Children conceived out of wedlock can still bear father’s name, says ex-syarie judge

Ex-syarie judge Ismail Yahya contends a child can be considered legitimate as long as the father does not admit that the child is born out of wedlock.

PETALING JAYA: An ex-syarie judge has reminded Muslims in the country that a child conceived out of wedlock can be considered legitimate if certain conditions are met.

Speaking to FMT, Ismail Yahya, who is a former Terengganu mufti, said the basis for this opinion is that Islam recognises the concept of a fasid (irregular) marriage.

A fasid marriage is one in which there is an impediment to validate the marriage.

Ismail said it could be made a fully valid marriage by removing the impediment, or by remedying the prohibition.

For example, when a Muslim married his wife’s sister, the marriage would be fasid, but he could validate it by divorcing his wife.

“According to contemporary Islamic scholar Prof Dr Wahbah Al-Zuhayli, a child conceived out of a fasid marriage is still considered legitimate,” Ismail said.

“Contemporary Islamic scholar Dr Abdul Karim Zaidan also writes that if a father demands that his child conceived out of wedlock be considered legitimate, then the child is to be legitimised as long as the father does not admit the child was conceived out of wedlock.”

Ismail also said the same ruling applied if the mother gave birth short of six months after her marriage to the father of the child according to the Islamic lunar calendar. The six-month period is held as proof by some Islamic legal scholars that the child is conceived out of wedlock.

He said the reason for this ruling is to protect both the best interests of the child as well as the dignities of those involved.

In Malaysia, the patronym “bin Abdullah” is used by the National Registration Department (NRD) to register children conceived out of wedlock.

However, the Court of Appeal ruled in July that the NRD had acted outside its powers by using the surname “Abdullah” to register a Muslim child conceived out of wedlock, against the mother’s wish to use the father’s name.

The ruling sparked controversy among Muslim Malaysians, with some welcoming it while others condemned it as contravening existing fatwas (edicts). Some also expressed concern the ruling would lead to more cases of “zina” (fornication).

The case has since been brought to the Federal Court for its decision. -FMT