Syafinaz Binti Idrus – LLB Second Year Student of Universiti Utara Malaysia

A critical analysis on the case of A Child & Ors v Jabatan Pendaftaran Negara & Ors [2016]
MLJU 1579

Since there was insufficient period of time between the dates of marriage the applicants
and the date of birth Muhammad Ezzac Iskandar to enable paternity to him, the law does not
permitted the child to be named after his father. The child was born in a period less than 6 months
from the date of his parents’ marriage and on this ground alone, the National Registration
Department (NRD) saw it fit and he be deemed to be an illegitimate child despite his parents’
eventual marriage prior to his birth. There is no legal provision for the surname of “Abdullah” in
the first place but local fatwas or religious opinion have defined illegitimate children in Islam to
include those born out of wedlock or those born less than six months from their parents’ marriage
and impose ‘bin Abdullah’ on the birth certificate. In accordance to the said case, the parents of
the child wanted the indicators if illegitimacy removed from the child’s birth certificate to prevent
stigma1.

Contentions on behalf of the child were premised on Section 13 and Section 13A (2) of the
Births and Deaths Registration Act 1957, it states that in the case of an illegitimate child, while his
father is not required to give information in respect of the birth of the child, and that his name shall
not be named in the register as the father of the said child, the Registrar however is legally
compelled to put in the register the name of the father of the said child, irrespective of the state of
his illegitimacy, when there is a request jointly made by both his mother and father2. Summarily,
the law allows a father of an illegitimate child to be entered in the register as the name of the
child’s father, provided that the mother of the child agrees to it. Section 13A (2) of the Births and
Deaths Registration Act 1957 on the other hands states that the surname to be entered in respect
of an illegitimate child may be one of the mother. However, if the father of the child acknowledges

1
I. L., & Malay Mail. (2018, February 08). Lawyer: Couple not trying to legitimise illegitimate child, just removing
'bin Abdullah' stigma | Malay Mail. Retrieved April 21, 2018, from https://www.malaymail.com/s/1572711/lawyer-
couple-not-trying-to-legitimise-illegitimate-child-just-removing-bin

2
Births and Deaths Registration Act 1957 Act 299. (2006). The Commissioner of Law Revision, Malaysia.
himself to be the father of the child in accordance with Section 13 requests so, the surname may
be the surname of the father.

With the greatest of respect, I categorically beg to differ to decision of the High Court.
Whatever the people out there are saying, this is the leap of faith we need to restore the dignity of
a baby or even fetus that may build or destroy our future, depending on how we first react to
existence of that child. In a relation this, the use of the surname of Abdullah does not benefit the
society, but only appeases the National Registration Department (NRD) to point fingers to an
illegitimate child for a lifetime of prejudice. The discrimination towards illegitimate child not only
discriminated by the society, but they have no right to receive nafkah, inheritance, and the issue of
mahram and wali will be raised as well..

At this point of time, I believe that Islamic law is fair and quintessential. Unfortunately,
the Muslims make it imperfect. Technically, the surname of Abdullah will avoid the shame of that
illegitimate child, but typical society will judge the innocent child anyway. I could not help but
wonder why unmarried couple decide to abort or kill their babies? The "Bin or Binti Abdullah" is
partly to be blamed. The idea that an illegitimate child must be given Bin or Binti Abdullah is not
rooted in religion, but in culture and this can be illustrated when Allah SWT created Prophet Isa
(Peace Be Upon Him) without a father for us to learn something from it. But no, we do not learn.
Forcing the children to embrace the “Abdullah” in their names may show a lack of confidence in
oneself in practicing one’s faith or worse still, show a lack of faith in the attractiveness, beauty and
truth in his or her name. Based on social activist lawyer Syed Azmi Alhabshi, he recounted
personal experiences dealing with children out of wedlock. Summarily, it was saddening. Not only
were the children raised in financial and socially insecure background, they were ostracized by
their peers and their teachers. He reported that there were many complaints where a primary school
intentionally segregated children in accordance to their status. One line for legitimate and another
line is for illegitimate.

To conclude that, the outcome of this case will not change an illegitimate child to
legitimate. It only concerns the welfare of the child through his or her name. On the other hand,
the reason that the fatwa was not accepted by the court was that the particular fatwa was not gazette
by the Johor state where the case originated. Therefore, it has no legal force to the parties of the
said case. The court must concern of the child being ostracized by peers and society due to the
societal stigma of the name “Bin Abdullah”. From my own point of view, paternity is a legal
standing. Whatever your name is, you are still illegitimate if you are one, but naming is not a legal
standing per se. People ought not to be punished by the sins of their parents by dooming their
names. I do appreciate the existence of Syariah Law in Malaysia and I still believe that it's still
relevant. However, in order for them to be more relevant, the system must be upgraded, which
means from the appreciation or acceptance of new opinions or fatwa, especially when we know
that our Syariah law doesn't really in compliance of Syafie School of Thoughts.