Pater est quem nuptiae demonstrant – "the
father is he whom the nuptials point out" – is the legal
maxim which forms the common law presumption that a child's
father is the man married to the child's mother at the time of
birth or conception. This presumption is encapsulated within
section 112 of the Evidence Act 1950 ("section 112")
which provides:
"The fact that any person was born during the continuance
of a valid marriage between his mother and any man, or within two
hundred and eighty days after its dissolution, the mother remaining
unmarried, shall be conclusive proof that he is the legitimate son
of that man, unless it can be shown that the parties to the
marriage had no access to each other at any time when he could have
been begotten."
Section 112 is a statutory presumption originating in
19th century jurisprudence when DNA testing had not been
invented. Such DNA testing has recently caught the attention of the
media in Europe when the former King Albert II of Belgium, who had
abdicated in 2013, agreed in May 2019 to comply (in default of
which he would have had to pay a fine of €5,000 a day) with an
order of a Belgian court in November 2018 ordering him to give a
DNA sample in a paternity lawsuit brought by a woman who claims
that she is the love child of his alleged extramarital affair with
her mother, Baroness Sybille de Selys Longchamps. What is at stake,
in the case of a positive result, may be inheritance by the
claimant of some part of the Belgian royal family's private
fortune and, possibly, eligibility for an aristocratic title
(Retired Belgian King Will Submit to Paternity Test, The
New York Times, 21 May 2019).
In the recent case of CAS v MPPL & Anor [2019] 2 CLJ
454, the Malaysian Court of Appeal had the opportunity to consider
the question of DNA testing in relation to section 112.
CAS v MPPL & ANOR
Facts
The first defendant, a flight attendant ("D1"), and
the second defendant, a pilot ("D2"), were in a valid
marriage when the child ("C") was born. The plaintiff,
another pilot ("P"), in his originating summons claimed
that C was born as a result of his alleged affair with D1. P
applied for a DNA test to be carried out to determine whether he
was the biological father of C, and if the test were to show that P
was indeed the biological father of C, then P applied to be
declared as such.
The High Court's Decision
The High Court dismissed P's originating summons on two
grounds. First, that section 112 provides a presumption that the
fact of marriage is conclusive proof of a child's legitimacy
and the only way to rebut the presumption is by showing non-access
between the spouses, not by a DNA test. Second, that it was not in
the best interests of C to allow the DNA test as a declaration of
illegitimacy (in the event the DNA test shows P to be C's
biological father) would disrupt C's family life.
Appeal to the Court of Appeal
On appeal, P submitted that the presumption of a child's
legitimacy under section 112 had no relevance to the determination
of a child's paternity. P also relied on Article 7 of the
United Nations Convention on the Rights of the Child
("UNCRC") to argue that the best interest of the child
was for the child to know his or her biological parents. P further
asserted that courts can order DNA tests to determine
paternity.
D1 and D2 contended that the declaration of paternity sought by P
would result in C becoming an illegitimate child. They further
argued that the policy behind section 112 was to avoid a child
being made illegitimate.
The Court of Appeal's Decision
The Court of Appeal held that the High Court had erred when it
linked paternity with legitimacy.
According to Nallini Pathmanthan, JCA (as Her Ladyship then was),
who delivered the judgment of the Court of Appeal, "...
section 112 does not bar enquiry into the paternity of a
child. Paternity and legitimacy are two distinct, though
interrelated concepts." The learned judge added that
"the concepts of "paternity" and
"legitimacy" should necessarily be separated. The former
concerns a question of fact; the latter a question of law. Section
112 of the EA constitutes adjectival law, and it is trite that
adjectival law must be interpreted liberally so as not to defeat
the rights of parties."
Her Ladyship was of the view that section 112, which dates back to
1872, is an outdated and anachronistic legal provision and ought to
be construed and given effect in line with modern day scientific
advancements.
The learned Judge further stated that "Our law, and indeed
the law of many civilised nations, recognises that a child may in
fact be an illegitimate child, but, by operation of law, the said
child may still be considered legally legitimate."
The Court of Appeal concluded that section 112 does not bar
enquiries into paternity and that such enquiries per se do
not illegitimise a child.
After considering the relevant provisions of the UNCRC (namely
Article 3(1) which provides, inter alia, that in all
actions concerning children, the best interest of the child shall
be a primary consideration and Article 7(1), whilst noting that the
latter had been subjected to a reservation by the Malaysian
Government when it acceded to the UNCRC, which provides, inter
alia, that a child shall as far as possible, have the right to
know and be cared for by his or her parents) and the Indian
decision of Shri Rohit Shekhar v Shri Narayan Dutt Tivoari
& Anor IA No. 4720, the Court of Appeal held that in
determining whether a paternity test ought to be ordered, the court
must have regard to the 'best interests' of the
child, which in this instance is the right to know who his or her
biological parents are.
The Court of Appeal added that the High Court had also erred in its
undue pre-occupation with the supposed fears of
"illegitimising the child". In the opinion of the appeal
court, the High Court should have allowed the factual disputes to
be determined, whereafter it could then go on to balance the
competing interests of paternity and legitimacy and arrive at a
fair and just determination of the matter.
In light of the errors by the High Court, the Court of Appeal
remitted the matter back to the High Court with P's originating
summons converted into a writ action so that the case could be
fully ventilated.
In the authors' view, the Court of Appeal's astute
interpretation of section 112 captures the intention of Parliament
at the time the Evidence Act 1950 was drafted, that is, section 112
was to ensure certainty of a child's legal status unless it is
conclusively proved that there was no access between husband and
wife at the time of conception. However, it is clear from the
judgment that a conclusive DNA test is still insufficient to
displace the legal presumption of fatherhood under the Evidence Act
1950.
The approach adopted by the Court of Appeal is to be lauded as it
is in line with the latest developments in international law which
appear to support the argument that it is in the child's
interests for the child to know the truth of its origins.
PROBLEMS WITH SECTION 112
Section 112 was conceived in an era which lacked conclusive
means of determining biological parenthood. Even today, a child
declared illegitimate is by law deprived of rights, particularly in
scenarios where parents pass away intestate. In an attempt to
curtail such declarations, the presumption under Indian law was
incorporated into the Malaysian Evidence Act 1950.
In its most general sense, legitimacy is separate and distinct from
paternity. However, the position of Malaysian law on legitimacy
does not allow for reconciliation with the social understanding of
legitimacy. For instance, in CAS v MPPL, once it is
established that D1 had access to D2 during the period of C's
conception, C's legitimacy would be forever established. As
much as we would hope otherwise, the social stigma of illegitimacy
is very much prevalent in our society. What happens when fact and
law do not coincide?
DEVELOPMENTS IN THE UNITED KINGDOM
In determining paternity in the UK, the Courts have been granted
powers under section 20 of the Family Law Reform Act 1969 to not
only rely on scientific tests, such as DNA tests, as evidence of
paternity but to direct them as well. As for legitimacy, the
presumption of pater est quem nuptiae demonstrant exists
in common law as opposed to statute. However, section 26 of the
Family Law Reform Act 1969, allows the presumption to be rebutted
by "evidence which shows that it is more probable than not
that that person is illegitimate or legitimate". This means
that both the legitimacy and paternity can be determined by means
of scientific tests.
CONCLUSION
Although the Court of Appeal is correct in its judgment that
paternity and legitimacy have in the past been distinct concepts at
law, we doubt that such a position should remain any longer. The
availability of DNA testing has led to appropriate reform in a
number of jurisdictions on legal provisions concerning the
determination of paternity and it is perhaps time Malaysia follows
suit.
However, the obstacles that arise with DNA testing should not be
ignored. Exclusive reliance on biology to determine parenthood at
law can be further complicated by assisted contraception
techniques, second families, step-parents and adoptions.
Unfortunately, Malaysian law will have considerable difficulty in
developing its family law jurisprudence to keep up with these
rising contemporaneous issues if the existing statutory presumption
can only be rebutted by proof that there has been no access between
husband and wife.
As a start, section 112 could be amended to provide a discretion
for the Court to rely on DNA testing or other scientific evidence
to establish or disprove legitimacy at law. However, in exercising
its right to make such a finding with regard to a person below the
age of 18, there should be statutory guidelines on how a Court
should exercise its discretion, having as its paramount concern the
best interests of the child.
The Court should also be given express powers under an amended
section 112 to order such DNA tests. Such tests in respect of
children under the age of 18 should only be carried when it is in
the best interests of the child, that is, where there is something
to be gained or benefited by the child at the risk of being
declared illegitimate.
You may view the full issue of Skrine's Legal Insights Issue
3/2019 here.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.