PUTRAJAYA: A child who is conceived by Muslim parents out of wedlock can bear his or her father's name, the Court of Appeal ruled.
In its landmark judgement today, a three-man Court of Appeal panel unanimously made the decision after allowing an appeal by a seven-year-old boy and his parents.
Judge Datuk Abdul Rahman Sebli, who presided, wrote in his judgement that the National Registration Department (NRD) director-general had acted irrationally and outside the scope of his power in registering 'Abdullah' as the boy's last name in the birth certificate and in setting aside the parent's wish to register the father's name.
"It is important to note that the Births and Deaths Registration Act 1957 (BDRA) makes no distinction between a Muslim child and non-Muslim child and Section 13A (2) does not say that an illegitimate Muslim child must be treated differently from a non-Muslim child when it comes to the registration of a surname.
"Specifically, Section 13A(2) does not say that in the case of a Muslim child, his last name must be 'Abdullah'," he said, adding that a last name is nothing more than the name borne in common by members of the family, as distinct from the first name.
The panel which also comprised judges Datuk Tengku Maimum Tuan Mat and Datuk Zaleha Yusof also ruled that the fatwa (edict) by the National Fatwa Committee issued on this does not affect the law.
"Under the law therefore (and we are talking about civil law and not syariah law), a child derives his last name either from his mother's name or his father's name.
"If he is an legitimate child, Section 13A (1) applies. If he is an illegitimate child, Section 13A (2) applies," Abrul Rahman wrote in allowing the appeal.
In 2003, the National Fatwa Council decided that an illegitimate child (“Anak Tak Sah Taraf”) cannot take on 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 from the marriage of their parents.
"This directly conflicts with Section 13A (2) of the BDRA, which allows for the name of the person acknowledging himself to be the father of the illegitimate child to be registered as the last name of the child, if he so requests," Abdul Rahman said in his 28-page-judgement.
On Sept 3, 2015, the parents of the child who requested to for their identities be made anonymous had filed a judicial review at the High Court but their application was dismissed on Aug 4, last year.
The Muslim couple were legally married on Oct 24, 2009 and the child was born on April 17, 2010 which is five months and 27 days (according to the Islamic Qamariah calender) from the date of their marriage.
The period was short of a few days before the six months period to legitimise the birth of a child.
Their child's birth was only registered two years later and they had jointly applied to the NRD for the name of the father of the child to be registered as the last name in the birth certificate.
The NRD then refused to register the name on grounds of the fatwa.