MTMN lwn. NFA [2020] SLRHU 10

Syariah High Court of Selangor (Shah Alam)

Confirmation of Child Illegitimacy 

1.    The Appellant entered into a second marriage with the Respondent on 5 February 2010, in Hulu Langat, Selangor, resulting in the birth of a daughter. The Appellant now seeks to marry ZAJ. The primary grounds for this intention stem from the Respondent’s prolonged absence and lack of communication since November 16, 2017, as well as the Respondent’s initiation of divorce proceedings against the Appellant in the Syariah Subordinate Court of Sepang. The Appellant, a retired government employee, previously held the position of a professor with an income of RM10,262.57. The Appellant asserts the financial capacity to support his current wife, child, and prospective spouse.

2.    The Appellant had appealed to the Syariah High Court of Selangor seeking to validate the status of their first child as their lawful offspring. This child was born three months subsequent to the second marriage between the Appellant and the Respondent, both of whom had previously divorced their respective spouses. The Subordinate Syariah Court had determined that the child lacked legitimacy and therefore  could not be attributed to the father, given that the child was conceived during the ‘iddah waiting period following the woman’s previous marriage. Additionally, the Syariah Subordinate Court invalidated the first marriage of the couple in Thailand on the grounds that the woman was still in her ‘iddah period at the time of the marriage.

3.    At the Syariah Subordinate Court of Shah Alam, the Judge rendered the following decision:

(a)    The Court dismissed the Plaintiff’s claim.

(b)    The Court found that the intercourses between the Plaintiff and the Defendant from 28 February 2004 18 until August 2004 were not illicit.

(c)  The Court ruled that the child named NMT, Birth Registration Number BLXXXXX, is illegitimate and cannot be attributed to the Plaintiff as the father.

4.    The Appellant was dissatisfied with the decision and filed a Notice of Appeal on 1 October 2019, followed by the submission of Grounds of Appeal on 19 December 2019.  Copies of the Notice of Appeal and Grounds of Appeal were duly served on the Respondent on 1 October 2019 and 30 December 2019.  The Appeal Record was then filed on 20 January 2020 at the Syariah High Court of Selangor.

Issue

1.    Whether the Syariah Subordinate Court Judge had erred in fact for making the declaration that the child named NMT is illegitimate?

2.    Whether the Syariah Subordinate Court Judge had also erred in fact by failing to adequately consider the arguments presented by the Plaintiff?

1.    Whether the Syariah Subordinate Court Judge made an error in factual judgment when declaring that the child named NMT is illegitimate?

(a)   The Court in this case referred to and examined the file of Case No: 10500-006-0069-2019. The Court concluded that in the Court order issued on 19 February 2004, it was clearly stated that the Respondent was ordered to observe ‘iddah for a period of three consecutive menstrual cycles starting from 19 February 2004, and the Respondent who cannot be married because she was then still in the ‘iddah period.

(b)   The Court further explained that a woman undergoing ‘Iddah Talak Raj’ie is subject to legal restrictions that must be observed since the marital relationship or bond between the divorced husband and wife through Talak Raj’ie remains intact.  It is forbidden for a woman in ‘Iddah Talak Raj’ie to marry any other man.  If a marriage occurs during such period, it is deemed invalid, and the couple must be separated.  This is in line with the order issued by the presiding judge on 22 July 2004 which declared that the marriage between the parties on 28 February 2004 at the Islamic Religious Council of South Songkhla, Thailand, is void since the Respondent was still in the ‘Iddah period.

(c)   The Appellant and Respondent remarried on 17 August 2004, in Petaling Jaya, Selangor, solemnized by the Respondent’s sibling (“Second Marriage”).  At this point of time, the Respondent had already been six months pregnant from their initial marriage, which occurred on 28 February 2004, in South Songkhla, Thailand. Subsequently, within three months following the Second Marriage, the Respondent delivered their first child at the UKM Cheras Hospital in Kuala Lumpur in June 2004.  The child was born less than 6 months and 2 days after conception.  A crucial fact for the Court to consider before determining the legitimacy of the child is that the child was born three months after the date of the second marriage, and both parties acknowledged during the marriage that the Respondent was pregnant.

(d)   The Court in this case, referred to the book “Bughyah Al-Mushtarshidin“, Beirut, Dar Al-Fikr, 1994, page 386, stated that-

“a child born in less than 6 months is prohibited from being attributed to a man who had sexual intercourse with the mother of the child”.

(e)   The Court also referred to the 57th Meeting of the Fatwa Committee of the National Council for Islamic Religious Affairs of Malaysia made a decision regarding illegitimate children. In the decision made on 10 June 2003, the Committee ruled as follows:

An illegitimate child is characterized as:

(i)            Offspring born outside of marriage, whether resulting from adultery or rape and not stemming from lawful intercourse or servitude.

(ii)           Offspring born less than 6 months and 2 days (according to the Qamariah Calendar) from the date of confirmation (intercourse).

(f)     The Court further explained that an illegitimate child cannot be attributed to the man who caused their birth or to anyone who claims to be the father of the child.  Therefore, they cannot inherit or be inherited from kinship ties cannot be established, and the so-called biological father cannot act as the legal guardian.

(g)   The Court also referred to the Selangor Fatwa Committee dated January 17, 2005, and determined that the legal act (sighah) concerning an illegitimate child according to Islamic law are as follows:

          (i)        Offspring born outside of marriage, whether resulting from adultery, rape, or through scientific methods that contradict with Hukum Syarak.

         (ii)        An illegitimate child born less than 6 months 2 lahzah (seconds) according to the Qamariah calendar from the “Imkan ad Dukhul” and not resulting from “syubhat” intercourse.

   (iii)        Additionally, an illegitimate child includes those born more than 6 months and 2 seconds according to the Qamariah Calendar, within the “Imkan ad Dukhul” timeframe after a valid marriage contract, with evidence under Hukum Syarak indicating the child’s illegitimacy through confession by the parties involved (the husband and wife or one of them), or through the testimony of four qualified witnesses according to Hukum Syarak.

2.    Whether the Syariah Subordinate Court Judge had also erred in fact by failing to adequately consider the arguments presented by the Plaintiff?

(h)   The Appellant and Respondent were firmly convinced that, according to Hukum Syarak, the Respondent was then no longer the wife of her former husband.  The Parties contended that if recalculated from 1997 to 2004, the ‘iddah period of the Respondent had already ended, and therefore the marriage that took place on February 28, 2004, is valid.

(i)     The Court however held that when a wife claims that her husband has divorced her, it is not a claim that is automatically accepted; it is merely an assertion by the wife that her husband has pronounced divorce upon her. Until there is acknowledgment from the husband agreeing with the wife’s claim and after the husband’s pronouncement of divorce is confirmed, only then it can be established that the divorce has occurred.

(j)     The Court also referred to the Syariah Court Practice Directive No. 10 of 2007 concerning the Practice of Recognizing Divorce Outside and Without the Court’s Permission.  The Respondent, in her testimony, stated that the divorce pronouncement in 1997 was not proven as her husband swore an oath to deny her claim.  Therefore, it is evident that the marriage between the parties continues and remains valid according to Syariah law.

(k)    The Court’s stance is to determine that the said first child cannot be attributed to the Appellant as the father.  The Court cannot establish the child’s lineage as a legitimate child because it does not comply with the requirements of Hukum Syarak.  Therefore, the Appellant’s arguments cannot be considered.

2.    The decision of the Syariah Subordinate Court of Shah Alam in Suit No: 10002-006-0280-2019 is upheld.

Key Take Away

1.    The ascription of nasab that is open to declaratory relief arises from a valid marriage and conforms to the conditions and prerequisites so prescribed in the Qur’an and Hadith.  In the present case, the second marriage between the parties was invalid, and that being so, their application for a ruling on nasab must stand dismisse

2.    Lineage, a fundamental aspect, demands meticulous and keen scrutiny.  Prior to delving into the pillars and prerequisites of marriage, due consideration must be given to the marital status and any discrepancies in the primary facts. Lineage ought to be derived from marriages devoid of imperfections or shortcomings.