Mahadev Shankar J:

This judgment concerns the respective rights of parents of children born out of marriages which have not been solemnized in accordance with the statutory formalities presented by the Law Reform (Marriage and Divorce) Act 1976 (the Act).

On 7 December 1988 the plaintiff T gave birth to a son. She is named as the mother and O as the father in the birth certificate. The son is named O.R.D. (that is carries the father's surname). O claims that he wanted a marriage under the Act, but T refused. She would only agree to a Chinese customary marriage which was celebrated on 27 May 1988. There is no suggestion that either party was married to any one else on that date. After O.R.D. was born the parties lived together in O's house in Shah Alam. Both T and O were working. So O.R.D. was taken care of by O's mother C, who lived with them as did O's teenage brother.

Differences arose between them. On 1 October 1990 T left the house taking with her a substantial part of the domestic furniture and appliances and O.R.D. She went to stay with her mother in Segambut.

She filed this application in April 1991. She is claiming for an order that she be given custody of and be appointed guardian of O.R.D. under s. 10 of the Guardianship of Infants Act 1961, on the ground that O is not a fit person to have custody or guardianship, for maintenance of RM350 per month for O.R.D., for a half-share of the matrimonial home to be held by her as trustee for O.R.D., and for the return of a sum of RM2500 said to be a loan and for costs.

The application is based on evidence contained in an affidavit by T. Every allegation material to this application is being contested by O. Consequently on any view of the matter it will not be possible to make findings of fact on these contested allegations without a full hearing.

However a preliminary objection was raised as to the jurisdiction of this Court to entertain this application at all because O.R.D. was allegedly illegitimate. As a result this matter has acquired deep rooted social implications which makes an enquiry in depth into the legal position desirable.

Section 27 of the Civil Law Act 1956 - Laws of Malaysia Act 67 (Revised - 1972) provides:

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 at the date of the coming into force of this Act, regard being had to the religion and customs of the parties concerned, unless other provision is or shall be made by any written law.

This section is the same as s. 6(1) of the Civil Law Enactment 1937 which was considered in depth in SP Ponniah Pillay v. Senthamarai d/o Villasamy [1954] 20 MLJ 175. The factual similarities makes the decision one of substantial interest. At p. 176 Buhagiar J said:

It may here be pointed out that the obligation of the putative father to maintain the child arises under s. 488 of the Indian Criminal Procedure Code, whose provisions are similar to those in s. 3 of the Local Married Women and Children (Maintenance) Ordinance, 1950 (No. 36 of 1950). I mention this because there are statements in English law books which are taken to be authority for the proposition that in English law the right of a mother to the custody of her illegitimate child arises out of her obligation to maintain her child - formerly under the Poor Laws and now under the National Assistance Act 1948. This is correct only in so far as the rights of the mother at common law are concerned. But as Lord Herschell in Barnardo v. McHugh [1891] AC 388, stated (at p. 398):

It is, however, no longer important to inquire what are the rights of the mother in relation to an illegitimate child at common law. All the Courts are now governed by equitable rules, and empowered to exercise equitable jurisdiction.

The fact, therefore, that under the local law the putative father may be liable to maintain an illegitimate child does not necessarily give him th