The court affirmed the power of the High Court to order DNA tests for paternity, emphasizing the child's right to know their biological parents.

Introduction

[1] This is an appeal from the decision of the High Court in Malaya at Kuala Lumpur allowing the respondent's application for a DNA test to be conducted to determine the paternity of a child, that the respondent claims to be the biological father of, despite the mother of the child, the 1st appellant, being lawfully married to the 2nd appellant at the time the child was born.

Background Facts

[2] The appellants are husband and wife. They were lawfully married on 3 March 2007. Whilst being married to the 2nd appellant, the 1st appellant gave birth to a child ("Child C") on 23 June 2008. However, despite the child being born during the subsistence of the 1st appellant's marriage to the 2nd appellant, the respondent claimed that he was the biological father of the child, and not the 2nd Appellant.

[3] The respondent alleged that he had sexual relations with the 1st appellant from sometime before her marriage to the 2nd appellant and that their sexual relations continued during the 1st appellant's marriage to the 2nd appellant, and that it ended only sometime in or around January 2014. The respondent further stated that he was allowed access to Child C from her birth until sometime in December 2013 and that he had provided monies to the 1st appellant for the child's maintenance until sometime in August 2014.

[4] At the material time, both the 2nd appellant and respondent were airline pilots, albeit with different airlines. Whilst, the 1st appellant was a flight stewardess working with the same airline as that of the respondent. The child is now almost 15 years old.

[5] In order to determine paternity, the respondent sought an order from the High Court to have a forensic DNA test conducted to compare and match the respondent's DNA with that of Child C.

[6] The appellants strenuously opposed the respondent's claim.

Appellants' Order 14A Application

[7] The appellants filed an application under O 14A of the Rules of the High 2012 seeking dismissal of the respondent's application on grounds that pursuant to the presumption of legitimacy in s 112 of the Evidence Act 1950 , the fact of Child C being born during the subsistence of a valid marriage between the appellants is conclusive proof that Child C is the legitimate child of the 1st and 2nd Appellants. The High Court allowed the appellants' O 14A application and summarily dismissed the Originating Summons. See: CAS v. MPPL & Anor, for the judgment of the High Court.

[8] However, the Court of Appeal reversed that decision on appeal and held that legitimacy and paternity are two distinct, though, interrelated concepts. The Court of Appeal further held that legitimacy is a question of law, whilst paternity is a question of fact. See: CAS v. MPPL & Anor, .

The High Court Trial And Decision

[9] The matter was then remitted to the High Court for determination of the issue of paternity after full viva voce evidence. The Appellants obtained leave to appeal to the Federal Court. However, having heard the appeal the Federal Court affirmed the Court of Appeal's decision. See: MPPL & Anor v. CAS (02(f)- 14-03-2018(W) - 29 January 2019.

[10] The High Court then directed the Originating Summons to be converted to a Writ action to enable the factual disputes to be determined by way of viva voce evidence, as ordered by the Court of Appeal.

[11] After a full trial of the action, the High Court allowed the respondent's application and ordered that Child C be brought to Hospital Tunku Azizah in Kuala Lumpur for the DNA test to be conducted in order to ascert