PUTRAJAYA, July 3 – A married couple won their appeal in the Federal Court to set aside a Court of Appeal ruling to compel a teenager to undergo a Deoxyribonucleic acid (DNA) test to determine her paternity.
A five-men bench comprising Justices Datuk Zabariah Mohd Yusof, Datuk Sri Hasnah Mohammed Hashim, Datuk Harmindar Singh Dhaliwal, Datuk Nordin Hassan and Datuk Abu Bakar Jais allowed the couple’s appeal to set aside the decision of the appellate court.
In the court’s judgment, Justice Zabariah said it was not in the best interest of the teenager for the court to order a DNA test.
“The very act of making C (the teenager) 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 and half years that D1 and D2 (the couple) 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 an illegitimate child,” she said.
Justice Zabariah said there are no specific written statutory provisions or common law providing power to the courts to order any person, be it an adult or a child, to undergo a DNA test in civil proceedings.
“When dealing with fragile familial structure, the judiciary should not be a forerunner that sets social trends and ignores the pitfalls and legal implications of its decision in the absence of clear legislative provisions.
“It is wise for the court of law to err on the side of caution when dealing in such matters,” she said.
It was over a suit filed in November 2015 against the couple by a man claiming to be the biological father of the girl who was born in 2008 seeking a court order to compel the teenager to undergo a DNA test to determine her paternity.
The man claimed that he and the girl’s mother were involved in an extramarital affair during that period which only ended in 2014.
He also sought a declaration of his status as the girl’s biological father as well as orders relating to maintenance and access to the 16-year-old girl.
In 2021, the High Court ruled in favour of the man and ordered a DNA test be conducted on the teenager to establish her paternity, ruling that the court has the power to order such a test in the best interest of the child.
The Court of Appeal, in March last year, upheld the High Court’s decision, prompting the couple to bring the matter to the Federal Court.
The appellate court also ordered the identities, details and information that may lead to the identification of the parties in the case not to be published.
