Children born out of wedlock: Appeals Court decision welcomed

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Sisters in Islam (SIS) welcomes the landmark decision by the Court of Appeal which ruled that a child who was born out of wedlock can take up his father’s name and commends the Court of Appeal for exercising compassion and upholding the best interest of the child.

The practice of registering Muslim children’s surnames as “binti/bin Abdullah” when they are born less than six months of the date of the parents’ marriage leads to serious and unjust repercussions on the children’s overall upbringing and wellbeing, including their right to receive maintenance from paternal family members, ability to inherit and not to mention the emotional trauma of having to face social stigma at a very tender age and as they grow up.

The National Fatwa Council has issued two fatwa (religious edicts) in 1981 and 2003 respectively following the issue of illegitimate child (anak tak sah taraf) that a child cannot be surnamed to his/her father if he/she is born less than six months according to the Islamic Qamariah calendar.

The decision by the Court of Appeal is within the pillars of Maqasid Syariah which is daruriyyah (necessity) which relates to the protection of life (nafs). The Qur’an in Surah al-Ahzab 33:5 states “Call them by (the names of) their fathers: that is more just in the eyes of God.” While this is understood to refer to adopted children, it is not impossible to extend the spirit of the verse to recognise the biological fathers of children conceived or born out of wedlock.

This judgment by Justice Abdul Rahman Sebli and the panel of the Court of Appeal embodies the spirit of Adl or Qist (Justice). The best interest of the child must be the primary concern in the formation of all laws, policies and decisions that affect them as upheld by Islamic teachings and universal human rights.

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