FMT:
Girl can’t be forced to take
DNA test, Federal Court
rules
Judge says the teenager at the centre of a paternity battle may be exposed to humiliation if found to be the product of an extramarital affair.
PUTRAJAYA: The Federal Court has in a unanimous ruling set aside a Court of Appeal order compelling a minor to take a DNA test to determine her paternity.
Justice Zabariah Yusof said a forced test was an extreme measure that would invade the personal autonomy of the girl, anonymised as C and now aged 16.
“We find it absurd that C would have a ‘right to know’ her biological parents but not the right to object that she might be subjected to a forced DNA test,” Zabariah said in allowing the appeal by her parents, identified as D1 and D2.
In the judgment, Zabariah said C was not even aware that a third party had applied for such a test to be conducted.
Zabariah, who sat on a five-member panel with Justices Hasnah Hashim, Harmindar Singh Dhaliwal, Nordin Hassan and Abu Bakar Jais, said C was 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, that D1 and D2 are her parents,” she said.
Zabariah said being subjected to the test might expose C to odium and humiliation if she was found to be born out of her mother’s extramarital affair, which would in effect relegate her to the status of an illegitimate child.
She said allowing the application for the test would have a negative impact on C, and would impact her existing relationship with DI and D2.
The judge also noted that the courts were not empowered either by statute or common law to order any person, whether adult or child, to undergo a DNA test in civil proceedings.
In the absence of clear legal provisions dealing with fragile familial structures, the judiciary should not act as the forerunner that sets social trends while ignoring the pitfalls and legal implications of its decisions, she said.
“It is wise for a court of law to err on the side of caution when dealing in such matters,” she added.
Last year, the Court of Appeal affirmed a High Court ruling which held that the courts had the power to compel C to take the test.
The lawsuit was brought by a man, identified as CAS, who claimed to be the girl’s biological father.
He named the girl’s parents, D1 and D2, as defendants and sought a court order to compel the teenager to undergo a DNA test to determine her paternity.
In the suit, CAS alleged that he had an affair with the teenager’s mother before her marriage, which continued until the child was six years old.
The man also claimed that he had paid monthly child support in the sum of RM1,000 for the teenager in the past.
He claimed the mother had told him on several occasions that the teenager was his daughter.
In 2021, the High Court ordered that the teenager undergo a DNA test to determine her paternity.
Lawyers YN Foo, Kiran Dhaliwal and Yu Yi Lin represented D1 and D2 while Honey Tan and Tay Kit Hoo acted for CAS.
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