KUALA LUMPUR: The Malaysian Sharie Lawyers Association (PGSM) will seek to be an intervener if the National Registration Department (NRD) appeals against a Court of Appeal ruling that a Muslim child conceived out of wedlock can take his or her father’s surname.
PGSM president Musa Awang said the case, which involved an illegitimate child, was a serious issue as it would affect the person’s descendants.
“If a father is not legitimised under shariah and he has a daughter, her marriage might not be recognised if the father acted as the ‘wali’ (guardian).
“A marriage can only be legitimate if the father is legitimate under shariah. And that is only the problem at the level of a daughter wishing to marry. What will happen when it comes to the grandchildren?” he said at a media conference at the Federal Territory Shariah Court today.
Musa said the Court of Appeal decision would cause a quandary in family relationships among Muslims in future.
The appellate court, in its judgment released yesterday, ruled that the NRD overstepped its powers when it added the surname “Abdullah” to register a Muslim child born out of wedlock.
Justice Abdul Rahman Sebli, who sat with two other members of the court, said the NRD’s action was a violation of the Births and Deaths Registration Act 1957 (BDRA), which makes no distinction between a Muslim child and a non-Muslim child.
“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,” he wrote in the 28-page judgment.
The child, who was born on April 17, 2010, three days short of the six-month period to legitimise the birth to the couple, was given the surname “Abdullah”.
Based on a 1981 fatwa (edict) by the National Fatwa Committee, the NRD refused the Muslim parents’ request to use the father’s name in the birth certificate.
Another fatwa in 2003, meanwhile, declared that an illegitimate child shall not be given the surname of the father of the child or the person who claimed to be the father of the child.
Abdul Rahman said the fatwa was in conflict with the BDRA, which allows the father of the illegitimate child to make his name the child’s surname.
Musa also said the Court of Appeal ruling would result in confusion in the distribution of assets according to Islamic principles.
“If the biological father of an illegitimate child accepts an inheritance, he will be committing a sin and taking what belongs to someone else. There will be chaos, so we should avoid this before it happens,” he said.
Musa said the stigma in Malay society in using the name “Abdullah” for illegitimate children could be avoided since other names were available.
“There are 99 names used for Allah. It’s just that Malays mostly pick Abdullah. They actually can use other names, such as ‘Abdul Razak, Abdul Muiz, Abdul Qayyun’ after the ‘bin’ or ‘binti’ for illegitimate children,” he said.