PRESUMPTION OF LEGITIMACY IN MALAYSIA – AN ANALYSIS


Section 112 of Evidence Act 1950 states that:

Birth During Marriage Conclusive Proof Of Legitimacy

“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.”

CASE LAW

It is to be highlighted that Section 112 is a statutory presumption that originates from 19th-century jurisprudence in which during the era, DNA testing had not been invented yet. The application of the law was illustrated in the recent case Cas v MPPL & Anor [2019] 4 MLJ 243. In the High Court, the learned judge held that Section 112 provides a presumption that the fact of marriage is a conclusive proof of a child’s legitimacy and the only way to rebut that presumption is by showing non-access between the spouses and not by a DNA test. However, later in the Court of Appeal, the trial judge affirmed that Section 112 of the Evidence Act 1950 would not bar such inquiry. The court is concerned with the child’s best interest which is their right to have knowledge of their biological parents.

It is justified that there were inconsistencies in applying Section 112 Evidence Act 1950 as there were certain judicial decisions that allowed scientific evidence; DNA tests to rebut the presumption of legitimacy. On the other hand, there are cases that put great emphasis on the literal interpretations of Section 112 of the Act where the word ‘conclusive proof’ means that the court is barred from admitting any evidence to rebut the presumption of legitimacy. Albeit there is any other evidence, the court only approved a rebuttable fact that can be admitted is the evidence of non-access of husband to wife such as in Ainan bin Mahmud v Syed Abu Bakar Bin Habib Yusoff & Ors [1939] 1 MLJ 209.

CONCLUSION

Therefore, it is necessary for the said provision to be reformed to coincide with today’s scientific development. A DNA test will act as an additional rule to the law when such matter arises because Section 112 of the Act should not be drastically eliminated because the essence can resolve the issue in proving who the biological father is when no challenges are proffered by another party. Thus, when there is a conflict of paternity, scientific evidence i.e. DNA tests should be allowed because the world is evolving and such evidence could assist the court in ensuring justice and fairness are served to all parties.

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