IN a landmark decision by a three-man bench, the Court of Appeal recently ruled that a Muslim child conceived out of wedlock can take on his or her father’s name.

Basically, the Court of Appeal says a child conceived by Muslim parents out of wedlock does not have to carry “Abdullah” as his or her surname, as is traditionally done for illegitimate children 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 does not make any distinction between a Muslim child and a non-Muslim child when it comes to the registration of surnames.

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 in the case of a Muslim child, his or her surname must be “Abdullah”.

Under the existing law, therefore, a child can derive his or her surname either from the mother’s name or father’s name.

The decision to register an illegitimate Muslim child as “bin/binti Abdullah” by the National Registration Department (NRD) was based on two fatwas issued by the National Fatwa Committee way back in 1981 and 2003, which were, in the view of everybody, including the court, to be in conflict with Section 13A (2) of Act 299, which allows the father of the illegitimate child to make his name the child’s surname.

A conflict now arises in our country on the matter.

For those who have been championing human rights issues, the Court of Appeal ruling is seen as a victory, and settles years of battle between them and NRD.

For Muslims in the country, they see the ruling as something that is highly sensitive and will open the door to many future problems and conflicts, especially in regard to Islamic family law matters concerning the legitimacy status of children, marriage, inheritance and others.

As the Court of Appeal ruling will be subjected to an appeal at the Federal Court level, one cannot wonder how the final judgment on the issue will be for our country.

Whatever the outcome may be, it is crucial for everybody to remember that putting a certain surname, or any label, to any innocent child will surely create and invite social stigma.

Just imagine all the embarrassment and humiliation that an innocent child would have to endure when he or she starts going to school or when facing the public when he or she is grow up.

For sure, our “over-caring” society will ask so many questions about the surname carried by innocent children.

It is fair to state here that these children should not inherit the sins of their parents.

At the same time, we should also remember that the issue involves the sanctity of the religion of Islam, thus, it should and must be carefully and cautiously examined, in order to protect the interests of Muslims.

The final decision on the issue must ensure a win-win outcome for all concern parties, where the child should be allowed to enjoy his or her life free from social stigma and labels, and from carrying the sins of the parents for the rest of his or her life.

At the same time, allowing them to have a normal life like other children does not violate Islamic laws and principles, as well as the interests of the Muslim community.

For this to happen, it is best for all parties in the conflict to meet and discuss the issue in a mature and professional manner.

All sides must set aside their egos, and the aim must solely be to ensure a better future for these innocent children. – August 11, 2017.

* Dr Muzaffar Syah Mallow is a senior lecturer at the Faculty of Syariah & Law, Universiti Sains Islam Malaysia.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.