Minors can't be forced to take paternity test: Apex court

A child cannot be forced to undergo a paternity test if it violates the minor’s best interest and welfare, the Federal Court ruled.

A five-person bench chaired by judge Zabariah Mohd Yusof ruled that a child cannot be made to undergo such a test by a third party, such as her alleged biological father (anonymised as CAS).

The bench made this decision over an appeal by the parents of the girl - anonymised as C - against a ruling allowing CAS to compel a DNA test to be done to determine her paternity.

In the present case, CAS was seeking a declaration of his status as C’s biological father as well as orders relating to maintenance and access.

CAS claimed to have committed adultery with C’s mother (D1), who is married to another man (D2).

Speaking on behalf of the panel, Zabariah said the lower courts erred in allowing the order because it went against the best interest and welfare of the child.

She noted that there is nothing to indicate that the teenage girl has ever consented to such a DNA test.

“The right to know here is vested in C and C alone. The only way someone else can consent for her is if she is incapable of comprehending the situation and a legally recognised guardian can competently consent on her behalf.

“To allow the application for a DNA test, would present a negative impact on C if one is to discern from the ‘other orders’ to be made once paternity has been determined.

“The aftermath of the DNA order would impact C’s existing legitimate relationship with the defendants (D1 and D2),” Zabariah said on behalf of the bench’s other member judges Hasnah Mohammed Hashim, Harmindar Singh Dhaliwal, Nordin Hassan, and Abu Bakar Jais.

Exposure to humiliation

Zabariah said the bench found that a forced paternity test amounted to an extreme measure that invaded C’s personal autonomy.

“We find it absurd that C would have a ‘right to know’ her biological parents but not a right to object, that she might be subjected to a forced DNA test.

“What more in the present appeal, C does not even know there is an application by a third party for a DNA test to be conducted. C is not seeking to know her paternity.

“The very act of taking C to do the DNA test is in itself damaging, disrupting her status quo and putting into question the only reality she has known for the past 15 ½ years - that D1 and D2 are her parents.

“She may be exposed to odium and humiliation if found to be born out of her mother’s extramarital affair and hence is an illegitimate child,” Zabariah said.

Zabariah noted that C’s birth certificate reflected D2 as her father and that she was born during the marriage between D2 and D1.

She said being a biological father to someone does not automatically mean that he is the father of the child recognised in law.

She said to enjoy the recognition of the law, a cloak of legitimacy must be layered upon the factual determination of biological parentage.

She noted that there is a presumption under Section 112 of the Evidence Act 1950 that a father in a lawful marriage is both the biological and legal father of the child.

“Thus, it does not seem right to us that the cloak can be purported to be shared with a third party as of right, regardless of whether the third party is the biological father of the child, much less when the third party is unsure and unable to prove his purported paternity.

“There must be something more to justify doing so,” she ruled.

DNA test

CAS had sued C’s parents, seeking an order for the teenager to undergo a DNA test.

CAS claimed that he had an affair with the girl’s mother before marriage, which continued until the child was six years old.

The man alleged he paid monthly child support in the sum of RM1,000 for the teenager.

He contended that the mother informed him several times that the girl was his daughter.

In 2021, the High Court ordered the girl to go through a DNA test.

The Court of Appeal last year upheld the ruling.

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