SECTION 112 OF MALAYSIA EVIDENCE ACT: MAJOR AREAS OF CONCERN AND THE WAY FORWARD

Abstract

: In the nineteenth century, when science had nothing to offer and illegitimacy was a social stigma as well as a depriver of rights, the presumption of legitimacy was a necessary tool, the use of which required no justification. In spite of that, as science has blossom tremendously and DNA paternity test has hastened on and as more and more children are born out of marriage it seems that the paternity of any child is to be established by science and not by legal presumption or inference. The problem of largely irrebuttable presumption of legitimacy in the Evidence Act (which operates also as a largely irrebuttable presumption of paternity of the mother’s husband) requires urgently to be improved. The most important change to the presumption must be to “its’ largely irrebuttable character†since it is this that prohibits the court from hearing all relevant evidence that might suggest that, despite the mother being a married woman, it is not her husband who is the father of her child. It should be changed to a rebuttable presumption. Using content analysis methodology of research, this paper intended to highlight the weakness of section 112 of Evidence Act, and with the advancement of technology at a lightning fast pace, perhaps this provision should be amended and allowed the admissibility of DNA test in rebutting presumption of legitimacy in the realm of family law.