Jeffrey Tan J:

In this application by the natural mother (plaintiff) for a declaration that she is the lawful guardian and entitled therefore to the custody and care of her illegitimate infant child (child), a preliminary objection was raised as to the jurisdiction of the court to entertain this application under the Guardianship of Infants Act 1961 (GIA).

According to Mr RR Mahendran for the defendant (natural father), the plaintiff should proceed by way of wardship proceedings. Learned counsel cited the case of Balasingam & Paravathy, Infants Kannanmah v. Palani [1970] 2 MLJ 75 where Raja Azlan Shah J. (as HRH then was) held that the court has no jurisdiction to entertain an application by the natural mother for the custody of her illegitimate children. There the court reasoned, (i) thats. 27 of the CLA 1956provides "In all cases relating to the custody and control of infants, the law to be administered shall be the same as would have been administered in like cases in England as the date of the coming into force of this Ordinance, regard being had to the religion and customs of the parties concerned, unless other provisions is or shall be made by any other written law", (ii) that the law as administered in England as at the date of coming into force of the CLA 1956 was the Guardianship of Infants Act 1886 and 1925, (iii) that Re CT (an infant)[1957] Ch 48 decided that English courts have no jurisdiction to make an order granting custody of illegitimate children to the putative father, and, that the terms 'father' and 'mother' do not extend from the de jureto the putative, (iv) that therefore, under the law of England in 1956, neither the putative father nor de factomother can make an application to court for an order for custody, (v) that the law as administered in England as at the date of coming into force of the CLA 1956 has not been modified by local legislation or case law, (vi) that other than s. 1(2)(a), the GIA makes no reference to illegitimate children and so does not apply to illegitimate children. The court in Balasingam & Paravathyalso held that Re Miskin Rowter[1963] is no authority that the GIA applies or applies not to illegitimate children, and that the remedy is to institute wardship proceedings.

Balasingam & Paravathywas cited in at least three reported decisions, the first of which was T v. O[1992] 3 CLJ 1756; [1992] 3 CLJ 633 (Rep), where the mother applied for an order that she be given custody of and be appointed guardian of her illegitimate infant child, under s. 10 of the GIA 1961, and where a preliminary objection was raised as to the jurisdiction of the court to entertain the application at all, because the infant was illegitimate. Mahadev Shankar J (as he then was) approached that objection from the standpoint of the common law of England and the customary law of Malaysian Chinese, the Married Women and Children (Maintenance) Act 1950, and the Law Reform (Marriage and Divorce) 1976. At p. 175, his Lordship said:

It must be self-evident by now that Re CTis a decision which cannot be applied, across the board, to the Malaysian situation. The question of legitimacy can be a complex one.

Of course in a case where illegitimacy is clear, and there never was any question of a marriage either de factoor dejure, I would respectfully agree with the court in Re Balasingam and Paravathy, but only to the extent that the natural mother of an illegitimate child is the person in whom the parental rights and duties will vest exclusively, in the absence of a court order.

In other words, Mahadev Shankar J said he agreed with the court in Balasingam and Paravathythat the natural mother of an illegitimate child is the person in whom the parental rights and duties will vest exclusively. But the court in Balasingam and Paravathydid not say, with respect, that the natural mother of an illegitimate child is the person in whom the parental rights and duties will vest exclusively. If the qualification is therefore