High Court, on Thursday upheld the verdict issued by the Family Court, stating that they are unable to oversee a case submitted by the state under civil action. The case aimed to determine the father of a child born to a Maldivian man and an Indonesian woman four months after they got married abroad.
The case was filed under civil action because the child's mother returned to Indonesia shortly after the child's birth, claiming to renew her passport, and did not come back. This led the child to be placed in state custody. The child had been raised by the mother of the Maldivian man, who informed the Ministry of Gender that she could no longer care for the child after the child turned five years old.
The decision to place the child in state custody was made due to the absence of a legal connection between the child and the man under Sharia law and the country’s constitution.
The state first went to the Civil Court in this case. This was to determine the child was a Maldivian national and to ensure they get all the rights a Maldivian should. While this case was ongoing, the state submitted another case to the court to determine the child’s paternity. The Civil Court, in its ruling, determined that until the child's ancestry was established, they could not issue a verdict regarding the child's nationality.
The Family Court ruled that the case filed with them could not be accepted on the ground that the application for proving the paternity was not filed with the application form, the conditions outlined in the Family Act for such cases had not been met, and that it was not within the Family Court’s jurisdiction to oversee cases to determine the father of a child under civil action.
Therefore, the state appealed the Family Court’s ruling in the High Court
The individuals involved in this case were married on April 19, 2007, in Sri Lanka. Four months later, on September 9, 2007, the woman gave birth at Indira Gandhi Memorial Hospital in Malé. According to the verdict, the midwifery form submitted to the court identified the mother of the child as the Indonesian woman. In the section where the father's name was to be filled, there was initially a dash. Later, the Maldivian man's name was added. Even though the form indicated it was the father that provided this information for the form to be filled, the father’s signature was absent.
The court said even if it is to accept the couple had married lawfully, the child was born four months and 20 days after the marriage was registered. However, there was an amendment on the document where "nine months" was initially recorded but was later crossed out.
The shortest period in which a husband, under Islamic law in addition to Maldivian Family Act and regulations, should have a child or consider it to be his child is six months from the date of marriage, and one year from the date of divorce as per the Islamic calendar. Therefore, in this case, it cannot be held judicially that the man is the father of the child.
The couple, who had married in Sri Lanka, had their marriage registered in Maldives only after the child was born as well.
In support of Justice Mohamed Saleem's opinion, Justice Mohamed Niyaz said that the basic principles followed in the Maldives in matters such as childbirth and proof of paternity are the same as those mentioned in Islamic jurisprudence. Even though the laws of some jurisdictions allow to bring legitimacy to children born into marriage, or before marriage, the verdict said “the principles determined in Maldives was born from the Islamic law and is in accordance to the Maldivian’s faith and traditions.”
According to the Islamic law, it is accepted when a child is born within marriage. However, the shortest period for the child to be considered legitimate is if the child was born six months from the date of marriage, as per the Islamic calendar. If it is shorter, they are considered to have had premarital sex and the paternity of the father cannot be legally determined.
The high court said it was not clear whether the woman's husband had done anything to deny that the child was not his. The High Court, however, said that even the state knows the paternity will not fall on the man, they were trying to declare him the father “by entering through another door.”
“This is shocking and do not make sense,” Judge Niyaz said.
The judgment highlighted that even the man previously identified by the state as the father could not be legally recognized as the child’s parent. Due to the inability to prove the child has a Maldivian parent, granting Maldivian nationality, a birth certificate, or a National ID card to the child has not been possible. The state further stated that given these circumstances, and considering the failure to locate the child's mother in Indonesia to establish an Indonesian identity, the best course of action for the child was to confer Maldivian citizenship upon them.
The High Court, however, said that what the state was doing to declare the child as the child of a particular man was not in accordance with judicial and legal procedures.
"In cases where it is not possible to determine who the child's father is under the law and regulations in force in the Maldives, if a particular man is declared to be the father of the child, the result will be a punishment for the man," the judgment said.
Justice Mohamed Niyaz's opinion said, "I do not believe that the state should go towards the back door to achieve the desired result, as the Family Act states how the paternity of the child can be determined, unless the person who has to ask these questions under the law brings it up.”
He said that even if it is the state, the struggle for rights should be based on the principles laid down in the law rather than an act of passion.
The judge said that proving the father by civil standards is not be within the jurisdictions of family laws, regulations and Islamic jurisprudence in the Maldives.
“Therefore, the state’s attempt to introduce a “judicial father” and a “legal father” to the Maldivian legal system, is foreign to the legal system of Maldives, and far removed from the faith and traditions of the Maldivians, in my opinion,” Judge Niyaz said.
The judge said this could lead to a number of adverse consequences.
While it was proved that the child was born to Indonesian, the court noted that the state had not done enough to grant them Indonesian citizenship. Observing that every child born to a Maldivian should be eligible for citizenship, but it has to be done in accordance with the law system of the country, the High Court said that the man who claimed to be the child’s father in the midwifery form was not charged in the very least.
The high court also said that if this case is proceeded on the belief that any child born to a Maldivian should be granted citizenship, then the paternity of the child should be proved on legal and judicial grounds as well.
Judge Huzaifa Mohamed's opinion in this case is different. The opinion set aside the family court's decision that the registrar's decision was correct and that it was a matter for the court to oversee it.
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