In a landmark decision by a three man bench, the Malaysian Court of Appeal recently has ruled that a Muslim child conceived out of wedlock can take on his or her father’s surname.
Basically the Court of Appeal says that a child conceived by Muslim parents out of wedlock does not have to carry the “Abdullah” surname, a surname which traditionally been used as a surname for any illegitimate child in Islam.
Thus allowing the child to bear the name of his or her father. The decision was made in line with Section 13A (2) of the Births and Deaths Registration Act 1957 (Act 299) which not make any distinction between a Muslim child and a non-Muslim child when it came to the registration of surname.
The particular section states clearly that “The surname, if any, to be entered in respect of an illegitimate child may where the mother is the informant and volunteers the information, be the surname of the mother; provided that where the person acknowledging himself to be the father of the child in accordance with section 13 requests so, the surname may be the surname of that person”.
From this, it is clear that Section 13A (2) of Act 299 does not say that in the case of a Muslim child, his surname must be ‘Abdullah’. Under the existing law, therefore, a child can derives his surname either from his mother’s name or his father’s name.
The decision to register or to put the surname “bin Abdullah” by the National Registration Department (NRD) was based on two fatwa (edicts) issued by the National Fatwa Committee way back in 1981 and 2003, which were in the view of everybody including the court to in conflict with Section 13A(2) of the BDRA, which allows the father of the illegitimate child to make his name as the child’s surname based on this issue, a conflict now arises in our country on the matter.
As for those who have been championing on human rights issues, the recent court of appeal ruling on the matter have been seen by them as a victory and would settle years of battle between them and the NRD on the issue.
As for the Muslim in the country, they seen the recent court of appeal ruling as something which is highly sensitive and will open to many future problems and more conflicts especially in regards Islamic family law matters concerning legitimacy status of the children, marriage, inheritance,and others.
As the recent court of appeal will be subjected to an appeal to Federal Court level, one cannot wonder how the final judgment on the issue will be for our country. Whatever the outcome will be, it is crucial for everybody to remember that putting certain surname or any label to any innocent children will surely creating and inviting social stigma from the society.
Just imagine all the embarrassment and humiliation the innocent child had to endure when he or she started to go to school or facing the public when he or she already grow up. For sure our over caring society will ask so many questions pertaining to the surname which will be carry by the innocent child. It is fair to states here that the children should not inherit the sin of their parent.
At the same time, we should also remember that the issue involve the sanctity of the religion of Islam, thus the issue should and must be carefully and cautiously examine in order to protect the interest of Muslim entirely in the country.
Any final decision on the issue must ensure a win win outcome to all concern parties where the child should be allow to enjoy their life free from any social stigma, labeling or carrying the sin of their parent for the rest of their life and at the same time by allowing them to have a normal life like other children it would not violate any existing Islamic laws and principles as well as the interest of the entire Muslim.
For this to happen, it would best for all parties to the conflict to meet and discuss the issue maturely and professionally. All sides must set aside all their ego and put the aim solely to ensure the better future of the innocent children.