Binstead

- vs -

Partosa

Judgment

KC Vohrah J

1. In the Magistrates' Court Juvencia Autor Partosa applied for maintenance for herself against Peter James Binsted (the respondent) under s 3(1) of the Married Women and Children (Maintenance) Act 1950 (the Act). In her supporting affidavit she claimed that the respondent was her husband and that they had a child from the marriage.

2. The respondent disputed the marriage and that the child was his.

3. When the parties appeared in the lower court the applicant's lawyer applied orally to the court to order the respondent, the applicant and child to, inter alia, undergo a deoxyribonuclei acid (DNA) test. The Magistrate allowed the application and the respondent has appealed against that decision.

4. My concern in this appeal is not with the merits of the maintenance application which is yet to be decided by the Magistrate. I shall only deal with the narrow issue whether the order made by the Magistrate is good in law.

5. At the outset it has to be noted that the Act has no provision to allow any court to make such an order. There is no other general provision in any other legislation that allows that too. This is quite unlike the position in England where s 20 of the Family Law Reform Act 1969 confers the court:

   with the power upon a formal application to direct the use of blood test to ascertain paternity .... . with his consent ....

6. It will be seen that even then the provision does not empower the court to order blood test and even less the power to take blood from an unwilling party. All it does is to permit a direction by the court for the use of blood to ascertain paternity.

7. It is clear that there is no general power provided by legislation or through common law for any court in Malaysia to order a person to undergo a test to ascertain paternity. In the case of a DNA test it is common knowledge that either a blood, tissue or bone specimen will be taken from the person for testing. If a person refuses to submit himself to such a testing he is perfectly entitled to do so; a person cannot be subject to hurt (i.e. suffer bodily pain, disease or infirmity) within the meaning of s 319 of the Penal Code against his will by submitting himself to such testing. Whoever carries out such testing without the person's consent would violate s 323 of the Penal Code for voluntarily causing hurt to the person and a court cannot, in the absence of a specific legislative provision, order such person to submit himself to an unlawful act to be committed on his person.

8. The Magistrate's order is wrong in law and has to be set aside. I allow the appeal with costs.

Legislations

Malaysia

Married Women and Children (Maintenance) Act 1950: s. 3(1)

Penal Code: s. 319, s. 323

United Kingdom

Family Law Reform Act 1969: s. 20

Representation

Sharifah Sharlene (Raja Darryl & Loh) for Appellant

WH Kan (Azam-Malek & Soh) for Respondent

Notes:-

This decision is also reported at [2000] 2 AMR 2002