as prescribed by the Court and the original birth certificate of the child.

The Registrar shall, upon receiving the certified copy of the adoption order together with the original birth certificate of the child, enter the details into the Registry of Muslim Adoption following the adoption order.

The Registrar shall, upon payment of fee ten ringgit, issue a Certificate of Adoption in replacement of the original birth certificate of the child.

For the purposes of this Part, the Registrar shall upon the prescribed fee be responsible for amending, altering or adding details in the register as ordered by the Court.

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Extract and replacement of certificate

the certificate has been damaged or lost; or

there are any corrections made pursuant to the amended order issued by the

Court.

For the purpose of subparagraph (1)(a), it must be supported by a police report and a statutory declaration under Statutory Declarations Act 1960 [Act 783], by the adopter or any person who is eligible to do so.

For the purpose of this section, the original certificate of adoption shall be returned to the Registrar.

Cancellation of the Certificate of Adoption

The Registrar shall, upon payment of fee ten ringgit, cancel the certificate and return the original birth certificate in favour of the natural parent or the guardian of the child.

Recognition of adoption outside of Sabah

without lawful authority alters or changes or removes any entry or particular or matter in the Registry of Muslim Adoption kept under subsection 24(1),

alters, changes or removes any particular in a certificate of adoption or destroys or defaces such particular; or

without reasonable cause, retains or has in his possession, a certificate which is not issued to him by the Registrar under subsection 24(4);

commits an offence and upon conviction shall be liable to a fine not exceeding five thousand ringgit or to imprisonment for a term not exceeding eighteen months or to both.

The Court may, if he deems appropriate, exempt such payment of fee.

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Computation of age

the procedure relating to the application of adoption;

the procedure relating to the registration of adoption;

the fees of causes, matters and proceeding, in Court;

the form to be used in respect of any act or thing done under or in pursuance of this Enactment; and

any such other rules in respect of all matters under this Enactment.

Penalties for subsidiary legislation

Chief Syar’ie Judge who shall be the Chairman;

State Attorney General or his representatives;

a representative of Majlis Ugama Islam Negeri Sabah;

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a Syariah High Court Judge;

a Syar’ie Lawyer; and

two other persons deemed fit by the Chief Syar’ie Judge

The members appointed under subparagraphs (1)(c), (d), (e) and (f) shall hold office for a period of two years and eligible for reappointment.

The Registrar of Syariah Court shall be the Secretary of the Committee and shall be responsible to implement the decision of the Committee.

If the Chairman is unable to attend a meeting, the Committee may appoint another person to take his place at that meeting.

The members of the Committee and the Secretary may be paid such allowances for every meeting.

The Committee may determine his own procedure.

Guideline and direction

The Chief Syar’ie Judge may vary, review or revoke any guidelines or directives.

Non-compliance with any guidelines or directives may render a proceeding void unless the Court order otherwise.

Inherent power of the Court

In the event of a lacuna or where any matter is not expressly provided for in this

Enactment, the Court shall apply Islamic Law.

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Savings and transitionals

All declaration, order, notification, notice, form, authorization, appointment and registration issued or made under any law, guideline or direction of the Court in relation to matters prior to this Enactment shall continue to be in force, to the extent not inconsistent with this Enactment until it is revoked or replaced by declaration, order, notification, notice, form, authorization, appointment and registration issued or made under this Enactment.

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FIRST SCHEDULE

[Subsection 2(3)]

ARABIC SCRIPT FOR CERTAIN WORDS AND EXPRESSIONS darar ضرر

asobah عصبة

mahram محرم

mumayyiz مميز

hibah ھبة

maslahah مصلحة

syarak شرع

nasab نسب

rabibah ربيبة

wali ولي

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SECOND SCHEDULE

[Subsection 4(2)]

ORDER OF PREFERENCE FOR CUSTODIAN