BER: MIMZ [2023] SLRAU 3

Syariah Court of Appeal (Perlis)

Application for Validation of Child Legitimacy

1.    A wedding ceremony took place between the Appellant MIMZ and NJMN on 9 September 2021 at the bride’s residence, which was located at No. 1X, Jalan X, Taman Firdaus, 01000 Kangar, Perlis.

2.    On 21 January 2022, the Appellant’s spouse delivered a child named NAAM (the “Child”).  The Child was born at the INS Specialist Centre Sdn Bhd.

3.    With the approval of both the Appellant and the Child’s mother, the Appellant registered the Child’s name under the patronymic of AM at the Perlis State Registration Department during the birth registration procedure.

4.    The Appellant submitted an application at Syariah High Court of Perlis for a Mal Case on 28 January 2022.  The application sought an order to legitimize parentage for a seven-day-old kid named NA.  The Appellant asserted that the infant is the Appellant’s biological offspring.

5.    On 25 March 2022, the Syariah High Court of Perlis issued the verdict as below-

(a) The request made by the Applicant to legitimize and patronymically affiliate a female child named NAAM, who was born to NJMN on January 21, 2022, at the INS Specialist Centre Sdn Bhd, located at 640-641 Jalan Pintu Sepuluh, 05100 Alor Setar, Kedah, has been denied by the Court.

(b) Since the kid was born somewhere other than in the state of Perlis, more especially in the state of Kedah, the Court does not have the authority to consider this application.

6.    The Appellant submitted an appeal to the Syariah Court of Appeal in light of their discontent with the ruling of the High Syariah High Court of Perlis.

1.    Whether the learned Judge erred in law by denying the jurisdiction of the Court solely on the ground that the Child was born outside the state of Perlis, whereas the birthplace of an individual is not determinative of their legal status?

2.    Whether the learned Judge erred in law by denying the parties’ right to act in accordance with the promulgated fatwa, despite the Court itself acknowledging that the parties are bound by such fatwa and the Court is required to recognize the promulgated fatwa?

1.    Whether the learned judge erred in law by denying the jurisdiction of the Court solely on the ground that the Child was born outside the state of Perlis, whereas the birthplace of an individual is not determinative of their legal status?

(a) In this case, the Court referred to Section 2 and Section 4 of Islamic Family Law Enactment 2006 (Enactment 7) provides that-

Interpretation

“resident” “means permanently living or ordinarily residing in a particular area”.

Application

4. Save as otherwise expressly provided, this Enactment shall apply to all Muslims living in the State of Perlis who are living outside the State”.

(b) Concerning the Appellant’s residence, the Judges of the Syariah Court of Appeal believed that the learned trial Judge at the High Syariah Court adequately defined and clarified the issue.  Nevertheless, the trial Judge erred when he determined that the Appellant lacked the authority to apply because the Child was born outside of Perlis.  The trial Judge erred in this regard when he equated the Appellant’s residence or place of habitation with the place of birth of the child.

(c)  Therefore, in light of the aforementioned provisions, the panel of Judges unanimously concurred with the appellant’s contention that it has locus standi to file this application because the Appellant resided in the state of Perlis.

2.    Whether the learned Judge erred in law by denying the parties’ right to act in accordance with the promulgated fatwa, despite the Court itself acknowledging that the parties are bound by such fatwa and the Court is required to recognize the promulgated fatwa?

(d) In this case, the Appellant has cited the following fatwa:

“A child born less than 6 months after his mother’s marriage can be attributed to her husband unless denied by the husband himself.”

(e)  The Perlis State Fatwa Committee issued the aforementioned fatwa under Section 48 of the Administration of Islamic Religious Affairs Enactment 2006 and, upon approval by His Majesty the Ruler of Perlis, was promulgated in the Perlis State Government Gazette with reference number Volume 56 No. 2 dated 17 January 2013.

(f)   The Court in this case referred to the case Majlis Agama Islam Negeri Pulau Pinang v. Syed Idross Syed Hassan & Others (Trustees of the Estate of Sheik Eusof Sheik Latiff) (Appeal Case No. 07000-041-0006-2018].

(g)    The Judges in this case agreed with the opinion of the Syariah Court of Appeal of the State of Pulau Pinang, which affirmed that the Court cannot be interpreted as “a Muslim” under Section 49(1) of the Administration of Islamic Law Enactment 2006, and the Judges in this case also concurred with the decision of the Syariah Court of Appeal of the State of Pulau Pinang which determined that a Fatwa is not binding on any Court.

(h)     Section 49 of the Administration of Islamic Law Enactment 2006, (Enactment 4) provides that-

(1)  Upon its publication in the Gazette, a fatwa shall be binding on every Muslim in the State of Perlis as a dictate of his religion and it shall be his religious duty to abide by and uphold the fatwa, unless he is permitted by Hukum Syarak to depart from the fatwa in matters of personal observance  .

(2)  A fatwa shall be recognised by all Syariah Courts and Syariah Appeal Court in the State of Perlis of all matters laid down therein.

(3)  Upon its publication in the Gazette

(i)    The Court in this case also referred to the case of Re Dato Bentara Luar Decd Haji Yahya Yusof & Anor v. Hassan Othman & Anor [1982] 2 MLJ 264 which stated-

Although the Court is not required to accept the fatwa, we are also not required to reject it as Islamic law is the law of the land and we have a duty to explain it.

Federal Court opinion is that the highest Islamic authority in the state, who has spent a lifetime studying and interpreting Islamic law, should not be rejected. The fatwa cannot be appealed to the Sultan in the Executive Council under the relevant State Enactment (Enactment No. 48, now re-enacted by Enactment No. 14 of 1979).  The Federal Court was not trained in this system.

(j)    Based on the aforementioned description, the Judges hold the opinion that the Syariah Court, being an artificial person, is not obligated to abide by any Fatwa. Nevertheless, in cases where the Fatwa has been submitted for deliberation, the Syariah Court ought to grant recognition to it.  The Syariah Court in the State of Perlis shall recognize a Fatwa binding every Muslim in the State of Perlis following Subsection 49 (2) of the Administration of Islamic Law Enactment 2006.  Although this published Fatwa does not serve as a binding or persuasive precedent, it is authoritative and any Syariah Court in the State of Perlis should recognize it.

(k)  The Court in this case referred to the existing provisions of the Islamic Family Law Enactment 2006 (Enactment 7), which fundamentally provides that any child born within a period exceeding six qamariah months from the date of marriage or within four qamariah years after the dissolution of a marriage may be attributed to the father of the child.  This is based on Section 111 of the Islamic Family Law Enactment 2006 (Enactment 7), which provides as follows:

“Ascription of paternity

111. Where a child is born to a woman who is married to a man more than six qamariah months from the date of the marriage or within four qamariah years after dissolution of the marriage either by the death of the man or by divorce, and the woman not having remarried, the nasab or paternity og the child is established in the man, but the man may, by way of li’an or imprecation, disavow or disclaim the child before the Court. “

(l) Therefore, in the Court’s opinion, a harmonious interpretation between the two should be implemented as both are legally formulated through a legitimate legislative process.  Thus, a conflict between the Fatwa and Section 111 of the Islamic Family Law Enactment 2006 (Enactment 7) cannot be construed.

2.    The ruling rendered by the knowledgeable trial Judge at the Syariah High Court of Perlis on 25 March 2022 was overturned.

Key Take Away

1.    The duration of six months two lahzah qamariah , amounting to 180 days plus two seconds, is calculated based on a 30-day month.  This calculation commences from the moment of potential union between the spouses until the birth of the child.

2.    Muslim scholars have decreed that under the Islamic Law, any child born within a span of six months or more from the commencement of marriage between a husband and wife may be legitimized through a lawful marriage. In such instances, the child’s lineage is attributed to the husband of the woman, and all relevant laws concerning lineage are applicable.  Conversely, if the child is born in less than six months from the inception of the marital bond, then their lineage does not extend to the husband of the mother or the woman who bore the child.