TAN KAH FATT & ANOR v. TAN YING

[2023] 2 MLRA 525

TAN KAH FATT & ANOR v. TAN YING
Federal Court, Putrajaya
Abdul Rahman Sebli CJSS, Hasnah Mohammed Hashim, Mary Lim Thiam Suan FCJJ
[Civil Appeal No: 02(F)-82-10-2019(B)]
18 January 2023

JUDGMENT

Mary Lim Thiam Suan FCJ:

[1] My learned brother, Abdul Rahman bin Sebli, CJSS and my learned sister, Hasnah binti Mohammed Hashim, FCJ have read this judgment in draft and have agreed that this judgment forms the unanimous judgment of this Court.

[2] While there are two central issues for this Court's consideration, the real issue here concerns the right of illegitimate children to inherit under the laws of intestacy in this country. This question vexes the non-Muslim community due to the interplay of two key legislations in this respect - the Distribution Act 1958 [Act 300] and the Law Reform (Marriage & Divorce) Act 1976 [Act 164]. The claim to this right sometimes, unfortunately, strains relationships with the innocent child caught in nether land. Often, the existence of the illegitimate child is not known until one of the parents has demised, and there is no provision for such children, inter vivos. The circumstances in the present appeal are a clear illustration although the existence of the so-called 'illegitimate' child was well-known. She was and is very much part of the larger extended family.

[3] These are the four amended questions posed for our determination:

i. Whether the term 'child' as defined in s 3 of the Distribution Act 1958 includes a child born of a Chinese customary marriage?

ii. Whether the term 'child' in s 3 of the Distribution Act 1958 read with s 75(2) of the Law Reform (Marriage and Divorce) Act 1976 includes a child born of a Chinese customary marriage as a legitimate child for succession purposes?

iii. Whether the term 'child' and 'issue' in the Distribution Act 1958 should be read in a non-discriminatory way in the light of art 8 of the Federal Constitution to include all the natural born children of the deceased?

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