Paternity vs Legitimacy

Trevor Jason Mark Padasian and Ryan Jaafar discuss a ground-breaking decision by the Court of Appeal.
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.
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.
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?
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.
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.