Case Updates

Case Update: Illegitimate Muslim's child cannot bear father's name

Share:

Print
JUDICIAL REVIEW
National Registration Department – Whether the DGNR possess the authority under the BDRA to ascribe “bin Abdullah” instead of the biological father to the name of an illegitimate Muslim child, and whether the DGNR was correct in giving consideration to the personal law of a Muslim person? – Births and Deaths Registration Act 1957, Section 13A

Jabatan Pendaftaran Negara & 2 Ors v Seorang Kanak-kanak & 2 Ors
Civil Appeal No: 01(f)-43-09/2017(W), Federal Court
- see the grounds of judgment here

Facts The First Respondent (the “Child”) is the son of the Second Respondent (MEMK) and the Third Respondent (NAW). MEMK and NAW are both Muslims. The Child was born 5 months and 24 days (5 months and 27 days according to the Islamic Qamariah calendar) from the date of the marriage of MEMK with NAW. According to Muslim law, a child is illegitimate if he is born less than 6 qamariah months from the date of his parents’ marriage. It is therefore undisputed that the Child is an illegitimate child under Muslim law. The parents then jointly applied for MEMK’s name to be entered in the Birth Register as the father of the Child, however, the Child’s full name was given as “bin Abdullah”. The Child’s Birth Certificate also contained a notation “Permohonan Seksyen 13” which was an explicit acknowledgement that the application for the registration of birth, is for an illegitimate child. MEMK then applied to correct the Child’s name from “bin Abdullah” to that of his name, MEMK but was rejected by the Director General of National Registration (DGNR) on the basis that the Child, being an illegitimate Muslim child cannot be ascribed to the name of his biological father, in line of the fatwa issued on the subject. The decision of the DGNR was challenged by way of judicial review at the High Court, but it was dismissed. In reversing the decision of the High Court, the Court of Appeal found that the learned High Court Judge had failed to address the existence of section 13A(2)[1] of the Births and Deaths Registration Act 1957 (BDRA) in arriving at its decision, and further held that an illegitimate child can bear either the mother’s name or the father’s name. Hence, this appeal.

Issues The main issue is whether the DGNR possess the authority under the BDRA to ascribe “bin Abdullah” instead of the biological father to the name of an illegitimate Muslim child, and whether the DGNR was correct in giving consideration to the personal law of a Muslim person?

Held In allowing the appeal, the Federal Court held that in performing registration of births of Muslim children, the DGNR may rely on Islamic law applicable to the person. However, since there is no fatwa on how to name an illegitimate child gazetted in Johor, the DGNR cannot unnecessarily impose the fatwa of the National Fatwa Committee on the Respondents. The Court then ordered the DGNR to remove “bin Abdullah” from the Birth Certificate, and maintain the Child’s name without it. 

ZUL RAFIQUE & partners
{31 March 2020}
[1] The surname, if any, to be entered in respect of an illegitimate child may where the mother is the informant and volunteers the information, be the surname of the mother; provided that where the person acknowledging himself to be the father of the child in accordance with section 13 requests so, the surname may be the surname of that person.