Prophet Muhammad did not automatically grant custody of a child to a Muslim parent when he was asked to judge on a custody dispute involving a Muslim father and non-Muslim mother.
According to independent Islamic scholar and preacher Wan Ji Wan Hussin, the Prophet actually asked the child which of his parents he would prefer to be with.
"He placed the child between his non-Muslim mother and Muslim father and gave the child a choice. The child chose his non-Muslim mother.
"At that point, the Prophet said ‘Oh Allah, enlighten him’ and when the Prophet finished his prayer, the child went to his father," he wrote on his Facebook page.
When contacted by Malaysiakini, Wan Ji (right) said that the sunnah swayed the Hanafi and Maliki schools of thought to believe that custody should be granted on the basis of love, rather than the parents' faith.
This differed with the Shafie and Hanbali schools, which believe that it should be based on the parents' faith.
Wan Ji, who is a former PAS Ulama wing executive council member, said that he was inclined to adopt the view of the Hanafi and Maliki schools in the latest custody battle between S Deepa and her ex-husband Izwan Abdullah, a Hindu who converted to Islam.
This means custody should be granted to the Hindu mother rather than the Muslim father.
He said this is because the child is under seven, an age where he is considered in Islam to be ‘mumayiz’, that is being able to tell between right and wrong.
"At the age of six, the child is closer to his mother so I am more inclined to side with an argument based on love.
"I don't discount that some children are close to their fathers, but generally speaking, most children are closer to their mothers at a younger age as it is the mothers who nurse them,” he added.
'Islam prioritises love and safety'
Wan Ji said Muslims in Malaysia should look at the matter rationally, and not too emotionally, as even the Prophet did not insist that a child be cared for by a Muslim parent.
"I understand that some who want custody to be with the Muslim parent are concerned that the child may not be raised as a Muslim. "However, I believe this can be solved as the court can still grant regular access to the father, even if the child is cared for by the mother,” he added.
He also urged all groups who have differing views on the matter to join a roundtable to discuss the matter with those who oppose them, so there is a rational and systematic solution.
"Islam would want love and safety (for the child) and not chaos," he said.
Izwan had snatched their six-year-old son from Deepa after the High Court granted her custody because he feared that she will not raise him as a Muslim. The couple have a nine-year-old daughter, who is with Deepa.
Deepa (left) said that she did not initially have plans to revoke her husband's unilateral conversion of her children to Islam.
However, she said that she is now determined to overturn the conversion after the boy was snatched from her Jelebu home.
"When they turn 18, they (the children) can choose what religion they want to (follow). I have nothing against Islam, because there are Muslims in my family too," she told Malaysiakini.
Deepa's mother, Siti Aishah, is a Muslim convert.
Police will not act on Deepa's report on the snatching, claiming that Izwan was granted custody by the Syariah Court. Deepa is filing a case against Izwan for contempt of court.