Children conceived out of wedlock can take father's surname: Court of Appeal

PETALING JAYA: In a landmark decision by a three man bench, the Court of Appeal has ruled that a child conceived out of wedlock can take on his or her father's surname.

The ruling covers all children conceived out of wedlock, whether Muslim or non-Muslim.

The bench, consisting of Justices Abdul Rahman Selbi, Tengku Maimun Tuan Mat and Zaleha Yusof made the ruling in an appeal involving a seven-year-old child, who was born five months and 24 days (or five months and 27 days according to the Islamic Qamariah calendar) after his parents married.

The Justices allowed the family's appeal for the child to carry the father's name, "MEMK", the parents were only referred to by their initials in court documents, in order to protect the child's identity.

Justice Abdul Rahman Sebli, who wrote the unanimous decision in the 29-page judgment, said the jurisdiction of the National Registration Department (NRD) director-general is a civil one and is confined to determine whether the father had fulfilled the requirements of Section 13A(2) of the Births and Deaths Registration Act (BDRA).

This ruling essentially reads that the edict on such matters by the National Fatwa Committee does not have the force of law.

In 2003, the National Fatwa Committee decided that a child conceived out of wedlock ("Anak Tak Sah Taraf") cannot carry the name ("tidak boleh dinasabkan") of the person who claims to be the father of the child, if the child was born less than six months of the marriage.

Justice Abdul Rahman said the NRD director-general is not obligated to apply, let alone to be bound by a fatwa issued by a religious body such as the National Fatwa Committee.

The child was registered with the NRD two years after birth and at the time of doing this, the parents jointly applied to have MEMK's name as the father, but the NRD registered the child as "bin Abdullah" instead.

Justice Abdul Rahma said the NRD director-general acted irrationally in refusing to use the child's father in the birth certificate on the purported ground that according to the fatwa issued by the National Fatwa Committee, the child could not be ascribed with his father's surname as he is an illegitimate child.

He pointed out that for the NRD director-general to do so would amount to an abrogation of his power under the BDRA and surrendering it to the religious body.

He added that this would in effect be to take away the statutory right accorded to the father by Section 13A(2) to have his name ascribed as the child's surname in the birth certificate.

"A fatwa or a religious edict issued by a religious body has no force of law unless the fatwa or edict has been made or adopted as federal law by an Act of Parliament. Otherwise a fatwa issued by a religious body will form part of federal law without going through the legislative process," Justice Abdul Rahman said.

He said that aside from the legal technicalities, the issue involves the question whether an innocent child should be subjected to humiliation, embarrassment and public scorn for the rest of his or her life.

Justice Abdul Rahman said it is generally understood that if a Muslim child is given "Abdullah" as surname when the father's name is not, in fact, Abdullah, the child will be exposed as a child that is born out of wedlock.

He said it would just be a matter of time before the child discovers he was conceived out of wedlock by looking at his birth certificate.

He noted that the child'd identity card that will be issued later will also retain 'Abdullah' as the surname and all official documents involving the child will likewise, bear the same surname.

One can imagine the child's grief, not to mention the feeling of shame that the child has to bear throughout his or her existence.

Justice Abdul Rahman said a birth certificate serves as a poignant reminder of one's birth and "should not be turned into an instrument of shame."

He said it would be unfair for the child will have to carry the stigma of being an illegitimate child for the rest of his life.

Justice Abdul Rahman said the child's grief will be compounded if he compares his birth certificate with the birth certificates of his brothers and sisters (if any).