Essay: Illegitimate children

CHAPTER ONE
INTRODUCTION
1.0 Introduction
The number of illegitimate children is increasing day to day. An illegitimate child refers to a child who is born outside of a valid marriage. The issues involving them are serious matters to be discussed before it becomes bigger and more serious and the further step should be taken into consideration to determine whether this illegitimate child could be differentiated from the legitimate child regarding the right of nasab towards them.
Chapter One discusses on research background, problem statement, research objective, methodology, scope and limitation and also the significance of the study whereas in Chapter Two it discusses the literature review in relation to illegitimate children.
Chapter Three looks at the ruling regarding illegitimate child in Malaysia, for example, Fatwas (Rulings) of certain States.
Chapter Four discusses about the rights of an illegitimate child in Islamic Perspective.
Chapter Five focuses on the issue relating to the nasab of an illegitimate Child.
Chapter Six is the conclusion and recommendation of this project paper.
1.1 Research Background
Scholar Dr Mohamad Sujimon was perturbed when he heard of the National Registration Departments (NRD) move to put tiadamaklumat (no information) in the father’s name in the baby’s birth certificate if the baby is born less than six months of the parent’s marriage. This is despite the biological father who is married to the mother being present to register the birth and acknowledging that the child is his. Concurring, scholar Prof Dr Mohamad Hashim Kamali stated that in Islam, a father can claim the paternity of a child even in an illicit relationship. On the six months’ period, Prof Hashim argued that there is no direct text in the Quran that states the minimum gestation period of a baby is six months.
The above scholars’ views were contrary to the National Fatwa Council in2003 ruling on this matter. In Malaysia, all the states except Perlis has adopted the National Fatwa Council ruling as their fatwa (ruling) where Muslim child born less than six months after the parents’ marriage cannot use his biological father’s name even though there is no denial on the part of his father.
On 17 January 2013, the Perlis Fatwa Council gazetted that a child born less than six months after the marriage of his mother, can be named to his father’s name unless it is denied by the father.
The differences between the two fatwa (rulings) and the Terengganu Syariah High Court’s decision in ZafrinZulhilmiPauzi v. Noor Aini Nasron which permitted illegitimate child to use his father’s name shows that there is no consensus in Malaysia in relation to the right of an illegitimate child to be ascribed to his father’s name.
Therefore, the research will focus on the issue in standardizing the fatwa among States pertaining to Muslim legitimacy (specifically nasab) to avoid any misconception or misunderstanding among the society especially the Muslims.
It is also to be mentioned thatother rights such as right to maintenance, custody, inheritance, wali and death will also be determined based on the status of the child whether he or she can be named to his or her father or not.
1.2 Problem Statement
The inconsistency among the fatwa (ruling) in States in Malaysia regarding the lineage of an illegitimate child has caused the decision made by the Terengganu Syariah High Court in the case of Zafrin Zulhilmi Pauzi v Noor Aini Nasron and also the procedure taken by the National Registration Department in refusing to state the name of biological father in birth certificate of illegitimate child questionable and invite curiosity.
The research questioniswhether a child born less than six months from the date of his parent’s marriage can be ascribed to his father’s name. If the answer is in the affirmative, the next research question is whether he is entitled to the right of maintenance, custody, inheritance, wali and death.
1.3 Research Objectives
1.3.1 To examine the issue of the attribution of the child’s name to the father if thechild is born less than six months from the date of his parent’s marriage.
1.3.2 To find ways to make the ruling on illegitimate child in each State consistent.
1.3.3 To propose solution and recommendation for the amendment of the Federal Constitution and the amendment of the procedure taken by the National Registration Department of Malaysia (NRD).
1.4 Research Methodology
This is a legal research using several research methodologies such as library based research, cases analysis and semi structured interview.
1.4.1 Library Based Research
The library research method is the main source of information essential to this research. The study adopts library research in researching into details of the provision of Islamic Law to provide theological foundation of the study. The purpose is to look into various legal interpretations of Islamic Law and to find the most suitable legal solution to the existing problem. References are also made to several relevant statutes namely, the Islamic Family Law (Federal Territories) Act 1984, the Administration of Islamic Family Law Enactment 1985 (Terengganu) and the Birth and Deaths Registration Act 1957.
1.4.2 Case Analysis
The decided cases are referred to in examining judicial interpretations, the relevant provisions referred to by the courts and also the grounds of judgment. All these were done with the intention to study the relevant provisions used. Its approach focuses on the literature sources from printed media such as books, journals and other relevant sources.
1.4.3 Semi-structured Interview
The interview has been conducted with the expert and specialist on this field such as Mufti. The expertwas interviewed to gain explanation and some views on this matter. These data will then be analysed to get the best solution to meet the aim of the research.
1.5 Research Scope and Limitation
1.5.1 Research Scope
The scope of the study will be focusing on the issue of whether a child who was born less than six months from the date of his parents’ marriage can be ascribed to his father’s name.
1.5.2 Research Limitation
There are several limitations in relation to this study, such as the lack of available or reliable data and the lack of prior research studies on this topic. This is because there are limited discussions among the academicians and experts relating to this matter. The other limitation is lack of time to gather information. Besides, there are different fatwa rulings among the states in Malaysia regarding the same issue of nasab of an illegitimate child.
1.6 Significance of the Study
This study is significant as a tool for judicial bodies or other relevant bodies to make a uniformed judgment in Malaysia with regard to the rights of the illegitimate child especially a child who is born less than six months after his parents’ marriage.
The standardised ruling shall hopefully be adopted by each State Fatwa Council in order to avoid misunderstanding among Muslims.
This research is necessary to preserve human right on the issue of the right of illegitimate child to be ascribed to his biological father’s name in order to avoid ambiguity in the eyes of public especially for Muslims.
1.7 Conclusion
Achild born outside of marriage has been considered as illegitimate according to the Islamic Law and thus is not viewed as an acceptable birth according in Malaysia. Illegitimate means that the child has not been accepted as a child of the man responsible for the pregnancy of the mother. In the birth certificate, the father of this child has been considered as anonymous. The National Fatwa Council holds the opinion that only a child born after six months from the date of marriage can be considered as legitimate and can be ascribed to his or her father’s name. This opinion had been accepted by all States in Malaysia except Perlis.Illegitimate child will further be subject to problems in inheritance, guardianship in marriage, and many other related to Islamic family law.
This research thus discusses about the contradiction of opinion among States/Muftis regarding the above issue and effort that need to be taken in order to avoid confusion among the public especially the Muslims.
CHAPTER TWO
LITERATURE REVIEW
2.0 Introduction
The literature review will focus on the writing of few authors regarding the way to determine the nasab of an illegitimate child. Most of the authors being reviewed stated that the nasab of the illegitimate child should be calculated and determinedby the pregnancy period. And, after the nasab had been determined, the other rights of the child can also be ascertained. In addition, the literature review will also focus on the judgment made by theSyariah High Court Judge in the case of ZafrinZulhilmiPauzi v. Noor Aini Nasron pertaining to the nasab of an illegitimate child according to law wherein the Terengganu Syariah High Court is the only Syariah Court that had made a decision that an illegitimate child can be named or ascribed to his biological father even though the child is born less than six months two seconds (lahzoh) from the date of his parent’s marriage. This judgment is contrary to the Terengganu Fatwa Ruling regarding the issue.
2.1 Literature Review
Paizah Haji Ismail statedthat the National Fatwa Committee which was held on 25June1998 had decided that if a Muslim woman had cohabitation without marriage either with a male Muslim or a non-Muslim man and gave birth, the child must be named as son or daughter of Abdullahorother name of ‘Asma ul-Husna’ (Asma means names, and husna means beautiful. Thus ‘Asma ul Husna’ means the beautiful names of Allah S.W.T)starting with Abdul. Further, according to her, if an illegitimate child is named as son of or daughter of its mother’s name, this causes social problems and psychological impact on the child. In her article, she further explained that a child who was found abandonedor a foster child of unknown origin, must be named as son of or daughter of Abdullah. If the name Abdullah is similar to the name of the person who keeps the child, then the child must be named as son of or daughter of a person of ‘Asma ul-Husna’ starting with Abdul.
The lineage of an illegitimate child is to his or her mother and not to the father. Wan Ab Rahman Khudzri Wan Abdullah in a conference paper states that, an illegitimate child cannot use his father’s name. He should use Abdullah or Abdul or from the name of Allah which is ‘Asma ul-Husna’. He further stated that marriage is the only permissible way to establish thenasab relationship and it also determines certain legal issues of rights andresponsibilities, maintenance, inheritance and so on. This means that living without marriage amongstcouples is strongly prohibited by Islam and should be avoided as its bring chaos to society as a whole.
IrwanMohdSubri, Zulkifli Hassan &Lukman Abdul Mutalib in their articlediscussed the decision of the Terengganu Syariah High Court in the case of ZafrinZulhilmiPauzi v. Noor Aini Nasronpertaining to the nasab of an illegitimate child. It was the only case where the Terengganu Syariah High Court made a decision that an illegitimate child can be named or ascribed to his biological father even though the child is born less than six months two seconds (lahzoh) from the date of his parent’s marriage. This decision is contrary with the fatwa decided by theTerengganu Fatwa Committee. The Terengganu Fatwa does not permit the lineage if the child’s birth is less than six months from the date of solemnization of marriage. According to these authors, the Chief of Syariah Judge of Terengganu, Dato’ Haji Ismail bin Yahya had mentioned that he allowed and declared the child who was born less than six months two seconds (lahzoh) from the date of his parent’s marriage to be a legitimate child of her parents under HukumSyarak based on the opinion of Dr. Abdul Karim Zaidan in his book Al-Mufassol fi AhkamilMar’ahwa Al-Bayt al-Muslim fi Al-Shari’atilIslamiyyah on page 384. Theyfurther stated that Sections 13 and 13A of the Births and Registration Act 1957 allows the registration of a father’s lineage to an illegitimate child upon the request made by mother and the father consents to it. This statute is applicable to Muslims as well as non-Muslims.
Dr. Juanda Jaya, Mufti of the state of Perlis stated that the National Fatwa Council Ruling should review its ruling prohibiting children born less than six months after the wedding be nasab to his father. This is because the decision is solely based on the arguments of interpretation (mafhum) and not set (mantuq). Further, according to him, in 1971, the Conference of the National Fatwa Council ruled that women who are pregnant out of wedlock should be married, but his son cannot be nasab to the man, could not inherit from him, mahram to him and the man cannot be a guardian. Because of that reason, the Perlis Fatwa Committee in 2009 issued a fatwa that children born less than six months after his mother’s marriage can be nasab to her husbandunless there is a denial by her husband. The decision was made based on the hadith of the Prophet s.a.w and it is an authentic hadith narrated by 20 friends. Thus, the National Fatwa Council should review this matter so that the issue of lineage can be resolved. He said as a result of the National Fatwa Council ruling, a baby less than six months after the wedding cannot be nasab to his father even if the father pleaded the baby belongs to his.
MeerahDeiwi Raja Gopal in her article states that the “right to identity” is popularly known as the “right to have rights”. Birth registration and the right to a name and nationality is a civil right of every child from the moment of birth. Children’s right in Malaysia have significantly progressed since Malaysia acceded to the United Nations Childs Rights Convention (hereinafter referred to as UNCRC) in 1995 and introduced the Child Act 2001. Article 7 of UNCRC provides for birth registration, the right to a name and nationality. Under Islamic Law, for Muslims, a child is legitimate if the parents are legally married to each other when the child was conceived and born. Legitimacy is an important issue for Muslims as it involves the issue of nasab (lineage) which is pertinent to legitimacy matters. If a child is legitimate, his nasab is of his father and if illegitimate, of his or her mother only. An illegitimate child has no relationship whatsoever with his/her biological father under the Islamic law. Nasabis important as it is the root of legitimacy. If a child is legitimate, it is through such status that his entitlement to other rights arises such as his right to a father, right to a good mother, the right to a name, the right to maintenance, inheritance and guardianship. There are a number of ways to prove nasab or lineage but the common method is by calculating the period of pregnancy. Both the Fuqaha and Abu Hanafi Schools of thought, although have different ways of calculating the pregnancy concluded that the minimum period of pregnancy is six months. The maximum period of pregnancy is two years based on the view given by Hanafi which was based on the words of Aishah that “a child in a mother’s womb cannot be more than two years”. The above hadith also stated that if a pregnant woman gave birth within the two years of her husband’s death or from the date of her divorce, the child is the legitimate child of the ex-husband. The Islamic perception is that a child is legitimate if he is born six months after solemnization of marriage or two or four years after the husband’s death or divorce.
Allamah Muhammad Jawad Maghniyyah in his book discussed about the minimum and maximum period of gestation according to Ahl Al-Sunnah (Sunni) and Shiah (Shi’i). The opinion of all the legal schools of Islam, both Sunni and Shi\’i, is that the minimum gestation period is six month because the 15th verse of the Surat Al-Ahqaf expressly states that the gestation period (muddat al-haml) along with the period of suckling (rida\’ah) is thirty months and the 14th verse of the Surah Luqman states that the period of suckling is to be two complete years. Whereas, regarding the maximum period of gestation, according toAhl-Sunnah (Sunni) are, first, according to Abu Hanifah, the maximum gestation period is two years on account of a tradition narrated by Aishah that a woman does not carry a child in her womb for more than two years. Second, Malik, Al-Shafie and Ibn Hanbal state the period to be four years, on the basis that the wife of \’Ajlan carried her child for four years before delivery. This view was differentfrom the Shiah (Shi’i) where there is a difference of opinion among Imami scholars regarding the maximum period of gestation. Most of them have stated it to be nine months, some of them ten months, and some others a year. Thus, there is a consensus that the period does not exceed a year, even by an hour. Therefore, if a woman, divorced or widowed, gives birth to a child after one year, the child shall not be attributed to the husband, because there is a tradition from Al-Imam Al-Sadiq.
ZalehaKamaruddin and Mahyudin bin Ismail in their book discussed about paternity through marriage. Basically the marriage tie is the main factor which establishes paternity of a child. If the child is born within a subsisting legal marriage, he is deemed to be legitimate. It indirectly confirms paternity and maternity of a child. The marriage, however, must be a valid or irregular one but not void. Further, the child who is born within a marriage tie must be born after at least six months of pregnancy based on Surah Al-Ahqaf, verse 15 and Surah Al-Luqman, verse 14. The jurists unanimously agreed that the minimum time of pregnancy is six months after thirty months of the period of carrying and weaning was deducted with twenty four months. The balance remaining is six months. They also refer to the hadith which reported the practice of the companions, where it was narrated that a woman had delivered a baby after six months of pregnancy. Caliph Umar wanted to implement hududlaw on her but Saidina Ali prohibited him from doing so since Allah says in the Quran, Surah Al-Baqarah, verse 223: “the mother shall give suck to their offspring for two whole years, if the father desires to complete the term…”.Therefore, Caliph Umar did not proceed with the punishment. The fuqaha (Islamic legal scholars) differed as to the longest period of pregnancy. According to Imam Malik, the longest period shall be five years, Imam Shafie says four years, and Imam Hanafi two years. MazhabAz-Zahiriah regarded that the maximum period to be nine months and not exceeding.
2.2 Conclusion
Most of the authors stressed about the calculation of pregnancy time of the mother to determine the nasab of an illegitimate child in Islam, which is six months from the marriage of the mother.
CHAPTER THREE
THE RULING REGARDING ILLEGITIMATE CHILD IN MALAYSIA
3.0 Introduction
According toMohd Kamal Mat Salleh, Mohd Al Adib Samuri and Mohd Izhar Ariff Mohd Kashim, Fatwa (ruling) has been recognized as one of the sources of Islamic law in Malaysia. Fatwa (ruling) issued by a Mufti\’s office becomes a reference to the Syariah court on any unresolved disputes and legal issues. Accordingly, the position of fatwa (ruling) in civil court (a secular court) is called into question as there are many cases that refer to the fatwa (ruling) in such court especially with regards to the Islamic Law..
They futher mentioned that, the position of fatwa (ruling) as an authority in civil court in Malaysia has often become a subject of debating and argument among legal experts in Malaysia. According to Mohd Daud Bakar, he stated that the judges of civil court may ask for an idea and clarification from Muslim legal expert, also known as mufti or fatwa (ruling) on matters relating to Islamic law for any case put on trial. He also added that, legal opinions and views given by the mufti are not binding since fatwa (ruling) is a legal opinion in the form of advice despite it was issued by an official Mufti appointedby the government.
However, the civil court may ask the mufti to issue a fatwa or legal view. The court may also ask that the view to be authorized or ask the muftis to justify their legal opinion of Islamic law. The acceptance of fatwa (ruling) nevertheless depends on the civil court whether to recognize the fatwa (ruling) as part of authority or otherwise.
3.1 Fatwa as an Authority in Secular Court (Civil Court) of Malaysia
3.1.1 Authority Of Fatwa And Mufti’s Legal Opinion In The Civil Court.
Authority of fatwa (ruling) and legal view of the mufti are fundamental and basic to provision of fatwa with regard to the Act, Enactment and Ordinance of Islamic States Administration in Malaysia. In the nowadays phenomena, fatwa is recognized by the legislative through power of the Act, Enactment and Ordinance of Islamic States Administration in Malaysia. Civil court will be acknowledge and accept official fatwa issued by the mufti and Fatwa State Committee. Therefore, the provision of Act, Enactment and Ordinance of Islamic States Administration shows the importance of fatwa as source of reference and authorized legal opinion on religious matters in civil courts. Thus, whenever there are cases concerned to Islamic law put on trial in civil courts, fatwa (ruling) could serve asreference and authority. It can be described by the following summary:
(a) a gazetted fatwa is binding upon Muslims within the State that gazetted the fatwa (all states except Kelantan);
(b) mufti cannot be sued or called upon to give opinion or evidence of Islamic law either in the Public/Civil Court or Syariah Court (Kelantan, Pahang, Negeri Sembilan, Kedah and Sabah and the Federal Territory);
(c) any court other than the Syariah Court could ask from the mufti/ Fatwa Committee to give legal view on Islamic Law and the mufti can give his view to the Court (all states except Sarawak, Johor, Melaka and Perlis). Provision in Sarawak mentions “any court including the Syariah court”. A fatwa should be recognized by all courts in the State. The court mentioned here refers to the Syariah court (Penang, Selangor, Federal Territory, Terengganu,Negeri Sembilan, Perak, Sabah and Sarawak, Johor and Malacca);
(d) in a court proceeding, submission of notification on a gazetted fatwa shall be a conclusive evidence of that particular fatwa (Sarawak only);
(e) mufti and any members of the State Fatwa Council, could not be sued in any court of law or the civil courts for a gazette fatwa (Sabah only).
This shows that fatwa (ruling) can be taken as reference by civil judges in making their judgment/decision. Fatwa (ruling) is better to be taken as reference to help the judges in delivered their decision, especially in cases relating to the Islamic law although fatwa (ruling) is not binding on the civil judges. Fatwa (ruling) and mufti’s legal view is needed by the civil judges since they are not familiar in Islamic law and have no knowledge on how to interprete and to guide them in delivering their judgment in court. Moreover, it saves cost and time in completing cases that are put under trial.
Amendment on the Article 121 (1A) in 1988 brings significant impact on the acceptance and authority of fatwa as source of reference in Civil Courts and Syariah Courts. Before the amendment, any judgment issued by the Qadhi or fatwa (ruling) issued by a mufti is not final, not authoritative, often disregarded and is not binding on the civil courts. Most of the times, mufti’s point of view and his fatwa (ruling) is rejecting. For example, rejection of fatwa (ruling) on validity of endowment by the High Court, as discussed in the case of Religous Affairs Commissioner, Terengganu and others v. Tengku Mariam, in this case the issue involved was wakaf. In the preliminary stage, the court need to determine whether wakaf made by Tengku Chik for the benefit of his family was valid or not. To overcome this problem, the case had been referred to the mufti in order to get their view and decision. The mufti had approved such wakaf. However, in this case the learned judge refused to accept such fatwa (ruling) but followed judgment of the Privy Council and concluded that the wakaf was therefore void. It shows that the civil court may obtain the opinion of mufti such as fatwa just only to make a references but that fatwa is not binding. The learned judge said:
“I have given due matter considerable thought and am of the view that even if it had been this court which had sough the fatwa, the court yet retains unfettered discretion as to how much fatwa it should accept, and may decline to be bound by it. I can find nothing in the Enactment which has affected the power of the court to propound Islamic law, which power I now propose to exercise”
In the above case, preference of reference is often given to opinions of civil judges thus dismissing the fatwa ruling. Such preference is among the issues that involve integrity of fatwa (ruling) as a source of reference before the 1988 amendment. Since the power to intepret the law is under the court’s jurisdiction, the position of fatwa and mufti’s view as authority in the civil courts was still in argument although amendments were made. The scholars and legal practitioners in Malaysia are still in argument with regards to the capacity of fatwa (ruling) as an authority in civil court . In practice, the civil courts are not bound by the gazetted fatwa since the power to interpret law is subjected to the court’sjurisdiction.
According to Mohamed Azam Mohamed Adil, he stated that the fatwa (ruling) is not binding in the civil court as compared to the Syariah court. However, judges in the civil court are free to consult with the muftis for their legal view and explanation or fatwa (ruling) related to Islamic law on cases put on trial. This view is based on a number of State Islamic Religious Administration Enactments . Nevertheless, for the sake of keeping good image, dignity and credibility of the muftis, provision of state law mentioned that they cannot be sued to appear in court and give their views or being a witness for cases on trial. Nonetheless, their affidavits and written evidence as an expert of legal opinion is admissible in court.
In fact there are several cases which shows that the civil court dependancy on the mufti. For an example judgment made by Salleh Abas in the case of Re Bentara Luar where the appellant claimed that the wakaf was void and against the rules of perpetuity. In this case, the court held that the law applicable to determine the validity of the wakaf is the Islamic law as interpreted by learned Muslim scholars in Islamic jurisprudence and not the English law. Here, al-Quran will be relied on before issuing any fatwa or opinion. Indeed, there is no verse in al-Quran prohibiting someone to dedicate wakaf in perpetuity as Allah (SWT) says in surah al Baqarah verse 195, “Spend your wealth for the cause of Allah, and be not cast by your hand to ruin, and do well. Allah loved the beneficent”.
Similarly, the judge in the case of Isa Abdul Rahman and others v Penang Islamic Religious Council stated that the fatwa (ruling) must not be binding on the civil court since the court itself should not be construed as Muslims, although the fatwa was called and stated in any civil proceedings.
3.1.2 Acceptance of Fatwa (Ruling) as Reference for Judgment in Civil Court
There are several cases in the civil court that had referred to fatwa (ruling) and legal view of the muftis and accepted them in the court’s judgment. The examples of civil court cases that are often put on trialsuch as change of religion and land endowment dispute, thefatwa (ruling) and legal view of Mufti were taken as authority. After the amendment of the FederalConstitution Article 121 (1A) 1988, the fatwa and legal opinion of the Mufti have referred as authority. Even before the 1988 amendment there are also other cases in the civil court which have referred to the fatwa and legal opinion of the Mufti as authority. The following cases are not the only cases that had referred to fatwa (ruling):
(a) Majlis Agama Islam Negeri Pulau Pinang v. Abdul Latiff & Anor;
(b) Ahmad Yahaya v. Majlis Agama Islam Negeri Pulau Pinang;
(c) Ikbal Salam v. Koperasi Permodalan Melayu Negeri Johor & Anor;
(d) Fathul Bari Mat Jahya & Anor v. Majlis Agama Islam Negeri Sembilan & Ors;
(e) Majlis Agama Islam Pulau Pinang & Seberang Perai v. Khatijah Yoan &Ors;
(f) Linggam Sundarajoo v. Majlis Agama Negeri Kedah Darulaman;
(g) Hjh Halimatussaadiah Hj Kamaruddin v. Public Services Commission, Malaysia& Anor;
(h) Dalip Kaur v. Police Officer Bukit Mertajam ; and
(i) Re Bentara Luar.
There are also situation whereby civil judge passed the judgment withoutconsidering fatwa (ruling) as authority in the judgment. The effect of this action isthe judgments passed by the civil judges clearly inconsistent with the existing fatwa (ruling) issued by the fatwa institution in MalaysiaThe civil judges have looked into the fatwa (ruling) and opinions of experts in deciding the verdict in several endowment cases which accepted fatwa (ruling) as an authority in the civil court. However, there are also situation whereby fatwa was not taken as an authority by the civil judges eventhough it is related to the same matters. There areafew cases which exclude fatwa (ruling) as the authority are as follows:
(a) Victoria Jayaseele Martin v. Majlis Agama Islam Wilayah Persekutuan & Anor;
(b) Titular Roman Catholic Archbishop of Kuala Lumpur v. Minister of State Affairs& Anor;
(c) Isa Abdul Rahman and others v. Majlis Agama Islam Pulau Pinang;
(d) G Rethinasamy v. Majlis Ugama Islam Pulau Pinang and others;
(e) Commissioner of Religous Affairs, Terengganu and others v. Tengku Mariam.
3.2 Fatwa (Ruling) of the States
3.2.1 Fatwa (Ruling) of the State of Terengganu
Enactment of the Administrative Affairs of the Religion of Islam (Terengganu) stated that, “Anak tak sahtaraf tidak boleh dinasabkan kepada lelaki yang menyebabkan kelahirannya atau kepada sesiapa yang mengaku menjadi bapa kepada anak tersebut. Oleh itu mereka tidak boleh pusaka mempusakai, tidak boleh menjadi mahram dan tidak boleh menjadi wali dan tidak diharuskan perkara-perkara yang diharuskan bagi keluarga yang sahtarafnya pada syarak”.
(Illegitimate child cannot be attributed to the man who caused his birth, or to any person claiming to be the father of the child. Therefore, they are not entitled to inheritance, cannot be a mahram and cannot be a guardian and are not required to do things required for family with valid status under Islamic law).
However, there is a case whereby the Syariah High Court Judge of Terengganu had allowed an illegitimate child to carry his father’s name even though the child was born less than six months from the marriage of his parents. In the case of Zafrin Zulhilmi bin Pauzi v. Noor Aini binti Nasron, there was an application made by the father of the child for a declaration from the Syariah High Court that her child, Nur Damia Aqilla binti Abdullah is her legitimate child according to syarak. By referring to the birth certificate, the baby girl was born on 3 September 2010. The applicant’s marriage with Noor Aini Binti Nasron (Respondent) was solemnized on April 16, 2010. The respondent supported the application made by the applicant. The baby was born less than six months from the date of solemnization of marriage which is only four months and twenty four days.
The Syariah High Court made a decision to allow the child to be lineage to the applicant, Zafrin Hilmi bin Pauzi. However, the applicant cannot be a wali to that child and the child is not entitled to inheritance. The judge concluded that the question of wali and inheritance is not under “Ahkam al-dunya” in which lineage of children can only be to biological parents but this lineage does not change the position of wali and inheritance.
3.2.2 Fatwa (Ruling) of the State of Perlis
The Fatwa (ruling) of the State of Perlis in its permits the lineage even if the child’s birth is less than six months from the date of solemnization of marriage with a condition that the father does not deny his relationship to the child.
3.2.3 Fatwa (Ruling) of the Other States
The position of an illegitimate child has been discussed in the National Fatwa Committee wherein the decision is as follows:
\”National Fatwa Committee for Religious Affairs had a meeting on 28 to 29 January 1981 to discuss the position of Illegitimate Children. The committee decided that the children of adultery or illegitimate (an illegitimate child), whether followed by a marriage of his parents or spouse shall not be ‘bin’ or ‘binti’ to Abdullah”.
Based on the discussions, the eight states namely the Federal Territory of Kuala Lumpur, Johor, Melaka, Johor, Negeri Sembilan, Terengganu, Selangor and Penang have adopted the essence of the decision in their rulings despite using various Sighah (wording). In fact, five of the states, the Federal Territory of Kuala Lumpur, Malacca, Negeri Sembilan, Terengganu and Selangor fatwa were gazetted in consistent with this fatwa (ruling).
The National Fatwa Committee in its meeting on June 10, 2003 agreed to define an illegitimate child as children born out of wedlock, whether as a result of adultery or rape, and he is not from syubhah intercourse and children born less than six months two Lahzah (seconds) by taqwim qamariah from the date of the ceremony.
However, on July 27, 2004, the NationalFatwa Committee has changed the sentence \”from the date of the ceremony\” at the end of paragraph two of National Fatwa Committee on June 10, 2003 to become \”out of date tamkin\” (intercourse) with the aim to clarify that the period of six months and two (lahzah)(seconds) referred to in previous fatwa did not begin from the date the ceremony was performed but instead begins when there is a possibility of intercourse between husband and wife.This view was later accepted by the States and become an official fatwa in their respective States.
The States that do not officially accepted the fatwa (ruling) have however referred to their respective Enactments of Islamic Family Law which have incorporated the essence of the fatwa (ruling) as has been approved by a meeting of the Council of Rulers 188 on March 22, 2001.
The Islamic Family Law (Kelantan) 2002, stated that “Illegitimate in relation to a child, means born out of wedlock and children of non-marital syubhah”. Similarly, this statement is also mentioned in the Islamic Family Law (Selangor) No. 2, 2003, the Islamic Family Law (Federal Territory) 1984, the Enactment of Islamic Family Law (Malacca) No. 12, 2002, the Administration of Islamic Family Law (Perlis) No. 7, 2006, the Enactment of Islamic Family Law (Perak) No. 6, 2004, the Enactment of Islamic Family Law (Pulau Pinang) No. 3, 2004, the Enactment of Islamic Family Law (Johor) No. 17, 2003 and the Enactment of Islamic Family Law (Kedah).
The Kedah Fatwa Committee Meeting on 26 September 2010 interpreted an illegitimate child as follows:
(a) Children born outside of marriage, whether as a result of adultery, rape, and he is not from syubhah intercourse or not of child slavery;
(b) Children born less than six months to two lahzah (seconds) qamariah of ad-dukhulimkan time;
(c) Children who are born more than six months and two lahzah (seconds) qamariah of ad-dukhultime after the contract of marriage is valid and there is no evidence in terms of legislation that the child is illegitimate by admission (admission) of those concerned (husband and wife or one of them);
(d) Illegitimate child cannot lineage to men whether the man who caused his birth or who claims to be the father of the child. Therefore, they cannot inherit with each other, cannot be a mahram and the father should not be a guardian of the child;
Section 110provides that the minimum period of pregnancy shall be more than six months from the date of marriages and the maximum period shall be four qamariah years after the dissolution of marriage either by the death of the man or by the divorce and she does not remarry. Similarly, Kelantan Enactment provides that the minimum period of pregnancy shall be six months or more after the marriage or within period which can be accepted by Hukum Syara’ after the dissolution of the matrimony by the death of the man or by divorce and the woman had not remarried.
3.3 Conflict between the Rulings
The fatwa (ruling) on laws of lineage for the states in Malaysia ie: Federal Territory, Kelantan, Negeri Sembilan, Terengganu, Pulau Pinang, Kedah, Melaka, Sarawak, Selangor and the National Fatwa is unanimous in that every child born six months and two lahzah (moment) after the date of solemnization of marriage is permitted lineage to his or her mother’s husband.
Whereas for Perlis, the fatwa (ruling) permits the lineage even if the child’s birth is less than six months from the date of solemnization of marriage with a condition that the father does not deny his relationship to the child.
This shows that there is a conflict between the fatwa (ruling) of the ten States and the State of Perlis. The ten States agreed that a child born less than six month isconsidered as an illegitimate child and cannot be lineage to their biological father, whereas the Perlis fatwa (ruling) is vice versa.
As the Perlis’s fatwa (ruling) is in conflict with the National Fatwa, if verification of birth status is required in any NRD offices in the state of Perlis, the NRD offices will have to follow the Perlis fatwa (ruling). The other States’ NRD offices will not face a similar issue of two different fatwa (ruling) as the respective State’s fatwa (ruling) is the same as the National Fatwa. The Perlis’s fatwa (ruling) is different from the National Fatwa because each state’s Mufti Department is independent and not bound by the National Council of Islamic Affairs (MKI), which is the national authority that releases a fatwa. Therefore, the Mufti of the State of Perlis is eligible to decide on decree when he sees fit to address certain issues. In Federal Constitution, State’s religious matters rest under its own executive power. Regarding the fatwa of lineage referred by the NRD of Perlis, if they follow the National Fatwa then the practice conform with the rest of NRD offices in the other States but if they follow the fatwa (ruling) of Perlis, then they opt for a lenient fatwa compared to the rest of the States.