1. It is trite under English common law that the putative father has no legal rights over an illegitimate child. Only the natural mother has such legal rights over the illegitimate child.
  2. In T v. O [1993] 1 MLJ 168 at p172, the High Court Judge stated that:

“Under English common law, a father of an illegitimate child had no ‘rights’ over the child merely by virtue of his paternity. He had a legal obligation to support it, provided that it could be legally established that he was the father.”

  1. In Yap Lee See v. William Tay & Ors [2011] 1 CLJ 793, High Court summarised that the current law in Malaysia, following English common law, on illegitimate children is that the putative father has no rights over an illegitimate child.
  2. In Re Adoption Application No 41/61 [1962] 3 All ER 553 at p 562 where Diplock LJ stated:

“… It was clear policy the court shall have no regard to the interest of the putative father of an illegitimate child.”

  1. In Yap Lee See, it was an application by the natural mother for custody of the illegitimate child. The Court granted custody to the plaintiff mother, and since she had also prayed for reasonable access to be granted to the putative father, the Court allowed that prayer but imposed the condition that access should be supervised in view of the high probability that the child might not be returned to the plaintiff after access by the putative father.
  2. In deciding the matter of guardianship and custody the court is guided by the following principles:

(a) whether the mother is considered morally unfit (see Lim Suk Fang(f) v Lim Kim Heng [1993] 1 LNS 35);

(b) the welfare and best interests of the illegitimate child (see Chelsa Cabalona Abdullah v. Siek Ming Hua[2008] 8 CLJ 285 at p 294, and Tan Kong Meng v Zainon bt Md Zain & Anor [1995] 4 CLJ 409); and

(c) the wishes of the natural mother.

  1. In George Pathmanathan a/l Michael Gandhi Nathan v Ong Eu May, High Court Kuala Lumpur Originating Summons No S8–24–53 of 2008, High Court Judge decided to grant the application of the putative father i.e. the plaintiff for access to his illegitimate son. The plaintiff was also ordered to pay a monthly maintenance of RM1,000 for his illegitimate son. In this case, the putative father/plaintiff was living with the defendant and the illegitimate child for about four years before the intimate relationship of both parties ended. The putative father had been physically helping the natural mother to nurture the child. Even after the separation of the putative father from the defendant, the putative father continued to have supervised access to the child. There was already close bonding between the putative father and the illegitimate child. Based on these facts, the Judge gave access to the putative father mainly because the court did not wish to disturb or destroy such bonding. The child was about five years old and was able to appreciate his relationship with his putative father. It would not be for the welfare or in the best interests of the child to be suddenly deprived of access to his putative father.
  2. In Karupayee a/p Paramasua v Ravisanthiran a/l P Marimuthu Kuala Lumpur High Court granted custody of the two illegitimate children to the putative father since there was sufficient evidence to prove that the natural mother is morally unfit and also unfit in other ways to be granted custody, care and control of the two children. The Court also considered the welfare of the children.

 

[2012] 8 MLJ 180 KL HC

 

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