1. The question of which parent have the legal rights to custody and guardianship over legitimate children in Malaysia is governed by Guardianship of Infants Act 1961 and the Law Reform (Marriage and Divorce) Act 1976.
2. Section 5 Guardianship of Infants Act 1961 clearly spells out that both parents have equal rights over their children where it provide as follows:
Section 5(1) Guardianship of Infants Act 1961:
In relation to the custody or upbringing of an infant or the administration of any property belonging to or held in trust for an infant or the application of the income of any such property, a mother shall have the same rights and authority as the law allow to a father, , and the rights and authority of mother and father shall be equal.
Section 5(2) Guardianship of Infants Act 1961:
The mother of an infant shall have the like powes of applying to the Court in respect of any matter affecting the infant as are possessed by the father.
3. In the event of a divorce, the Court is empowered to award custody and guardianship to either parent or to both.
4. This can be seen in Section 89(1) Law Reform (Marriage and Divorce) Act 1976 which reads as follows:
Section 89(1) Law Reform (Marriage and Divorce) Act 1976:
An order for custody may be made subject to such conditions as the court may think fit to impose and subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child.
5. In so far as the Guardianship of Infants Act 1961 is concerns there were conflicting decisions earlier on as to whether it applies to illegitimate children.
6. It was decided by the the High Court in Low Pak Houng v. Tan Kok Keong [1998] 1 CLJ Supp 357, that the Guardianship of Infants Act 1961 does not apply to illegitimate children where Aziz J ( as he then was) have held as follow:
“I am therefore of the view that section 5 of the 1961 Act is intended to apply to a lawful father and that accordingly the father of an illegitimate child cannot claim guardianship under it”
7. Similar ruling i.e. Guardianship of Infants Act 1961 does not apply to illegitimate children was made in the case of Khor Liang Keow v. Tee Ming Kook [1996] 2 CLJ 631.
8. In view of the aforesaid cases, English laws were applied and it was settled that in the case of illegitimate children, the custody and guardianship belongs to the mother.
9. This was decided in the case of Paton v. British Pregnancy Service Trustees & Anor [1978] 3 WLR 687 where Sir George Baker P held the following:
“ The father’s case must therefore depend upon a right which he has himself. I would say a word about the illegitimate, usually called putative, but I prefer myself to refer to the illegitimate father. Although American decisions to which I have been referred concern illegitimate fathers, and statutory provisions about them, it seems to me that in this country the illegitimate father can have no rights whatsoever except those given to him by statute. That was clearly the common law”
10. Similar position can be seen in the case of Re CT [1957] Chancery Division 48 where Roxburg J have held as follow:
“ the father of a legitimate child required no further fortification of his legal rights, the mother of an illegitimate child required no further fortification of her position; what she might require was maintenance of her illegitimate child, and that, at any rate until 1925, she could get by bastardy proceedings”
11. On the other hand, there were cases that have decided otherwise i.e. Guardianship of Infants Act 1961 applies to illegitimate children.
12. The conflict was finally resolved by the the Federal Court in the case of Sean O’ Casey Patterson v. Chan Hoong Poh & Ors [2001] 3 CLJ where the it was ultimately decided that the Guardianship of Infants Act 1961 applies to illegitimate children and the Court have held as follow:
“ We conclude that the wordings of Section 1(3)(a) Guardianship of Infants Act 1961 is sufficient to imply that this Act applies to an illegitimate child”.
13. Following the decision of the Federal Court in Sean O’ Casey, the highest court of Malaysia have set the path for the biological father of an illegitimate child to have equal parental rights over the illegitimate child within the meaning of Section 5(1) Guardianship of Infants Act 1961.
14. However, in legal tussle for custody of child regardless of legitimate or illegimate child, welfare of the child is still a primary consideration and this was firmly entrenched in Section 11 Guardianship of Infants Act 1961 which reads as follows:
The Court or a judge, in exercising the powers conferred by this Act, shall have regard primarily to the welfare of the infant and shall, where the infant has a parent or parents, consider the wishes of such parent or both of them, as the case may be.
15. Similar provisions are found in Section 88(2) Law Reform (Marriage and Divorce) Act 1976 which reads as follow:
Section 88(2) Law Reform (Marriage and Divorce) Act 1976:
In deciding in whose custody a child should be placed the paramount consideration shall be the welfare of the child and subject to this the Court shall have regard –
(a) to the wishes of the parents of the child; and
(b) to the wishes of the child, where he or she is of an age to express an independent opinion
16. Moreover, there is a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother; Section 88(3) Law Reform (Marriage and Divorce) Act 1976.