N lwn. A [2023] SLRAU 33

Perlis Syariah Court of Appeal (Kangar)

Appeal for the Confirmation of the Legitimacy of the Child

1.    The Appellant and Respondent were married in July 2017 at the Islamic Religious Council of Songkhla Province, Thailand. The Appellant subsequently gave birth to a daughter (the child) at a hospital in Selangor.

2.    The Appellant and Respondent named the child with the patronymic “binti A N” based on the mutual agreement of both parties during the child’s birth registration.

3.    However, in October 2021, the Appellant applied to the Syariah High Court (SHC) of Perlis for confirmation of the legitimacy of the Child.

4.    The SHC dismissed the application on the grounds of lack of jurisdiction, as the court determined it had no authority over cases involving children born in Selangor, and its jurisdiction was limited to children born in Perlis.

5.    Dissatisfied with the decision of the SHC of Perlis, the Appellant filed a Notice of Appeal in December 2021 in the Syariah Court of Appeal, Perlis, on the following six grounds:

i.              The Honourable Judge erred by ruling the Syariah High Court had no jurisdiction, despite acknowledging the parties’ domicile in Perlis.

ii.             The Honourable Judge erred by denying jurisdiction based on the child’s place of birth outside Perlis, as domicile status is not determined by birth location.

iii.            The Honourable Judge erred by disregarding the parties’ right to practice the gazetted fatwa, which they are bound by.

iv.           The Honourable Judge erred by suggesting the application could be made in Selangor, while the parties are domiciled in Perlis and subjected to Perlis law.

v.            The Honourable Judge erred by giving undue weight to the child’s place of birth in rejecting the application, despite acknowledging in the judgment that it is not relevant to legitimization.

vi.           The Honourable Judge erred by stating the National Registration Department has full authority over name registration, referencing a law that does not apply in this case, as the Federal Court’s decision was based on the fatwa of the parties’ domicile, Johor, which was silent on the “bin” issue for illegitimate children.

(a) The First, Second, Fourth and Fifth Grounds of Appeal

(i)    The Court reviewed the first, second, fourth, and fifth grounds of appeal, finding them to share common facts and addressed them together.

(ii)   The Court held that the Appellant and Respondent are permanent residents of Perlis.

(iii)  The Court held that while the Honourable Trial Judge correctly addressed the Appellant’s domicile, the Judge erred in ruling that the Appellant had no jurisdiction to file the application due to the child’s birth outside Perlis, incorrectly comparing the place of birth with domicile.

(iv) The Court held that jurisdiction depends on the applicant’s domicile, not the place of birth, referencing subsections 4 and 2 of the Islamic Family Law Enactment 2006 [“Enactment 7 of 2006”].

 

Interpretation

2. (1) In this Enactment, unless the context otherwise requires—

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

[Emphasis Added]

Application

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

(v)  As such, the Court in this case held that the Appellant and Respondent are domiciled in the State of Perlis and have locus standi to file this case.

[Emphasis Added]

(b)   The Third Ground of Appeal.

(i)  The fatwa referenced by the Appellant in this case is as follows:

“A child born less than six months after the mother’s marriage may be attributed to the mother’s husband unless denied by the husband.”

(ii)    The above fatwa was issued by the Perlis State Fatwa Committee under section 48 of the Islamic Religious Administration Enactment 2006. After being approved by His Royal Highness the Ruler of Perlis, it was gazetted in the Perlis State Government Gazette with reference number Vol. 56 No. 2 dated 17 January 2013.

(iii)   Pursuant to section 49 of the Administration of the Religion of Islam Enactment 2006, a gazetted fatwa constitutes religious verdict for every individual residing in the State of Perlis and is binding on all Muslims in Perlis. The Syariah Court must give recognition to the gazetted fatwas.

(iv)   The Court held that a fatwa issued in accordance with section 48 of the Administration of the Religion of Islam Enactment 2006 [“Enactment No.4 of 2006”] is binding on all Muslims domiciled in the State of Perlis.

(v)    The Court referred to Enactment 7 of 2006, which essentially states that any child born more than six lunar (qamariah) months from the date of marriage or within four lunar (qamariah) years after the dissolution of a marriage may be attributed to the father of the child. This is based on section 111 of Enactment 7 of 2006, which provides as follows:

“ 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 of 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.”

[Emphasis Added]

(vi)        The Court held that section 111 of the Enactment 7 of 2006 applies to married couples, whether divorced or widowed, to determine paternity for children born more than six lunar (qamariah) months after marriage or within four lunar (qamariah) years of dissolution. The fatwa referenced specifically applies to children born less than six months after marriage, allowing them to be attributed to the mother’s lawful husband.

(vii)         Therefore, children born less than six months to parents domiciled in Perlis may apply to the Court for an order to comply with the fatwa in Perlis, which permits such children to be attributed to the father.

(c) The Sixth Ground of Appeal

(i)            In this matter, the Court referenced the case of DNR v. A Child’s case, [2020] 4 CLJ 731. The Federal Court’s ruling in that case established an important principle: there can be differences between the religious rulings (fatwas) issued by individual states in Malaysia and those issued by the National Fatwa Council. A fatwa from the National Fatwa Council does not automatically become legally binding in a particular state unless that state formally adopts it as its own. In other words, each state has the authority to decide whether to accept and enforce a National Fatwa within its jurisdiction.

(ii)          Further, in DNR v. A Child’s case, the Federal Court clarified the role of the Department of National Registration (DNR) when issuing birth certificates for Muslim children. The Court held that the DNR, through its Director-General, may refer to applicable Islamic legal provisions in carrying out its duties. However, in this specific case, the Director-General erred by relying on a fatwa issued by the National Fatwa Council that had not been adopted by the state of Johor. This action was deemed to overstep the authority of the Johor State Fatwa Committee, as it is not the Director-General’s role to determine whether a National Fatwa applies to individuals. That decision lies with the relevant state religious authorities.

(iii)         The Court, in this present case, also decided that there is another ruling from the 52nd/2021 meeting of the Perlis State Fatwa Committee, held on 19-20 March 2021 / 6-7 Sha’ban 1442, which is relevant to the issue in this case. The fatwa issued relates to Inheritance, Marriage Guardianship, and Mahram Status for Illegitimate Children. The fatwa states as follows:

“A child who has been attributed to their father by the court shall inherit the father’s estate, and the rules of guardianship and mahram status (mahram relationship) shall apply.”

(iv)         The Court held that the child was born in November 2017 following the marriage between the Appellant and the Respondent in July 2017. Both the Appellant and the Respondent acknowledged that the child is the result of their union and that they remain in a valid marital relationship.

2.    The decision of the Honourable Judge of the Perlis SHC dated 13 December 2021 is hereby annulled.

3.    The child is attributed to the Respondent, and the Perlis State Registration Department is hereby instructed to implement this order.

4.     The child, being attributed to the Respondent, shall inherit the estate and the rules of guardianship and mahram status (mahram relationship) shall apply.