1. ) Balachandar A/L Rathnam v 1. ) Nirossha Balachandar (BL-58-36-03/2024)

Antara Balachandar A/L Rathnam (No. KP : 640608-10-7443)

Daivanai A/P Subramaniam (No KP : 671223-10-5094) …Pemohon-pemohon

Dan XXXXXX XXXXXXXXXXX (No. daftar Sijil Kelahiran BW472333)

Pegawai Kebajikan Masyarakat Daerah Klang …Responden-responden S/N xovp9zGPGEsf4rhjmJ56A GROUNDS OF JUDGMENT (Enclosure 1) This is my judgment in respect of the Applicants’ application seeking for an adoption order against the 1st Respondent in the originating summons as per Enclosure 1. The application was made pursuant to Section 3,4,5 and 10 of the Adoption Act 1952 (Act 257). Brief Facts [1] The 1st and 2nd applicant are husband and wife. In year 2007, the 1st and 2nd applicant was informed by an acquaintance that there was a baby girl who had been born at the Klinik Salina dan Rumah Bersalin in Klang, Selangor who had been abandoned by her biological mother at the clinic. [2] On 14.7.2007, the 1st and 2nd applicant both went to the clinic and the doctor at the clinic informed them that the child was born on 7.4.2007 and had been abandoned by her biological mother there, but there was no information regarding the background of the baby girl's biological parents. [3] At all material time, the applicants had been married for more than three years and were not blessed with children, the applicants agreed to S/N xovp9zGPGEsf4rhjmJ56A adopt the baby and raise it as the applicants' child. The applicants also named the child as XXXXXXXX. [4] On 18.4.2007, the applicants were advised by the doctor at the Klinik Salina dan Rumah Bersalin to apply for the child's birth registration at the Jabatan Pendaftaran Negara, Negeri Selangor (“JPN”) and to place the applicants information in the child's parents' information section. This is because no information regarding the child's biological parents was obtained. [5] Based on the forms filled up by the applicants at the JPN Selangor, JPN has issued an original birth certificate to the child with a citizenship status under the registration number BW47233 in which it has the information of the applicants as the child's parents. The JPN has also issued the child's identity card (Mykid) to the child. [6] Since then, the child has been under the care and custody of the applicants at all times until now. The applicants have raised the child and have given the child all their love as if it were the applicants' own child. The applicants have also registered the children to attend school at Sekolah Kebangsaan Perempuan Methodist Klang, Selangor to ensure that the children receive a good education from an early age. S/N xovp9zGPGEsf4rhjmJ56A [7] On 22.10.2018, when the child has attained 12 years old, the applicants made an application to issue a child's identity card at the JPN. Then, a child's identity card was issued by the JPN with official receipt number C19-005895. According to the counsel during the hearing of the application for adoption, the problem arose when the child has to sit for Sijil Pelajaran Malaysia (SPM) in year 2024, where the birth certificate of the child had been disputed by the Kementerian Pelajaran Malaysia after a reference has been made to the JPN. [8] After the consultation with the JPN, the applicants filed this application to regularize the information in the birth certificate of the child and intended to properly adopt the child. The counsel for the applicants had informed the Court that in order to regularize the birth certificate of the child, JPN had advised applicants to change the information of parents to the child in the birth certificate as “tiada maklumat diperolehi” and a new birth certificate of the child will be issued but without a citizenship status. [9] The applicants however are not in agreement to follow the JPN’s advise and decided to proceed with this application for an adoption. The 2nd respondent in this case had objected to the application in enclosure 1 and 7 to appoint the 2nd respondent as ‘guardian ad litem’ since there the issue as to the birth certificate of the child is still in question. After having S/N xovp9zGPGEsf4rhjmJ56A heard the submissions by the applicants and the 2nd respondent, this Court has dismissed the application without costs. Hence, the appeal. Submissions by the applicants [10] It is the submission of the applicants that applicants have complied with all the requirements under the Section 4 of the Adoption Act 1952. The applicants have attained the age of twenty-five and more than twenty-one years older than the child in respect of whom the application is made. Both applicants and the child are ordinarily resident in Peninsular Malaysia. It is the applicants’ contention that the child has been continuously in the care and possession of the applicants since birth. [11] In furtherance, the 1st applicant has a stable job as a Laboratory Technician at Ramsay Sime Darby Malaysia Sdn Bhd while the 2nd applicant works as a Senior Buyer at McBride Malaysia Sdn Bhd. Financially, both applicants have full ability to bear all expenses and the child's living expenses. The applicants have also taken care of the child and have attended to the child’s needs with love since the child’s birth. [12] The applicants have also submitted that they have attempted to find the biological mother to the child but no avail. According to the applicants, the search for the biological mother was made to the Klinik S/N xovp9zGPGEsf4rhjmJ56A Salina dan Rumah Bersalin, Klang but the doctor has informed no records available. The applicants then made an advertisement in the News Straits Times dated 28.5.2024 to notify the biological mother of this application and to obtain consent. Nevertheless, until to date the biological mother is undetectable. The applicants contended that they have complied with Section 5 (1)(c) of the Act. [13] The counsel for the applicants has also submitted that the issue of the birth certification is not the paramount consideration in granting the order for an adoption but for the welfare of the child. Findings: [14] I have read the application, affidavits and submission of the applicants in detail. I do not think it is necessary to repeat the submission of the parties as it has been adequately dealt with in length in the respective submission. I take the view that applicants’ application must be dismissed. My reasons inter alia are as follows: [15] The 2nd respondent i.e Jabatan Kebajikan Masyarakat Negeri Selangor had objected to the application for an adoption as well as to in the Enclosure 7 since the issue as regards to the birth certificate of the child is still in question. According to the 2nd respondent, they have S/N xovp9zGPGEsf4rhjmJ56A contacted JPN and JPN requires the applicants to make a DNA test and rectify the false statement in the birth certificate so that the JPN can issue a new birth certificate to give effect to this application for an adoption. However, the applicants refused to follow JPN’s advise due to fear of deprivation of citizenship of the child in the new birth certification. [16] Based on the affidavit filed by the applicants in Enclosure 2, I find it is undisputed fact that the applicants are not the biological parents of the child as they have admitted that the child was taken after the child had been abandoned by the biological mother at Klinik Salina dan Rumah Bersalin Klang. Nevertheless, the birth certification produced and tendered to this Court is the birth certificate with name and status of the applicants appear as parents of the child. For ease reference, the said birth certificate in exhibit “P-3” of Enclosure 2 is produced as follows :- S/N xovp9zGPGEsf4rhjmJ56A [17] I find that the exhibit produced by the applicants in “P-3” and the affidavit sworn by the applicants are contradictory whereby the birth S/N xovp9zGPGEsf4rhjmJ56A certification produced still indicates that applicants are named as the father and mother to the child. [18] As regards to this issue, the counsel for the applicants had submitted that the birth certification is not the paramount consideration in granting an order for an adoption. The applicants have complied with all the requirements stipulated in Section 4 and 5(1)(c) of the Act. [19] In fact, the counsel for the applicants informed the Court that the JPN had already known that the birth certification was inaccurate based on the coding given by the JPN. JPN can always issue a new birth certification after the order for adoption has been granted. Nevertheless, this contention made by the counsel to the applicants on coding was without any supporting document or verification from the JPN nor from the 2nd respondent. [20] I am not agreeable to the submission made by the counsel for the applicants that the birth certification is not the paramount consideration to the application before this Court. I find that the identity of the child and statements given in the forms for the application for adoption must be true. [21] I refer to Section 13 of the Adoption Act 1952 where it states the duty of the JKM to investigate whether the statements in the form of S/N xovp9zGPGEsf4rhjmJ56A application required by subsection 11(1) are true and complete, particularly as regards the date of birth and the identity of the child. Section 13 of the Act reads as follows:- “(1) It shall be the duty of the guardian ad litem to investigate as fully as possible all the circumstances of the child and the applicant, and all other matters relevant to the proposed adoption, in order to safeguard the interests of the child before the Court, and, in particular, it shall be his duty to include in his investigation the following questions-

whether the statements in the form of application required by subsection 11(1) are true and complete, particularly as regards the date of birth and the identity of the child;” [22] Being named as the 2nd respondent to the application and as the proposed ‘guardian ad litem’, the JKM has to ensure that all the statements given in the application not only correct but are true. Since there are contradictory sworn statements in the affidavit compared to the documentary evidence produced involving the status of the mother and father of the child, this Court must be vigilant in responding to the said application. I find the argument and objection made by the 2nd respondent has merit and substantiated. Therefore, I find that the identity of the child S/N xovp9zGPGEsf4rhjmJ56A and the statements given in the application are still uncertain. On that score alone, I dismissed the application. [23] For this, I am guided by the case of Pen v. Kal & Anor [2022] 10 CLJ 456, where Evrol Mariette Peters J held as follows :-

The fact that the applicant had raised the first respondent in the Chinese tradition and culture did not detract from the fact that the first respondent is a Muslim. The second respondent had exhibited a copy of the first respondent’s birth certificate, which indicated that the first respondent was born and still is a Muslim. The discovery of this birth certificate was through the efforts of the guardian ad litem pursuant to her role in accordance with s. 13 of the Adoption Act to establish the identity of the first respondent. There was no reason to dispute the veracity of the birth certificate adduced by the guardian ad litem. In any event, since it was undisputed that the first respondent’s mother is a Muslim, it could not be doubted that the religion of the first respondent should follow suit. On that basis alone, this application was dismissed. (paras 11-16)” [24] Even though, the above case is related to the non-application of the Adoption Act 1952 to a muslim child pursuant to Section 31 of the Act, S/N xovp9zGPGEsf4rhjmJ56A but the principle in that particular case as regards to the identity of the child is very much relevant to our case here before this Court. [25] In the case before me, the information in the birth certificate show that the applicants are parents to the child so as to give effect to the citizenship of the child, whereas in their sworn statements, the biological mother of the child was not known to both applicants nor the doctors of the Klinik Salina & Rumah Bersalin, Klang. Therefore, I am not hesitated to dismiss the application without costs. [26] I must say that it is not the duty of this Court to make rectification as to the information given in the birth certificate of the child or to regularize the error or omission made by the applicants by having the adoption order. Any clerical error or substance error are to be made by the Superintendent Registrar and the Registrar General of the Birth and Death of Malaysia and not by this Court. Section 27 (1),(2),(3) and (3A) of the Births and Deaths Registrations Act 1957 (Revised 1983) Act 299 which reads as follows :- “(1) No alteration in any register shall be made except as authorized by this Act. S/N xovp9zGPGEsf4rhjmJ56A

Any clerical error which may from time to time be discovered in any register may be corrected by the Superintendent Registrar, in such manner as the Registrar-General shall direct.

Any error of fact or substance in any register may be corrected by the Registrar General upon payment of the prescribed fee and upon production by the person requiring such error to be corrected of a statutory declaration setting forth the nature of the error and the true facts of the case, and made by two persons required by this Act to give information concerning the birth, still-birth or death with reference to which the error has been made, or in default of such persons then by two credible persons having knowledge to the satisfaction of the Registrar General of the truth of the case; and the Registrar General may if he is satisfied of the facts stated in the statutory declaration cause such entry to be certified and the day and the month and the year when such correction is made to be added thereto.

Where the Registrar-General, the Superintendent-Registrar or the Registrar is satisfied that from an inquiry held under section 37B an error of fact or substance in any register exists, the error of fact or substance may be corrected by the Registrar-General.” S/N xovp9zGPGEsf4rhjmJ56A [27] Coming to other submissions raised by the applicants, I find that the consent of the biological mother pursuant to Section 5 of the Act has not been dispensed with as there are no record that Enclosure 5 had been granted by this Honorable Court. The minutes in the Case Management System (CMS) showed that this Honourable Court had given ample time for the applicants to rectify the issue of the birth certification with the JPN. However, applicants chose not the follow the direction given by the JPN and requested this Court to proceed with the application. [28] It is clear that s. 12(2) of the Adoption Act requires the first respondent’s mother to be named as one of the respondents in this application, unless her consent had been dispensed with pursuant to s. of the Adoption Act. Without the order of the dispensation, a written consent was required from the biological mother as per Rule 7 of the Adoption Rules 1955 (“Adoption Rules”) and Form 2 of the First Schedule to the Adoption Rules. [29] In addition to the above, I am also guided by the cases of TPC v. ABU & Anor [1983] 1 LNS 15; [1983] 2 MLJ 79 and Re Baby M (An Infant) [1994] 1 LNS 195; [1994] 2 MLJ 635, where in both cases, the court had emphasized the approach of taking welfare of the child as the paramount consideration overriding others in an application for adoption S/N xovp9zGPGEsf4rhjmJ56A was not the correct approach. In the former case, it was stated by Edgar Joseph Jr J (as he then was) in the following passage: “Before the Sessions Court, both parties were represented, and based entirely on affidavit evidence, the President approved the application for adoption being guided by the principle that the paramount and overriding consideration was the welfare of the child. With respect, this is not the correct approach. Welfare is not the paramount and overriding consideration as it is in wardship, guardianship or custody proceedings: (re H a Minor [1982] 3 All ER 84, 92 Paramount consideration in this context means consideration outweighing all others. However, in adoption applications, welfare of the child is certainly the consideration that outweighs any other: (per Lord Simon in Re D (an Infant) (Parent’s Consent [1977] 1 All ER 145, 150, 160.” [emphasis added] [30] For reasons stated above, the applicants’ application for an adoption is dismissed without costs. I hereby order so. S/N xovp9zGPGEsf4rhjmJ56A Prepared by : Nurulmardhiah (NURUL MARDHIAH BINTI MOHAMMED REDZA) Hakim Mahkamah Sesyen 2, Klang, Selangor Dated: 21.3.2025 For the Applicants: M/s Daim & Gamany. Petaling Jaya, Selangor. For the 2nd Respondent: Jabatan Kebajikan Masyarakat, Daerah Klang, Selangor. S/N xovp9zGPGEsf4rhjmJ56A