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 ORD (ie carries the fathers 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 ORD was born, the parties lived together in Os house in Shah Alam. Both T and O were working. So ORD was taken care of by Os mother C, who lived with them as did Os 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 ORD. 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 ORD 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 ORD, for a half-share of the matrimonial home to be held by her as trustee for ORD, and for the return of a sum of RM2,500 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 ORD 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 (Rev 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 . 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