PETALING JAYA: A family law practitioner today said Parliament would have to amend the Births and Deaths Registration Act (BDRA) if Muslims do not want illegitimate children to carry the surname of their fathers.
However, lawyer Balwant Singh Sidhu said this may prejudice the rights of the natural fathers.
“It will also prejudice the rights of the child as he or she may want to know who the biological father is,” he said.
Balwant said such an amendment may also be challenged as being unconstitutional.
“As the law stands, BDRA imposes a strict statutory duty on the National Registration Department (NRD) to record all deaths and births, legitimate or otherwise, where particulars are available.”
He said this in response to a parenting coach organisation that voiced disagreement with the Court of Appeal ruling against the use of “bin” or “binti Abdullah” in the names of illegitimate children, saying it would encourage sin.
Zaid Mohamad, CEO of Smart Parents, said his organisation feared that more Muslims would engage in zina (fornication) as a result of the ruling.
In its written judgment, the court explained that the NRD had acted outside its powers when it used the surname “Abdullah” to register a Muslim child born out of wedlock, against the mother’s wish to use the father’s name.
Justice Abdul Rahman Sebli, who delivered the judgment, said the NRD had also acted out of its jurisdiction to rely on two fatwas issued by the National Fatwa Committee in 1981 and 2003 in refusing to register the surname of the father.
According to the 2003 fatwa, an illegitimate child (“anak tak sah taraf”) shall not bear the surname (“tidak boleh dinasabkan”) of the father of the child or the person who claims to be the father of the child.
Rahman said the fatwa had no force of law and the NRD must instead act and enforce what was provided for in the BDRA, a federal law passed by Parliament.
Balwant said the BDRA imposed a legal duty on the mother to report the birth of the illegitimate child, not the father.
“As for the naming of the father of the illegitimate child, the mother cannot do it on her own without the consent of the father,” he said.
Balwant said, however, if the father came forward and acknowledged the paternity of the child, the NRD could not refuse to record his name as father of the child unless the mother disputed it.
“In such a case, the father will have to prove paternity by getting a DNA test done,” said the lawyer.
Balwant said, the NRD has to record the biological father if such a test turned out to be positive.
He said the NRD could not abdicate its statutory duty to maintain accurate records, especially if information was made available by the relevant parties.
Balwant said the court was right in its ruling that the NRD was not bound by the fatwa but the BDRA.
He said one of the objections by certain parties was that if the name of the father was recorded in the case of an illegitimate child, it would create havoc in terms of inheritance.
“I do not see that as a problem because the NRD will have the records to establish whether one is legitimate or vice versa,” he said.