JUDGMENT

Zabariah Mohd Yusof FCJ:

Introduction

[1] This is an appeal by the defendants against the decision of the Court of Appeal which affirmed the decision of the High Court. The High Court allowed the application by the plaintiff (who claims to be the biological father of a child), for an order, inter alia, to compel a DNA test to be done on a child to determine the paternity of the same.

[2] On 8 August 2023, the Federal Court granted leave to the defendants to appeal premised upon the following seven questions of law:

(1) Whether legitimacy and paternity are two (2) distinct concepts, taking into consideration the recent Federal Court decision in Leow Fook Keong (L) v. Pendaftar Besar Bagi Kelahiran Dan Kematian Malaysia, Jabatan Pendaftaran Negara, Malaysia & Anor [2022] 2 MLRA 29; [2022] 1 CLJ 23; [2022] 1 AMR 23 which compels information in birth certificates to be corrected or amended to reflect available evidence and facts.

(2) Whether s 112 of the Evidence Act 1950, being an evidential construct, would apply to confer legitimacy on a child born during the subsistence of a lawful marriage even where there is scientific evidence available that the said child is the biological child of another male.

(3) What constitutes "no access" between parties to the marriage in s 112 of the Evidence Act 1950?

(4) Whether s 4(3) of the Evidence Act 1950 bars the court from making an order for DNA testing for the purposes of rebutting the conclusive proof where s 112 of the Evidence Act 1950 applies and provides for the legitimacy of a child born during the subsistence of a valid marriage between the mother and her husband.