Landmark decision for children born out of wedlock

suppadmin | July 28, 2017

I read with delight the landmark decision made by the Court of Appeal for allowing a child born out of wedlock to take on his/her father’s surname.

SUPP welcomes this landmark decision as it rids the children born out of wedlock of discrimination.

We are pleased that the learned judges have made the decision to remove the stigma of the innocent children and give them a standing in society as they should be accorded. After all, they too have a father despite the unfortunate situation they were in.

We all know that it is painful for a woman to bring a child up without a father, what more with added unfair stigma by not allowing the father’s name in the birth certificate. This is punishing both the mother and the child who already has to bear the blunt of the society.

On humanitarian ground, who are we to judge the women who borne children out of wedlock. It is not for us to judge them but to give moral support that they needed.

The Court of Appeal ruled that a child conceived out of wedlock can take on his or her father’s surname, and that the edict on this by the National Fatwa Committee does not have the force of law.

Justice Abdul Rahman Sebli, who wrote the unanimous decision, 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 covers all children conceived out of wedlock, whether Muslim or non-Muslim.

In 2003, the National Fatwa Committee decided that a child conceived out of wedlock cannot carry the name of the person who claims to be the father of the child, if the child was born less than six months of the marriage.

In making the court ruling, 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.

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.

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 life.

The question left unanswered now is what is going to happen to past cases where children born out of wedlock do not have their biological fathers’ name in their birth certificate / MyKad.

In my opinion, in view of this legal precedent, those parents should go to the NRD and have the error corrected.

This would not only strengthen the children’s legal position in the eyes of the law, but also be kind to them in having on record the name of their rightful biological fathers.