The Position Of Illegitimate Child: A Legal Perspective

 

  1. INTRODUCTION

Nowadays, the phenomenon of a child born out of wedlock or according to the legal term known as illegitimate child is raising concern and it has become a common in our society.

Section 2 of the Islamic Family Law (Federal Territories) Act 1984 (Act 303) defines an illegitimate child as a child born out of wedlock but not as a result of syubhah intercourse[1].

What actually determines the position of an illegitimate child in the view of Syariah law?  Firstly, it is to determine of the lineaged (nasab) of the child.  In general, there are three approaches in determining nasab which are through marriage, witness testimony and confession (pledge).  In a situation where the child’s nasab cannot be determined through the above methods, the child’s nasab cannot be given to his father and the child will be considered as an illegitimate child.  In addition, the father cannot become the wali of that child and the child cannot inherit his/her father’s estate.

  1. LEGAL PROVISIONS

            There are several provisions provided under Act 303 in order to determine an illegitimate child.  Section 110 of Act 303 provides-           

“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 within four qamariah years after dissolution of the marriage either by death of the man or by divorce, the woman not having remarried, the nasab or paternity of the child is established in the man, but the man, by way of li’an or imprecation, disavow or disclaim the child before the Court.[2]

Based on the above provision, it can be understood that in the event that a child is born to a woman as a result of his marriage to a man –

  • after six months of marriage qamariah; or
  • within four years of qamariah after divorce,

then a child born within that same period of time is considered to be a legitimate child, unless the father denies the child’s nasab in the Syariah Court.  This means that, if the child is born after that period stated above, ie. after four months of marriage, then the child will be considered as an illegitimate child and cannot be established under the paternity of the father.

            Section 111 of Act 303 also explains that if a child is born after four years of qamariah from the date the marriage of his mother  is dissolved (i.e. whether  it is by death or divorce), then the man is not entitled to be the father of the child unless the man or any of his heirs insist that the child is his son/daughter.[3]

Whereby if a child is born after the expiry of the iddah period, Section 112 of Act 303, provides:

 

Where a woman, not having remarried, makes a declaration that the        period of ‘iddah has been completed, whether the period is for death or divorce, and     she is subsequently delivered of a child, the paternity of the child shall not be ascribed to her husband unless the child was born less than   four qamariah years from the date of the dissolution of the marriage either by the death of the husband or by divorce.[4]

However where a man has syubhah sexual intercourse with a woman, and  subsequently that woman delivered a child between the period of six qamariah months to four qamariah years after such intercourse, the paternity of the child shall be ascribedto the man.  (Section 113 of Act 303)[5].

  1. ACKNOWLEDGMENT OF LAWFUL CHILD

Section 114 of Act 303 provides for the conditions for the adoption of lawful children.     Where a man acknowledges another, either expressly or impliedly, as his lawful child, the paternity of the child shall be established in the man, if the following conditions are fulfilled, that is to say, i.e.-

(a) the paternity of the child is not established in any one else;
(b) the ages of the man and the child are such that filial relationship is possible between them;
(c) where the child is of discreet age, the child has acquiesced in the acknowledgment;
(d) the man and the mother of the child could have been lawfully joined in marriage at the time of conception;
(e) the acknowledgment is not merely that he or she is his son, but that the child is his legitimate son;
(f) the man is competent to make a contract;
(g) the acknowledgment is with the distinct intention of conferring the status of legitimacy;
(h) the acknowledgment is definite and the child is acknowledged to be the child of his body.

If these conditions are not met then the acknowledgment is unlawful and the child shall not be considered as the lawful child of the man.

  1. RIGHTS OF AN ILLEGITIMATE CHILD

 

  • Nasab and name

 

An illegitimate child should be nasab to his mother. The registration of the child’s name will be based on the laws, guidelines or fatwa gazetted in the state where the mother resides.  As such –

  • Penang has gazetted on 27 October 2005 that the surname of the illegitimate child either followed by the marriage of the couple or not should be attributed to “Abdullah”[6]; and
  • the Federal Territory gazetted in 2017 that the surname of the illegitimate child is attributed to Abdullah or any name that started with Abdu such as “bin Abdul Ghani”, “bin Abdul Rahman”, or “bin Abdul Latif”[7].

The matter regarding the naming of an illegitimate child born by a Muslim woman has been decided by the Federal Court of Malaysia.  On 13 February 2020, Federal Court of Malaysia in the case of Jabatan Pendaftaran Negara & Ors v. Seorang Kana-Kanak & Ors; Majlis Agama Islam Negeri Johor (Pencelah)[8] with  a majority decision of 4-3 has decided that an illegitimate child’s surname should not be attributed to his biological father but can be attributed with 99 names of Allah.

The Federal Court in the above case propounded that the mother and father of the child are Muslims and thus are subjected to or bound by Syariah law in the state where they reside which is in Johor.  Therefore, the illegitimate child’s surname cannot  be attributed to his father because it contradicts the Islamic and Syariah law in Johor.

However, the Court also found that the child’s surname was Abdullah. This naming is in accordance with  the decision made by  the Muzakarah of the  National Fatwa Committee of Islamic Religious Affairs for the first time which convened on 28-19 January 1981, where it was decided that an illegitimate children should be ʿbin/binti Abdullah’.  However, this fatwa was not gazetted in Johor.  Therefore, the Court ordered the National Registration Department to remove ‘bin Abdullah’ from the child’s name and retain his name only.

  • Nafkah

 

According to Section 80 of the Act 303, the maintenance of an illegitimate child lies upon the mother except for a child born as a result of rape.

 

  • Estate

 

An illegitimate child can inherit his mother’s estate and his mother can inherit the estate of an illegitimate child.  However, the child cannot inherit the estate of his biological father.

 

  • Custody

 

The child’s biological mother is responsible for the custody of the child.  In fact, his custody will also handed over to his birth mother.  In the event that the illegitimate child is a female, her wali for her marriage will be wali hakim since she does not have wali nasab.

 

  • Marriage

 

There is no restriction for an illegitimate child to marry his spouse provided that the marriage meets the legal requirements and conditions of marriage.

 

  • Mahram relationship

 

The illegitimate child has a mahram relationship with his mother’s family only and not with the family members of the father.

 

  • Death

 

An illegitimate child who died before puberty will follow his mother’s religion.

  1. CASES RELATED TO THE CHILD’S LEGAL STATUS

In the case of Ismail Bin Ishak v Kalam Binti Mamat (1995)[9], where there is a declaration that the child born to the Defendant is not the Plaintiff’s child,   the Plaintiff then seek the Court to declare that since the child is not his child, the child’s maintenance is not the Plaintiff’s responsibility.

In this case, the parties were divorced on September 28, 1985.  Later on September 23 1989, the Defendant had given birth to a child and also claimed that the child is the Plaintiff’s son.  This claim was based on the grounds that the parties had  ruju’ and reconciled during the iddah period of the Defendant. However, this claim was refuted and denied by the Plaintiff.

The court decided that –

  • The child is born after four years from the date of divorce. Therefore, according to Syariah law, the child should not be nasab to the Plaintiff.
  • According to Mazhab Shafi’i, a husband who wants to ruju’ his wife must pronounce ruju’. However, the Defendant was not able to prove that the parties have ruju’during the iddah period. Thus, the child’s nasab cannot be established under the Plaintiff.
  • Since the child is not the Plaintiff’s child, the Plaintiff is not responsible for the child’s maintenance.

Following that, in the case of Wan Azmi v Nik Salwani (1990), [10]  Wan Azmi and Nik Salwani was married on 29 June 1987. However, on 21 December 1987 they  divorced at the Kadi Court, Tumpat, Kelantan.  Soon after, on 18 March 1988 Nik Salwani gave birth to a child who was alleged to be the son of Wan Azmi.

Nik Salwani further filed a claim for nafkah of child support and during pregnancy in the Kota Bharu Kadi Court against Wan Azmi.  However, Wan Azmi seek for the Court to make a declaration order that the child was not his.

The Court in this case ruled that the child was indeed a legitimate child and Wan Azmi is the paternal father of the child.  Wan Azmi’s application was rejected by the Court based on the following grounds:

  • there is an evidence that Wan Azmi had intercouse with Nik Salwani and as a result, a child was born after six months of that intercourse.
  • the denial by Wan Azmi that the child is not his son was only made after Nik Salwani claimed for the maintenance of the child.

Further, in the case of Fatimah binti Abdullah and Another v Mat Zin bin Kassim (1999[11]), the First Plaintiff (Fatimah binti Abdullah) married the Defendant on 1 November 1976 and divorced on 11 December 1976.  During the period of the marriage, the Parties had intercourse for more than five times.  On 26 November 1977, the First Plaintiff gave birth to a child named Zainal Abidin bin Mat Zin, the Second Plaintiff.   The issue for this case is whether the Second Plaintiff is the son of the Defendant.  The Defendant denied that the Second Plaintiff was his son and claimed that throughout his marriage to the First Plaintiff, they never had any intercourse.

The Court in this case then decided and established that the Second Plaintiff nasab to the Defendant by taking into account that during the marriage of the First Plaintiff and the Defendant for 41 days, there was intercourse between the First Plaintiff and the Defendant for 5 times, and the Second Plaintiff was born more than six months from the date of such intercourse.

  1. CONCLUSION

To conclude, the issue of nasab and the child legal status should not be taken lightly. Islam places great emphasis on the issue of nasab and child legal status because the rights of an illegitimate child is not the same as the legitimate child.  The child’s legal status also has a significant impact on the child especially regarding the issue of guardianship and inheritance.

Prepared by,

Nur Syaheerah & Nurul Sarah Jasmina

MESSRS MISYAIL OTHMAN & CO

[1] Section 2 Act 303

[2] Section 110 Act 303

[3] Section 111 Act 303

[4] Section 112 Act 303

[5] Section 113 Act 303

[6] Penang Gazette, 2005 (Pg. P.U. 19, Jil. 94 No. 22).

[7] Federal Territory Gazette, 2017.

[8] [2020] 2 MLRA

[9] (1995) 10 JH 41

[10] (1990) 19 JH 192-194

[11] (1999) 14 JH II 225-234

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