THE Federal Court has ruled, in a 4-3 majority decision, that a Muslim child conceived out of wedlock cannot bear the father’s name.

A seven-member bench, led by Court of Appeal president Rohana Yusuf, partly allowed an appeal brought by the National Registration Department (NRD), its director-general and the government to set aside an appellate court decision.

The Court of Appeal, in 2017, ruled that an illegitimate Muslim child could bear his father’s name instead of using “bin Abdullah”.

Rohana, who delivered the Federal Court decision today, said Section 13A of the Births and Deaths Registration Act 1957 (BDRA) does not apply to the registration of births of Malay-Muslim children, as Malays do not carry surnames.

She said Section 13A does not apply to the Malay naming system, and “does not enable Muslim children to be named with the personal name of a person acknowledged to be the father”.

However, she issued a consequential order for the NRD director-general to remove “bin Abdullah” from the birth certificate of the child in the said case.

“The name of the first respondent without ‘bin Abdullah’ shall remain.”

Rohana held that the NRD director-general cannot impose the National Fatwa Committee’s edict with regard to the case as there is no fatwa gazetted on naming an illegitimate Muslim child.

Rohana, Chief Judge of Malaya Azahar Mohamed, and Federal Court justices Mohd Zawawi Salleh and Idrus Harun made the majority decision, while Chief Judge of Sabah and Sarawak David Wong Dak Wah, and Federal Court justices Abang Iskandar Abang Hashim and Nallini Pathmanathan were the minority.

The child in question was born less than six months into his parents’ marriage, and as such, is seen as illegitimate under shariah law.

His parents applied to NRD under Section 13 of BDRA to have the father’s name on the child’s birth certificate, but the department refused on the grounds that the boy was conceived out of wedlock.

The parents then filed a judicial review application at the high court, but it was dismissed on August 4, 2016.

On May 25 the following year, the Court of Appeal allowed the judicial review to compel the NRD director-general to replace “bin Abullah” with the name of the child’s father. – Bernama, February 13, 2020.