Muslims born out of wedlock can't take dad's name

Malaysia's federal court stays earlier ruling that illegitimate children can carry father's surname

Malaysia's top court yesterday stayed a controversial judgment which would have allowed Muslim children conceived out of wedlock to take their father's name.

The stay application was made by the National Registration Department (NRD), which had in May been ordered by the Court of Appeal to ignore a fatwa, or religious edict, which specified that illegitimate children must carry the generic "Abdullah" surname.

A Muslim couple from Johor had brought the case against the NRD so that their child, who was born five months into their marriage, could take her father's name.

The Federal Court's decision yesterday means that the NRD does not have to comply with the Court of Appeal's order for now.

It also means that the couple's quest for their child to take her father's name remains unfulfilled.

The apex court yesterday also allowed an application by Johor religious authorities to intervene in the case, after the council's lawyer, Datuk Sulaiman Abdullah, convinced the court that the case had been first filed in Johor, and thus the state and its laws were involved, the Malay Mail Online reported.

"The Federal Court granted a stay from today onwards... The Johor Islamic Council is allowed to intervene," Mr Nizam Bashir, the couple's lawyer, told The Straits Times.

The Court of Appeal's judgment had sparked fierce protest from conservative Muslims, who insisted its ruling was unconstitutional. However, other Muslim groups have lauded the decision for protecting children born out of wedlock from social stigma.

The NRD had earlier argued that it was adhering to a 2003 Malaysian fatwa which declared that a child cannot carry the name of the father if he or she is born earlier than six months after marriage.

According to the fatwa, such children should take the surname "bin Abdullah" or "binti Abdullah" - meaning son or daughter of a servant of Allah.

In its grounds of decision released last month, the Court of Appeal said that "a fatwa, we reiterate, is not law and has no force of law and cannot form the legal basis for the National Registration director-general to decide on the surname of an illegitimate child".

The Court of Appeal's judgment had sparked fierce protest from conservative Muslims, who insisted its ruling was unconstitutional. However, other Muslim groups have lauded the decision for protecting children born out of wedlock from social stigma.

Meanwhile, the application by the Federal Territories Islamic Council to intervene in the case was struck out yesterday.

Said Chief Justice Raus Sharif, who chaired the three-judge Federal Court: "I do not want multiple parties to intervene and argue on the same points. Why should (the Federal Territories Islamic Council) want to be a party in this application?"

Correction note:  In our earlier story's subhead, we said Malaysia's federal court rules illegitimate children must use 'Abdullah' surname. This is incorrect. The federal court has not made a decision on the matter yet. We are sorry for the error.

A version of this article appeared in the print edition of The Straits Times on August 22, 2017, with the headline 'Muslims born out of wedlock can't take dad's name'. Print Edition | Subscribe