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2022 MarsdenLR 1200
HIGH COURT MALAYA KUALA LUMPUR
CAS – Appellant
Versus
MPPL & ANOR – Respondent
[Writ No: WA-22F-1-05-2019]
Malaysian Courts have the jurisdiction to order DNA tests for paternity determination, emphasizing the child's right to know their biological parents while distinguishing between legitimacy and paternity.
Headnote:(A) Evidence Act 1950 – Section 112 – Guardianship of Infants Act 1961 – Jurisdiction of the High Court to order a DNA test to determine paternity, affirmed – Legitimacy and paternity are separate concepts; presumption of legitimacy does not preclude paternity inquiries. (Paras 11, 11, 12, 236)
(B) Burden of proof – The plaintiff established a prima facie case showing sexual relations with the 1st defendant during the child's conception, allowing for an order for DNA testing – Paternity involves a question of fact decided through evidence, balancing competing interests is vital. (Paras 56, 288)
Facts of the case: The plaintiff petitioned for a DNA test to affirm paternity of Child C, amidst disputes from the 1st and 2nd defendants regarding his connections to the child, coupled with conflicting testimonies of their relations. (Paras 1-8)
Findings of Court: The plaintiff's claims of having sexual relations with the 1st defendant during conception periods hold substantial credibility, confirming his position as a potential biological father. (Paras 56, 219)
Issues: Whether there was adequate evidence confirming the plaintiff's sexual relationship with the 1st defendant during the relevant time frame, enabling assertion of right to paternity testing. (Paras 18, 287)
Ratio Decidendi: Courts possess the discretionary power to order DNA tests in the best interests of the child, reflecting modern principles that prioritize familial truth and the child’s right to know biological origins. (Paras 288, 301)
Result: Order made for Child C to undergo DNA testing to verify paternity. (Para 308)
Key Points: - (!) (!) (!) (!) - (!) (!) (!) (!) - (!) (!) - (!) (!) (!) - (!) (!) (!) - (!) (!) (!) - (!)
What is the power of Malaysian courts to order a DNA test on a child to determine paternity?
What is the relationship between legitimacy and paternity under Malaysian law, and does the presumption of legitimacy bar paternity inquiries?
What is the appropriate evidentiary standard and burden of proof for a putative father seeking a DNA test on a child to determine paternity?
JUDGMENT
Introduction
[1] Do Courts in Malaysia have the power to order a child to undergo a deoxyribonucleic acid ("DNA") test to determine paternity? Whilst the High Court has held that it does not have the power in civil proceedings to compel adults to produce DNA samples to prove the paternity of a child, the question of whether Courts in Malaysia have the power to make an order for a child to undergo a DNA test to ascertain the child's paternity, has yet to be decided.
[2] The plaintiff had brought this action for an order of Court for a child (referred to as "Child C" or "the Child" in this judgment) to undergo a DNA test to determine her paternity.
[3] The 1st and 2nd defendants are husband and wife. They were married on 3 March 2007. The 1st defendant gave birth to Child C on 23 June 2008, whilst married to the 2nd defendant.
[4] The plaintiff claims that he is the biological father of Child C. He claims to have had sexual relations with the 1st defendant prior to her marriage with the 2nd defendant, and that their sexual relations continued until around January 2014. He also claims to have had access to the Child since her birth until December 2013 and that he had provided monies to the 1st defendant for the Child's maintenance until around August 2014.
[5] In November 2015, the plaintiff filed an originating summons ("OS") seeking, among others, for an order of Court for a DNA test to be conducted on Child C to determine her paternity.
[6] At the material time, the plaintiff was a pilot with a Malaysian based airline and the 1st defendant was an air stewardess/flight attendant in the same airline. The 2nd defendant was a pilot with a Singapore based airline.
[7] The defendants strenuously opposed the plaintiff's application in the OS. They filed an application under O 14A of the Rules of 2012 to dismiss the OS on the grounds that pursuant to the presumption of legitimacy in s 112 of the Evidence Act 1950 (" EA "), the fact that Child C was born during the 1st defendant's valid marriage to the 2nd defendant is conclusive proof that Child C is the legitimate child of the 2nd defendant.
[8] In their affidavits in the OS, the defendants had denied all the plaintiff's claims, including that he had intimate and sexual relations with the 1st defendant prior to and during her marriage to the 2nd defendant.
[9] The High Court allowed the defendants' Order 14A application and summarily dismissed the plaintiff's OS.
[10] The plaintiff appealed the High Court's decision. The Court of Appeal allowed the plaintiff's appeal and set-aside the High Court's order: see CAS v. MPPL & Anor, , ("CAS v. MPPL & Anor (No 1)").
[11] The Court of Appeal held that legitimacy and paternity are two distinct, though interrelated concepts. In its judgment, the Court of Appeal held that legitimacy is question of law, whilst paternity is a question of fact. Thus, the presumption of legitimacy in s 112 of the EA does not bar enquiry into a person's paternity.
[12] The Court of Appeal found that the High Court judge fell into error in having summarily dismissed the plaintiff's application pursuant to s 112 of the EA , without first determining the facts of the case. It held:
"In our reading of the affidavits in this action, it is as plain as pikestaff that the defendants deny many of the allegations made by the plaintiff in respect of his purported relationship with the 1st defendant and Child C. These are crucial matters. The plaintiff's claim ought not to have been dismissed outright in the absence of judicial determination on these crucial issues. Such determination can only be made with full viva voce evidence."
[13] Because of these disputed facts, the Court of Appeal directed that the plaintiff's OS be converted into a writ action to enable the factual disputes to be determined by way of viva voce evidence of witnesses.
[14] The defendants obtained leave to appeal to the Federal Court against the Court of Appeal's decision. On 29 January 2019,
