Paternity vs Legitimacy

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.

CAS v MPPL & ANOR

Facts 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...