KUALA LUMPUR – To protect the family unit and children, the Federal Court has ruled that a mere allegation of an affair with a married woman is not sufficient grounds to demand a DNA test of her child.
The apex court in Putrajaya also ruled that under Section 112 of the Evidence Act, a husband is presumed to be the father of a child who is born during the time of marriage, unless “a lack of sexual access” can be established.
This decision was made in the case of a man who sought a judicial order to compel a child born to a married woman to undergo a DNA test for him to seek a declaration that he is the biological father, in addition to other orders relating to maintenance and access.
“The concern of the defendants in the present appeal is that once the paternity is ascertained through the DNA test (if ordered by the court),…the legitimacy of the child may be attacked and the child may be bastardised in the event the plaintiff is found to be the biological father.
“Whereas the plaintiff argued that the concept of paternity and legitimacy are distinct and hence concluded that the legitimacy status would not be affected, even if paternity is ascertained because of Section 112,” the Federal Court said in its written judgment.
Despite the plaintiff’s contention that he only intends to challenge the child’s paternity, the court ruled there is still a real possibility of attack against the child’s legitimacy.
Section 112 presumes that a husband is both the legal and biological father of the child, thus the Federal Court said that the law could not allow that status to be shared with a third party.
“Thus, a biological father to someone does not automatically mean that he is the father of the child recognised in law,” the Federal Court explained.
According to the judgment, the only way the plaintiff could have legally challenged the child’s paternity is to establish that there was “no access” between the parties to the marriage during the child’s conception.
“It is not sufficient for him to say that he had a sexual relationship with the defendant on the balance of probabilities or even show that he is the biological father of the child.
“This would not only open the floodgates of litigation but also cause a fracture to the integrity of the family unit,” the judgment read.
In 2023, the Court of Appeal affirmed the high court’s ruling that the judiciary has the power to compel the child to undergo a DNA test.
In this case, the plaintiff claimed he had an affair with the child’s mother and asserted he was the biological father.
According to the plaintiff, he paid a maintenance of RM1,000 to the child adding that the mother consistently confirmed he was indeed the biological father.
At the Federal Court, the appeal was heard by Datuk Zabariah Mohd Yusof, Datuk Seri Hasnah Mohammed Hashim, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan, and Datuk Abu Bakar Jais. – July 3, 2024