PUTRAJAYA – The Federal Court, in a majority 4-3 decision, ruled that a Muslim child conceived out of wedlock cannot bear his father’s name.
The seven-member bench led by Court of Appeal President Datuk Rohana Yusuf allowed partly the appeal brought by the National Registration Department (NRD), its director-general and the government to set aside the appellate court’s decision.
The Court of Appeal, in 2017, held that a Muslim illegitimate child could bear his father’s name instead of using ‘bin Abdullah’.
Justice Rohana who delivered the majority Federal Court decision today said Section 13A of the Births and Deaths Registration Act 1957 (BDRA) does not apply to the registration of births of Malay Muslim children as Malays do not carry any surnames.
She said the Section 13A has no application to the Malay naming system and did not enable the children to be named with the personal name of a person acknowledged to be the father of the children.
Justice Rohana, however, issued a consequential order for the NRD director-general to remove ‘bin Abdullah’ from the birth certificate of the child in the case.
“The name of the first respondent (the child) without ‘bin Abdullah’ shall so remain,” she said.
Justice Rohana held that the NRD director-general could not impose the fatwa (religious edict) of the National Fatwa Committee on the child since there was no fatwa on how to name an illegitimate child was gazetted in Johor.
The majority decision were from Justice Rohana, Chief Judge of Malaya Tan Sri Azahar Mohamed and Federal Court judges Datuk Mohd Zawawi Salleh and Tan Sri Idrus Harun while the minority judgments were from Chief Judge of Sabah and Sarawak Tan Sri David Wong Dak Wah and Federal Court judges Datuk Abang Iskandar Abang Hashim and Datuk Nallini Pathmanathan which upheld the Court of Appeal’s decision.
The child was born less than six months after the parents’ marriage, which is seen as being illegitimate under Syariah Law.
The child’s parents (whose identities have been withheld by the court) applied to the NRD under section 13 of the BDRA to have the father’s name on their child’s birth certificate but the NRD refused to replace it with the father’s name on grounds that the child was illegitimate despite the application was made.
The parents then filed a judicial review application at the High Court but it was dismissed on Aug 4, 2016.
On May 25, 2017, the Court of Appeal allowed their judicial review to compel the NRD director-general to replace the child’s surname ‘Abdullah’ with the name of the child’s father in the birth certificate.