CAS v MPPL & Anor [2019] 4 MLJ 243

Court: Federal Court (Putrajaya)

Judges: Abang Iskandar, Umi Kalthum and Nallini Pathmanathan JJCA

Date of Judgement: 15 October 2018

Topic: Legitimacy and Paternity under Section 112 of Evidence Act.

2.     The First Defendant was a female who worked as an air stewardess.  The Second Defendant was the First Defendant’s husband and a pilot.

3.     The Defendants wed on March 3, 2007, and on June 23, 2008, the First Defendant gave birth to her daughter (referred to as “child C”).   Hence, Child C was conceived into a legal marriage between the Defendants.

4.     The Plaintiff was a man who worked as a pilot for a living.

5.     The Plaintiff asserted that he had an affair with the First Defendant before her marriage to the Second Defendant, and that it lasted even after their marriage.

6.     When child C was born, according to the Plaintiff, he had occasionally lived with the First Defendant and the child as a family, particularly when the Second Defendant was on duty for flights.

7.     The Plaintiff further claimed that he had been providing “maintenance” for child C to the First Defendant on an ongoing monthly basis.  He asserted that he continued to pay this “maintenance” until the First Defendant shut her Maybank account in around August 2014.

8.     The First Defendant, according to the Plaintiff, stopped permitting him access to child C in December 2013 and their relationship ended in early 2014.

9.     The Plaintiff filed the suit, namely the amended originating summons (‘Enclosure 5’) praying for, inter alia, the court to order a DNA test to determine child C’s paternity and the resulting declaration that the Plaintiff was her father on the ground that it was necessary for child C to know who her birth father was, in case of any medical emergencies that may arose in the future.

10.  The Defendants argued that if the court allowed the Plaintiff ’s declaration on the point of paternity, ie declaring the Plaintiff as the child C’s biological father, the said declaration would render child C as an illegitimate child of the Defendants.

11.  The Defendants accordingly retaliated with an application of their own for the determination of questions of law pursuant to Order 14A of the Rules of Court 2012 and prayed in Enclosure 16, inter alia, that the Plaintiff’s application in Enclosure 5 must be dismissed.

12.  The High Court judge allowed Enclosure 16 and dismissed Enclosure 5 on the grounds that the Plaintiff ’s action in the said Enclosure 5 was without merit and had no legal basis (‘the impugned order’).

13.  Dissatisfied with the decision, the Plaintiff made an appeal.

2.     Whether the declaration of paternity had effect of illegitimising child?

“The fact that any person was born during the continuance of a valid marriage between his mother and any man, or within two hundred and eighty days after its dissolution, the mother remaining unmarried, shall be conclusive proof that he is  the legitimate son of that man, unless it can be shown that the parties to the marriage had no access to each other at any time when he could have been begotten.”   [Emphasis Added]

2.     The Federal Court find the authority to dismantle the proposition which linked paternity and legitimacy when in fact the provision of Section 112 of the Evidence Act 1950 only concerns legitimacy issue.  The Federal Court referred to decision by KC Vohrah J (as he then was) in Chua Kim Suan v Ang Mek Chong [1988] 3 MLJ 231 as follows:

“That brings me to the argument, this time, of defence counsel. He says once it is accepted by the court that the defendant gave birth to Pang Hua then the presumption in s 112 of the Evidence Act 1950 should be invoked that since the birth was during the marriage of the deceased and the defendant it is conclusive that the child is the child of the deceased and that the only way of disproving that is to show that the defendant and the deceased had no access to each other. With respect, the argument of counsel is misconceived. The issue is not one of the legitimacy of the child, whether the child was born in or out of wedlock but whether the child was the issue of one set of lawfully wedded parents or another set of lawfully wedded parents and therefore the provisions of Section 112 of the Evidence Act are not applicable in this case”   [Emphasis Added]

3.     Accordingly, the Federal Court found that Section 112 of Act 56 does not bar enquiry into the paternity of a child and further draw support for this distinction between paternity and legitimacy from the decision of the High Court of Kerala in Babu Remyalayam Veettil v Vidya D/o Santhini Kalathinte Padeetthathil Veettil OP where K Harilal J held as follows:

“The term ‘legitimacy’ employed under Section 112 of the Evidence Act (in pari materia with Malaysian Evidence Act) refers and determines the legal status of birth, ie whether legitimate or illegitimate.  To put it differently, legitimacy of a child is its right to be officially or legally as such.  There, the question in controversy may be whether the child is born in a legally valid marriage or not.  Thus, the presumption of ‘legitimacy’ follows subsistence of a valid marriage and the same is conclusive proof of the legitimate birth of the child, unless it is rebutted by the evidence of non-access. Therefore, no evidence can be adduced for the purpose disproving it, unless and until non-access between the spouses is shown…

Whereas, paternity is the state or fact of being father of a particular child… In short, legitimacy and paternity are different and distinct. In our view, in that enquiry to find out the true fatherhood of a child, the legal presumption as to the legitimacy under Section 112 of the Evidence Act would not bar a scientifically accurate and approved test, if the facts and circumstances of the case tend to make such an enquiry imminently needed.”    [Emphasis Added]

4.     The Federal Court was of the view that the concepts of ‘paternity’ and ‘legitimacy’ should necessarily be separated. The former concerns a question of fact; the latter a question of law.

5.     The Federal Court in this case addressed the argument by the Defendants that a declaration of paternity has the effect of illegitimising a child.  This appears to be the legal conundrum created by Section 112 of the Evidence Act 1950.

6.     The Federal Court held that Malaysian law, and indeed the law of many civilised nations, recognises that a child may in fact be an illegitimate child, but, by operation of the law, the said child may still be considered legally legitimate.

7.     The Plaintiff also relied on article 7 of the United Nations Conventions of the Right of the Child (‘UNCRC’) to argue that the best interests of children require that they have the right to know who their biological parents are. The said Article 7 reads as follows:

“The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and as far as possible, the right to know and be cared for by his or her parents.”

8.     Since the UNCRC has been cited to the Federal Court, Article 3 of the same would be relevant.  The relevant portion of Article 3 reads-

“In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.”

9.     The Federal Court has noted that the international treaties and conventions are not directly applicable to domestic law until and unless they are incorporated into domestic law.

10.  With that being said, where the law is ambiguous, the courts will still be charged with the duty to interpret local statutes in a manner where their ‘language will be in conformity and not in conflict with international law’.

2.      The Federal Court held that Section 112 of the Evidence Act 1950 does not bar enquiries into paternity yet, at the same time, conclusively presumes legitimacy.

3.     The enquiries of paternity did not illegitimise a child.

2.     In a suit where only paternity and not legitimacy is in issue, the law conclusively presumes that the child whose paternity is in question is the legitimate child of the man to whom the mother was lawfully married at the time of the said child’s birth.  The ‘access’ proviso to Section 112 of the Evidence Act 1950 is only invoked if the child’s legitimacy is challenged.

3.     Thus, in determining whether a paternity test ought to be ordered, the court must have regard to the best interests of the child.  ‘Best interests’ here refers to the right of the child to know who his or her biological parents are.  The Court ought not to be concerned solely or wholly with fears of ‘illegitimising the child’.

4.     When the factual disputes have been determined, the trial court can then go on to balance the competing interests of paternity and legitimacy and arrive at a fair and just determination of the matter.