JUDGMENTBY: RAJA AZLAN SHAH J

In this case, the applicant applies for custody of her two infant children. There is dispute as to whether she is legally married to the respondent but for the purposes of this case, it will be assumed that there was no valid marriage. The question to be settled before the court can go into the merits of the case is whether this court has jurisdiction to entertain an application by the de facto mother for a custody order under the Guardianship of Infants Act, 1961.

Counsel for the applicant contends that the court has been granted original jurisdiction under section 24(d) and (e) of the Courts of Judicature Act, 1964 in addition to the Guardianship of Infants Act, 1961. Section 24 of the Courts of Judicature Act, 1964 states:

"Without prejudice to the generality of the provisions of the last

preceding section, the civil jurisdiction of every High Court shall

include:--

(d) jurisdiction to appoint and control guardians of infants and

generally over the person and property of infants;

(e) jurisdiction to appoint and control guardians and keepers of the

persons and estates of idiots, mentally disordered persons and

persons of unsound mind."

He argued that under English law, there is no corresponding section to our section 24 of the Courts of Judicature Act, 1964. The case of Re Miskin Rowter [1963] MLJ 341 was cited in which the guardianship of an illegitimate child was given to the natural mother.

Counsel for the respondent contended that it cannot be said that the Parliament did not have illegitimate children in contemplation when drafting the Guardianship of Infants Act, 1961 because section 1(2)(a) specifically mentions illegitimate children and which states as follows:

"Nothing in this Act shall apply in any State to persons professing the

Muslim religion until this Act has been adopted by a law made by the

Legislature of that State; and any such law may provide that--

(a) nothing in this Act which is contrary to the Muslim religion or

the custom of the Malays shall apply to any person under the age

of eighteen years who professes the Muslim religion and whose

father professes or professed at the date of his death that

religion or, in the case of an illegitimate child, whose mother

so professes or professed that religion;"

He further argued that if "mother" in section 6 of the same Act is given a wider interpretation to mean de facto mother, then "father" in section 5 would also include a putative father. Question may arise as to who the putative father is so that the sections cannot refer to the putative father and mother and accordingly, mother must mean legal mother and father must mean legal father.

In determining the issue before this court, the first question that arises is whether English law on this subject is applicable which must then be followed by a consideration of how far this English law, if applicable, has been eroded by the Guardianship of Infants Act, 1961, other legislation and local case law.

Section 27 of the Civil Law Ordinance, 1956 reads:

"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

Ordinance, regard being had to the religion and customs of the parties

concerned; unless other provision is or shall be made by any written

law."

What then was the law of England on this date? By the Guardianship of Infants Acts, 1886 and 1925, the court may, upon the application of the mother as, of the father, make such order as it thinks fit with regard to the custody of the infant and the right of access thereto of either parent, having regard to the welfare of the infant and to the conduct of the parents and to the wishes of the mother as well as th