TUTORIAL 4: CHILDREN AND FAMILY LAW: LEGITIMACY & ADOPTION/

GUARDIANSHIP AND CUSTODY

GROUP 1: CHRISTY, ISHINI & SEE PEI PEI

Conduct a comparative analysis of the law in relation to legitimacy under civil and Islamic
law in Malaysia.

To what extent are the rights of the child protected?

Christy
Legitimacy under Civil law in malaysia
Children's rights in Malaysia has progressed significantly since Malaysia acceded to the United
Nations Child’s Rights Convention in 1995 and introduced the Child Act 2001. However, Malaysia has
reserved five core Articles; namely:
◦ Article 2 (regarding non-discrimination);
◦ Article 7 (regarding birth registration, the right to a name and nationality);
◦ Article 14 (regarding freedom of thought, conscience and religion);
◦ Article 28 (1) (a) (regarding compulsory and free primary education for all); and
◦ Article 37 (regarding torture or other cruel, inhuman or degrading treatment or punishment and
unlawful or arbitrary deprivation of liberty).
- Due to above mentioned reservations, some key challenges remain for children in Malaysia,
precisely children who belong to the “marginalized group” .
- They face significant restrictions on their ability to access education, healthcare, birth
registration and or child protection services .
- Therefore, due to the rise of illegitimate birth in Malaysia, it calls for serious attention and
action by the government, enforcement agents and NGO’s. Therefore, the outcry resulted in
the enactment of Legitimacy Act 1961.

Under the Common Law, a child is legitimate if both parents are married to each other at the time of
birth. A child who is born after his or her parents are divorced is also legitimate as it was conceived
within wedlock or if it was conceived out of wedlock but born within the wedlock. A child is
illegitimate if the child is born out of wedlock and the law is not concerned when the child was
conceived. According to the common law, an illegitimate child is related only to its mother and has
no relationship with its biological father. Hence, a legitimate child will usually be conceived and born
in a lawful wedlock.

Legitimacy of a child is important to determine issues in relation to inheritance of property and other
rights of a child.
- Section 6 (1) of the Legitimacy Act 1961 ​states that only a legitimated person shall be
entitled to take any interest in the estate (of both parents) and any disposition coming into
operation only after the date of legitimation.
- Section 9 of the Legitimacy Act 1961 ​states that only a legitimated person shall have the
same rights and be under the same obligations in respect of maintenance and support of
himself.

Tan Ying v Tan Kah Fatt & Anor and another appeal (the “Tan Ying case”) [2018] ​MLJU 1070
 - In this case, legal suits were filed by the lawful wife of the deceased to seek, a declaration
that the child fathered by the deceased with another woman is an illegitimate child and
hence, will not have the right to claim an interest in the deceased’s estate. Therefore, based
on the present law of this country, the High Court granted the unfortunate declaration.

Section 112, Evidence Act 1950​ provides two situations in determining the legitimacy of the child: A
child is presumed to be legitimate if he is born during the continuance of a valid marriage between
his mother and any man; or within 280 days after its dissolution, the mother having remained
unmarried. However, this presumption is a rebuttable one. If both parties to the marriage have no
access to each other at the time when the child was conceived. Note: non-access can be proven if
parties were physical separated due to employment etc; or due to husband is proven to be
important or incapacitated at the relevant point of time.

Case: Ah Chuck v Needham (1931)

- Mr and Mrs Hedges delivered a child and the birth was registered. Ah Chuck (Mongoloid)
was a gardener who worked close to the Hedges house and frequented the house while Mr
Hedges was away. Although both parents were caucasian the child had mongoloid features.
- The issue were whether the child was illegitimate, and whether Ah Chuck was the father of
the child. It was not disputed that about the time the child was conceived, Hedges and his
wife had opportunities of access to each other and were living together and the child was
born during the subsistence of the marriage and on the face of it was a legitimate child. It
was held that the presumption of legitimacy which arises when a child is born in wedlock can
be met only by some kind of definite proof that sexual intercourse between husband and
wife did not or could not take place at the time the woman conceived. Evidence that the
child has physical characteristics which suggest Mongolian paternity is not in itself sufficient
to constitute such proof.

PATERNITY VS LEGITIMACY:
CAS v MPPL & Anor [2019]​ 2 CLJ 454
- The Malaysian Court of Appeal had the opportunity to consider the question of DNA testing
in relation to section 112.
- The Court of Appeal held that in determining whether a paternity test ought to be ordered,
the court must have regard to the ‘best interests’ of the child, which in this instance is the
right to know who his or her biological parents are.

Ishini
A process known as legitimation can be used to make an illegitimate child legitimate.An illegitimate
child may be legitimated either by statute or by procedure.
In Malaysia there are three ways in which an illegitimate child may become legitimate
1. Under the LRA
- Section 75(1):​ a child of a voidable marriage shall be deemed to be born legitimate
- Section 75(2)​: a child of a void marriage shall be deemed to be born legitimate if at the time
of the marrimage one or both parties reasonably believed that the marriage is valid
Case: Yeoh v Chew: The legitimacy of a child is not affected by the invalidity of the marriage as the
parties had reasonably believed that it was a valid marriage.
2. Section 4 of the Legitimacy Act 1961 ( Act 60);
 The Act provide for the legitimation of the children born out of wedlock.Section 2 of the Act
provides that the ‘date of legitimation’ means the date of the marriage leading to the
legitimation or, where the marriage occurred before the prescribed date.Sec. 2 (1) defines
prescribed date according to various states in Malaysia as follows:
- In states of Perak, Selangor, Negeri Sembilan, Pahang: 1st January 1933
- In the states of Johore, Malacca and Penang: 1st July 1936
- In the states of Kedah, Kelantan, Terengganu, Perlis: 23rd March 1961
- In Sabah and Sarawak: 1st January, 1972
Section 4 of the Act states, ‘The marriage of parents to an illegitimate child, before or after
the prescribed date, will render the child, if living, legitimate from the prescribed date or
from the date of the marriage, whichever later, provided that the father was at the date of
the marriage domiciled in Malaysia.’

According to the above provision, where the parents of an illegitimate person marry or have
married one another, whether before or after the prescribed date, the marriage shall, if the
father of the illegitimate person was or is at the date of the marriage domiciled in Malaysia,
render that person, if living, legitimate from the prescribed date or from the date of the
marriage.

Note: Section 4 is. subject to Section 3 which provides for the types of marriage which may
legitimize a child. This includes marriages which are solemnized and registered according to:
- the Civil Marriage Ordinance 1952, or the Christian Marriage Ordinance 1956;
- the Christian Marriage Ordinance or the Marriage Ordinance 1959 of Sabah; or
- The Church and Civil Marriage Ordinance of Sarawak.

Section 5 of the Act prescribes the procedure for legitimization

- Application by way of Petition & Affidavit.

Case: Shanmugam v Pappah[1994] 1 MLJ 144

- The Plaintiff claimed a declaration that he was the only legitimate child of one S. Kanapathy
Sinnathamby (the deceased), and as such was the sole beneficiary of the estate of the
deceased under the Distribution Act 1958. He further claimed a declaration that the
defendant and her three children were not the lawful wife and children of the deceased,
respectively, and hence not entitled to any share of the deceased estate.
- The defendant denied that the Plaintiff was the lawful son of the deceased because his
natural father was the younger brother of the deceased. Accordingly, the defendant
contended that the plaintiff was not entitled to any share in the estate of the deceased.
- The court stated that the plaintiff had the burden of establishing that he was the legitimate
son of the deceased in order to benefit from the deceased estate. Likewise, the burden of
proof was on the defendant to establish that she was the lawful widow and relict of the
deceased and that her three children were the children of her marriage to the deceased.
- The Court held that the plaintiff though he was the son of the deceased failed to prove that
he was the legitimate son,and since the defendant was not the legitimate wife, none were
entitled to succeed to the estate of the deceased who died intestate.
Effects of legitimization under the Legitimacy Act 1961
A legitimated person shall have the same rights and be under the same obligations in respect of the
maintenance and support of himself or of any other person as if he had been born legitimate, and
subject to this Act the provisions of any written law relating to claims for damages, compensation,
allowance, benefit or otherwise by or in respect of a legitimate child shall apply in like manner in the
case of a legitimated person.
See Section 9 of the Act

3. Section 9 of the Adoption Act 1952

- Adoption Act 1952 is an act that provides for the adoption of Children and it applies only to
Peninsular Malaysia ( see: Section 11(1))
- Section 9 of the Act provides another way in which an illegitimate child may be legitimized.
This statutory adoption allows for an illegitimate child to be legitimized.
Sec. 9(1) states:
- Upon a court order for adoption, all rights, duties, obligations and liabilities of the parents or
guardians of the adopted child, with regards to the custody, maintenance and education of
the adopted child shall vest on the adopter as though the adopted child was born to the
adopter in lawful wedlock.
Note: An adoption order ends natural parents’ parental responsibility and vest it in the adoptive
parents. Hence, the adopted child will become the child of his adoptive parents and stand in equal
footing with the natural children of the adoptive parents as if that they are born in the family.

Belinda
Legitimacy in Islamic law
Since Malaysian legal system is recognized as the dual legal system, the Islamic Laws are applied
conjunctively with the Civil law.

Legitimacy of a child under Islamic law is very loosely related to nasab of the child. Nasab denotes a
blood relationship/lineage which connects a person to his parents and ascendants, descendants,
siblings and collaterals. Under Islamic law, a child is legitimate if his nasab is of his father and if
illegitimate, of his/her mother only. Hence, under Islamic law only paternity can give the status of
legitimacy to a child. An illegitimate child has no relationship whatsoever with his/her biological
father under the Islamic law.

The law requires that the child must be born within the marital bondage stated in the Al-Quran ( a
valid marriage).There are a number of ways to prove nasab or lineage but the common method is by
calculating the period of pregnancy. A child who is born in a marriage relationship is legitimate and
ascribed to his biological father if he is born at least six months after the marriage.

The Islamic perception is that a child is legitimate if it is born 6 months after solemnization of
marriage or 2 or 4 years after the husband’s death or divorce
Islamic law also provides that a child born out of an irregular marriage ( fasid marriage) within the
specified period ( as discussed) is also legitimate.
A fasid marriage which confers the status of legitimacy on a child arises in a situation where the
parties to the marriage do not know about the invalidity of the marriage:
 - a marriage which does not fulfil certain conditions such as the woman is still in her waiting
period or Iddah and both are ignorant of the fact that it is prohibited to marry during this
period;
- Similarly, if the child is born from a doubtful intercourse, where the parties believed that
they had a valid relationship as husband and wife, the child is legitimate if born after six
months of the doubtful intercourse.

Under Islamic law, an illegitimate child is a child who was born as a result of adultery or fornication
and their biological parents were not married to one another.
Where the biological parents are legally married, the illegitimate child is the child who was born in
less than six months from the marriage date.
It can be further inferred that an illegitimate child would include a child who was born out of IVF (
in vitro fertilization) where the sperm and ovum were not from a legal husband and wife
relationship, a child born out of surrogacy. However, if the fertilization is carried out with a couple
who are legally husband and wife- it is allowed.
Other categories of illegitimate children include children born out of rape, incest and illegal
relationship.

To what extent are the rights of the child protected?

The pressing issue is the current confusion as to which laws are supreme in our country – civil or
religious? We cannot continue having a split or dichotomous legal system when dealing with
children. Child safety, protection and rights are not a religious issue but an obligatory need, as
children are vulnerable and require society to safeguard their interests.

Children, be it legitimate or illegitimate, must be treated equally as it is not their fault to be born as
such. Children are born with rights according to the UNCRC and no one has the right to rip that from
them. Some of the conflicting areas of rights between a mother and child must be erased so that
they can be given better life such as the right to abortion of a mother which eventually conflicts with
the child’s right to life. However, many children are accorded the same treatment by the
government or at least some attempts have been made. Recently, Ministry launches child sex
offender registry to curb ​sexual crimes against minors. Also,​ many core development policies have
been focusing on the needs of younger generations, especially with regards to children’s best
interest. There are changes happening on child rights in Malaysia, but it is slow. Child focused policy
is important in guiding the authority to formulate plans of actions that can serve and accommodate
children’s best interest alongside the development within the society.