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2022 MarsdenLR 2220
HIGH COURT MALAYA SEREMBAN
RATNA DEWI HISHAM LOUIS & ANOR – Appellant
Versus
JABATAN PENDAFTARAN NEGARA & ANOR; MAJLIS AGAMA ISLAM NEGERI SEMBI.... – Respondent
[Originating Summons No: NA-24NCVC-181-08/2021]
The court affirmed that under the Births and Deaths Registration Act 1957, the father's name for an illegitimate child can be registered if requested jointly by the parents, reaffirming the principle established in Leow Fook Keong.
Headnote:(A) Births and Deaths Registration Act 1957 – Sections 13 and 13A – Application for amendment of birth certificate regarding illegitimate child – Court ruled that under Section 13, no father's name can be registered unless jointly requested – Court followed Federal Court precedent in Leow Fook Keong v. Pendaftar Basar bagi Kelahiran dan Kematian, upholding the right to correct birth records based on DNA evidence – Prayer to amend child's name was refused due to lack of evidence of surname. (Paras 11-30).
(B) Fatwa relevance and obligations of registrar under federal law considered – Fatwa does not override statutory obligations regarding registration of illegitimate children. (Paras 20-25).
JUDGMENT
Introduction
[1] This case involved an application to amend the records of the National Registration Department as they pertain to a three-year old child, who is the son of the applicants.
Material Facts
[2] The facts of this case, in so far as they are material to the determination of its merits, are not in dispute. They are as follows.
[3] The first applicant, Ms Ratna Dewi binti Louis Hisham is Muslim. The second applicant, Mr Devan Appadurai, is Hindu. They are in a relationship. They had undergone a traditional marriage ceremony, but is not in material dispute that this marriage is not one that is recognised by the law. Their child was born out of this relationship in March 2019. That Mr Devan Appadurai is the father has been established by a DNA paternity test.
[4] Ms Ratna Dewi applied to register the birth of her son. The birth certificate issued by the National Registration Department (who are the first respondents) recorded the following details:
[5] On 27 February 2020, Ms Ratna and Mr Devan applied to correct the details in the birth certificate of their son. The amendments that they wished to make were (in gist):
(a) to add the name of Mr Devan as the father to their son;
(b) to drop the "BIN" in the name of their son.
[6] This application was rejected by the first respondent on 7 July 2020. The reasons given for this decision was that the couple were of different religions. The material portion of the 7 July 2020 letter stated as follows:
[7] It was common ground that the legitimacy of the child in the present case was to be determined in accordance with Islamic law, and that under Islamic law he is an illegitimate child.
[8] The applicants commenced this originating summons in August 2021.
The Reliefs Sought
[9] The applicants prayed for, among others, the following reliefs:
(a) that it be declared that Mr Devan is the natural or birth father to the child;
(b) that the name of Mr Devan be recorded as the father to the child on his birth certificate and MyKid; and
(c) that the name of the child be amended so that (among others), the word "BIN" is removed from his name and "Devan" be inserted as the surname of the child.
[10] The observation may be made that the applicants have not pursued this present action as a judicial review application.
Analysis
The Application For The Second Applicant To Be Recorded As The Father
[11] The Registrar-General of Births and Deaths is appointed by the Yang di-Pertuan Agong pursuant to s 3 of the Births and Deaths Registration Act 1957 . His principal function is to administer the registration of births and deaths in Malaysia. The Registrar-General is empowered to appoint public officers to be a Registrar of Births and Deaths for a registration area.
[12] Section 13 of the Births and Deaths Registration Act 1957 provides as follows:
Section 13 . Provisions as to father of illegitimate child.
Notwithstanding anything in the foregoing provisions of this Act, in the case of an illegitimate child, no person shall as father of the child be required to give information concerning the birth of the child, and the Registrar shall not enter in the register the name of any person as father of the child except at the joint request of the mother and the person acknowledging himself to be the father of the child, and that person shall in that case sign the register together with the mother.
[13] This provision makes it clear that the father of an illegitimate child is not required to give any information regarding the birth of the child. Further, it prohibits a registrar from registering any person as the father of the child, unless a request has been jointly by the mother of the child and the person acknowledging itself to be the father of the child. Thus, on a strict reading of the plain words of s 13, unless the mother agrees, the details of the father of an illegitimate child cannot be recorded on the register of births.
[14] This, however, was not the construction adopted by the Federa
