Families of Missing Persons Can Apply for Court Orders for Maintenance

KUALA LUMPUR: The assets of individuals who have gone missing without any news of their whereabouts, known as mafqud, cannot be distributed according to faraid (Islamic inheritance law) until their deaths have been confirmed by a court. However, their next of kin have the right to apply for a special court order to obtain funds for living expenses.

Penang Mufti Associate Professor Datuk Dr Mohd Sukki Othman said Islam places great importance on the status of mafqud to safeguard the missing individuals’ rights over their property while ensuring that the welfare of family members left behind is not neglected.

He explained that according to the Shafi’i school of thought and the principle of istishab (presumption of continuity), a missing person is considered alive until evidence or a valid legal ruling establishes their death.

Act Presumes Death After Seven Years of Disappearance

“Although Section 108 of the Evidence Act 1950 provides for a presumption of death after a person has not been heard from for seven years, this period serves as a legal rule of evidence and does not automatically confirm death.

“However, to prevent wives and children from losing their sources of income, the use of part of a missing person’s assets for basic maintenance needs, such as daily expenses, housing, education and healthcare, may be considered through an order issued by a court with the relevant jurisdiction,” he told Berita Harian (BH) when contacted today.

He said legal mechanisms should provide a simpler and faster process for applying for temporary maintenance without having to wait for a final declaration of death, in line with the objectives of maqasid syariah.

To strengthen the management of such cases, Mohd Sukki proposed that the State Islamic Religious Councils (MAIN) collaborate with the Legal Aid Department and the Syariah Judiciary Department to establish dedicated advisory service centres, subsidised legal assistance and emergency maintenance mechanisms through zakat institutions or Baitulmal.

“Muslims are also advised to undertake early estate planning, such as establishing valid hibah (gifts), appointing trustees and obtaining takaful protection, as responsible measures to provide financial security for their families,” he said.

He was commenting on concerns raised by Hani Othman, the wife of a Fire and Rescue Department officer known as Loe, who remains missing following a flash flood tragedy in Nepal last August.

Hani Shares Her Concerns on Social Media

Meanwhile, Hani Othman, in a Facebook post, acknowledged that next of kin face significant challenges after her husband’s bank accounts were frozen.

Hani, who is also an Islamic financial adviser, said the best course of action for immediate family members would be to apply for the appointment of a trustee at the Civil High Court under the Trustee Act 1949, in addition to obtaining a maintenance order from the Syariah Court.

“A court order grants legal authority to the trustee to access financial accounts, settle liabilities and monthly financial commitments such as housing and vehicle financing, and withdraw funds for the family’s living expenses.

“However, the cost of obtaining such a court order ranges from RM6,000 to RM12,000 or more, depending on the complexity of the case. Therefore, efforts to improve the procedures in collaboration with the Attorney General’s Chambers (AGC) should be considered,” she said in a Facebook post.

Berita Harian