In Malaysia, parents are often given equal custodial rights to a child in a divorce case. However, it is subject to any factors that might vitiate the rule. However, does this apply to cases where the child is born out of wedlock i.e. illegitimate child? In this article, we will briefly discuss this matter, based on the High Court case of Lai Meng v Toh Chew Lian.
Brief facts of the case
Both the plaintiff and the defendant, in this case, started an intimate relationship in 2002. The relationship did not last and subsequently turned sour. They call it quits in 2006 where both of them signed a settlement agreement. The plaintiff agrees to pay the defendant a total sum of RM1,400,000.00 in 57 installments. The last being RM15,000.00 in 2011.
In 2009, the defendant conceived a child illegitimately. This set of a chain of events, where the plaintiff:
- Begin paying RM3,000 per month to the defendant for the child;
- Made the child a beneficiary to his EPF account, where the child will have 50% of his EPF. Meanwhile, his two legitimate children share the remainder of the EPF between them; and
- Allowed to see the child every day except Sundays.
However, the plaintiff was subsequently denied access to the child by the defendant. Hence the case before us. One of the issues that were raised in court by the plaintiff, amongst others, was whether the plaintiff, as a putative father of the illegitimate child has rights to access to the child.
The court held in the negative, stating that while the general rule is that a putative father may be granted rights to access to their illegitimate child, it is not a blanket ruling. There can be instances such as this, where the putative father is forbid from accessing the child. In coming to the decision, which will be discussed below, the court considered two factors:
- What are the wishes of the mother and the child; and
- What are the welfare and best interest of the child in such instances.
Rationale of the decision
1. The wishes of the mother and child
In assessing what is the wishes of the mother and child, the court adopted two principles. Firstly, the court adopted the English common principle that in such cases, the mother has automatic full legal rights to her child. In contrast, the putative father does not have any rights to the child unless the mother of the child gave consent to the putative father to access to the child. In this case, it was clear that the defendant wishes to sever all ties with the plaintiff. This is due to multiple concerns that she has if the plaintiff were to allow access to the child. They have no choice but to adhere to the wishes of the defendant.
Secondly, the court will also consider the issue of public policy. Center to this principle was whether the Guardianship of Infants Act applies to the illegitimate child as the Act states that both parents should be given equal custodial rights to the child. While the court held that an illegitimate child is covered under the Act, the court also pointed out that the act allows the court to decide which parents should be given custodial rights if a dispute arises. Therefore, to allow equal custodial rights to both parents based on the Act will definitely set off a floodgate of instances. All putative fathers will claim that they have a right to access their illegitimate child. This could contradict the wishes of the mother. In this instance, she wishes to have no ties at all with the Plaintiff as pointed out above.
2. The welfare and best interest of the child
In assessing the welfare and best interest of the child, the court points out that there are several factors that a court can consider, namely:
- Whether the natural mother can prove if she is morally unfit or unfit in other ways to be granted custody;
- Whether the denial of access to the putative father would traumatize or adversely affected the child; and
- The putative father takes any action to mitigate the matter in hand.
To this end, the court pointed out that it is the best interest of the child that the plaintiff should be denied access to the child, as:
- The defendant is not unfit (unlike a previous case which the court has presided over) and is financially capable of raising the child on her own;
- The child, in this case, had not been accessed regularly by the putative father since the defendant has denied access to the plaintiff to access to the child. Therefore the child will not be traumatized or adversely affected by the decision. As compared to another case, the putative father has regular access to his illegitimate child even after both the mother and the father enters an agreement to part ways. In that case, the court held that as the child had continuous access to the father and was close to him. To deny access would cause irreversible damage as the child was old enough to appreciate his relationship with the putative father; and
- The relationship between the plaintiff and the defendant was a sour one. The court held that while the plaintiff is paying for the child and made him a beneficiary to his EPF, it can never make up for the fact that the child is illegitimate. This was made worse by the fact the plaintiff does not wish and never make the effort to marry the defendant which could have legitimized the child.
To conclude, a putative father’s right to access to their illegitimate child is not an automatic one.
1.  8 MLJ 180.
3. Section 5 (2), Guardianship of Infants Act 1961.
4. Karupayee a/p Paramasua v Ravisanthiran a/l P Marimuthu Kuala Lumpur High Court Originating Summons No. F-24-12 of 2011.
5. George Pathmanathan a/l Michael Gandhi Nathan v Ong Eu May, High Court Kuala Lumpur Originating Summons No S8-24-53 of 2008.