IN Islam, marriage is regarded as an important institution, which ascribes, inter alia, the paternity and identity of child, among others.
Adultery and fornication are considered despicable, and a heavy punishment is prescribed, namely, death penalty and hundred lashes, respectively. All legal schools of Islam are unanimous that the minimum gestation period is six months.
The Syariah Criminal Offences (Federal Territories) Act 1997 provides that a woman who gives birth to a fully developed child within a period of six qamariah months from the date of her marriage shall be deemed to have been pregnant out of wedlock.
If a child is born less than the aforesaid period, or a child is born out of wedlock, the lineage is not established to the putative father.
Hence, Islam emphasises legitimate offspring from a valid marriage, where in a child will have rights, such as the right to inherit, maintenance, the father’s right to act as a guardian of the child and property until maturity, as well as prohibition of its marriage with his sibling, among others.
Further, birth registration and the right to a name and nationality is a civil right of every child as provided in national and international instruments, such as the United Nations Convention on the Rights of the Child, which Malaysia ratified in 1995 and the Child Act 2001, among others.
An illegitimate child can only be related to his mother and has no relationship with the biological father.
The Islamic Family Law (Federal Territories) Act 1984 provides that the custody of illegitimate children appertains exclusively to the mother and her relations.
Even the citizenship status of the illegitimate child depends on the citizenship of the mother. An illegitimate child can still be acknowledged by the father pursuant to the Legitimacy Act 1961 provided that certain conditions set therein are observed.
This act, however, does not extend its application to Muslims.
The conflict between civil and Islamic law has resurfaced with the recent Court of Appeal ruling that allowed an illegitimate child born to a Muslim couple to use his biological father’s name as the surname.
This runs contrary to the fatwa issued by the National Fatwa Committee of the National Council for Islamic Affairs in 2003, which provides, inter alia, that a child conceived out of wedlock cannot be ascribed the name of his father, but must be ascribed the surname “Abdullah”. This is so even when his parents had already been legally married at the time of his birth.
The court noted, inter alia, that the Births and Deaths Registration Act 1957 (BDRA) makes no distinction between a Muslim child and a non-Muslim child; the act does not say that an illegitimate Muslim child’s surname must be “bin Abdullah”; a fatwa cannot prevail over the BDRA, which is a federal law; there is nothing in the act that envisages the application of any substantive principle of Islamic law in the registration process and that the National Registration Department (NRD) director-general’s jurisdiction is a civil one and he is not obligated to apply, let alone to be bound by a fatwa issued by a religious body.
The decision was also partly grounded on the basis that the child has the right to live with dignity, an inviolable right of every individual.
Ascribing “bin Abdullah” to a Muslim child born out of wedlock in the official documents, such as a birth certificate and identification card, carries a stigma where the innocent child would be subjected to humiliation, embarrassment and public scorn for the rest of his life.
It is noteworthy that this country ascribes to a “mixed legal system” or “pluralistic system”, namely, the common law system and Islamic legal system, and this is sanctioned by article 121(1A) of the Federal Constitution. Both systems function within the limits set by the Constitution and there is no one system superior to the other. Hence, the fatwa, a formal legal opinion given by syariah experts with reference to authorities from Islamic text should not be sidelined.
One possible solution to the issue surrounding the registration of a Muslim child born out of wedlock is by way of amendment to the Births and Deaths Registration Act.
It is reiterated that an illegitimate child under Islamic law is not attributable legally to his biological father and this ruling cannot be altered by a mere argument of possible stigma an innocent child would be subjected to.
In the meantime, unless a stay of execution is obtained against the Court of Appeal’s decision pending its determination on appeal by the apex court, the NRD has to execute the order therein. Any failure to comply with the court decision may be in contempt.
PROFESSOR DR ASHGAR ALI ALI MOHAMED
International Islamic University Malaysia.