Mohd Hishamudin Mohd Yunus J:

This is an application by a natural mother (the plaintiff) under the Guardianship of Infants Act, 1961 for the custody of her two illegitimate infant children. She had been living together with the putative father (the defendant), and as a result of their relationship, she bore him two children, a boy and a girl. The defendant later left the plaintiff and the children for another woman whom he subsequently married. Ever since the defendant left her, the plaintiff has been supporting the children without any financial assistance from the former.

The defendant appears not to be interested in contesting this application; for although duly served with the originating summons, he has failed to enter appearance as well as to attend this hearing.

Before Re Balasingam & Paravathy, Infants Kannamah v. Pillay, [1970] 2 MLJ 74 our Courts had always assumed that they had the jurisdiction under the Guardianship of Infants Act 1961 to entertain an application of this nature and to make such order as the Court deemed fit. For example, in Re Miskin Rowter, [1963] 1 MLJ 341, which is an application by a natural mother for custody of her illegitimate children under the Guardianship of Infants Ordinance (Cap 16), the Court, acting on such an assumption, granted custody of the children to the mother.

However, in a subsequent case, this assumption was held to be erroneous by the Court. For, in Re Balasingam, it was held by Raja Azlan Shah J (as he then was) that the High Court has no jurisdiction to hear an application by an unwed mother for the custody of her illegitimate children under the Guardianship of Infants Act because the Act does not apply to illegitimate children. In that case, his Lordship after referring to the law of England, in particular, the Guardianship of Infants Act, 1886 and 1925, and the English case of In Re C T (an infant) [1957] Ch 48 said:

It is therefore quite settled that the law of England in 1956 was that neither the putative father nor the de facto mother of an illegitimate infant can make an application to the Court for an order of custody.

The issue now arises as to whether this law is still applicable here or whether it has been modified by local legislation or case law. CASE

The Guardian of Infants Act 1961 does not seem to provide for illegitimate children. The remarkable absence of any reference to illegitimate children other than in the abovementioned s 1(2)(a), would seem to favour the proposition that Parliament intended the Act not to apply to illegitimate children. This proposition is fortified by respondent's arguments on the correct construction of the words "father" and "mother" in ss 5 and 6. Furthermore, adopting the approach taken by Viscount Simonds in Galloway v. Galloway it is safer to say that 'infant' means legitimate infant unless there is some repugnancy or inconsistency and not merely some violation of a moral obligation or of a probable intention resulting from so interpreting the word.

Accordingly, since none of the words "father", "mother" or "infant" can be construed to mean illegitimate infant or the de facto parents of illegitimate children, it must be concluded that the Act does not apply to illegitimate children.

The learned Judge decided not to follow the decision in Re Miskin Rowter, [1963] 1 MLJ 341 on the grounds that that case was no authority on the issue whether or not the Guardianship of Infants Act applies to illegitimate children. According to his Lordship, the Court in that case proceeded on the assumption that the Act applies and therefore it had the jurisdiction to hear the application in question.

There is some support for the decision in Re Balasingam in the subsequent case of T v. O [1992] 2 MLRH 521, [1993] 1 MLJ 168.