FAMILY LAW (GROUP 1 LAW A)

1- WANI HASBI BINTI MOHD IZANI (063735)

2- FATIN NABILAH BINTI FAKHRUL ZAKI (061932)

3- NURWAFA HUSNA BINTI MOHAMAD FAISOL (062859)

4- FATIMA DAYANA BINTI MOHAMAD NOR DIN (063220)

5- NUR SAIEDATUR RAHMAH BINTI MOHD SHAHRIL (062463)

6- NORSUHAILA BINTI AHMAD (062532)

QUESTION

Lushani and Krishnan who were hindus, were married in the Ipoh Registry of Marriages office last
year. It was an arranged marriage. There was an agreement between them that no consummation
of marriage should take place until after the religious ceremony in their local temple took place.
Lushani refused to go through the religious ceremony. She argued that Krishnan was not as
handsome and rich man as her mother had promised.

Advise Lushani whether she could obtain an annulment of her marriage to Krishnan.

ANSWER

Issue: 

(i) Whether the marriage between Lushani and Krishnan is void or voidable?

(ii) Whether Lushani can apply for the nullity of marriage?

Law:

Annulment of marriage is a decree by the court. It is an order by the court to annul a

marriage based on two grounds, in which whether a marriage is void or voidable. Section 69 of the
Law Reform Act 1976 stated that a marriage is considered void in four circumstances.  The first
situation is when a party enters into a contract when he or she is already lawfully wed to another
person. Polygamous marriage is not recognized in Law Reform Act 1976 so a person cannot enter
into another marriage when his or her former marriage is still in force.

The second circumstance is when a male person marries under the age of 18 years or a
female person who is above 16 years but under 18 years marries without a special license granted by
the Minister.

Next, the parties are within the prohibited degree of relationship unless the Minister grants
a special license which involves consanguinity and affinity. 
 Lastly, the parties must be not respectively male or female as stated under Law Reform Act
1976, where it should be between a male and female. Marriage is a permanent relationship if it
occurs between a man and a woman.

In the case of PP v RAJAPAN [1985] 2 MLJ 231, the respondent married the petitioner in
India in 1947, according to Hindu custom. In 1954, the respondent and children migrated to
Malaysia. Their marriage was subsequently registered with the Registrar of Marriage in Malaysia.
Next, in 1984, the respondent went to India again and in March 1984, contracted a second marriage
with Saraswathi, at which time, the first marriage was still subsisting. After that, in May 1984, the
respondent brought Saraswathi to reside in Malaysia, and the respondent was charged under
section 494 of the penal code for committing bigamy.

  Hence, the Supreme Court held that it has no jurisdiction to decide on the validity of the
second marriage, as the act of bigamy was not committed in Malaysia. After this case, there was an
amendment to sections 5, 6, and 7 of the LRA and section 494 of the Penal Code where a person can
be charged for the offense of bigamy even if a subsequent contract of marriage was made outside
Malaysia during the existence of a valid marriage.

Voidable marriage on the other hand according to Section 70 0f the Law Reform Act 1976,
can be classified when these six situations occurred. First, if the marriage has not been
consummated owing to the incapacity of either party to consummate it. It can be either the
petitioner or the respondent who is incapacitated to consummate the marriage. If the party is
unable to consummate the marriage because of his or her incapacity but is well capable of having
sexual relations with another person, then he or she will be taken to be incapacitated to
consummate the marriage.

Next, if the marriage has not been consummated owing to the willful refusal of the
respondent to consummate it. Willful refusal means without just cause. Therefore, if the respondent
can show a just excuse for his or her refusal to consummate the marriage, then the court will dismiss
the petition. 

If either party to the marriage did not validly consent to it, whether in consequence of
duress, mistake, unsoundness of mind or otherwise. Marriage is a contract, therefore, the absence
of consent will invalidate the marriage. 

By the time of the marriage if either party, though capable of giving valid consent, was
(whether continuously or intermittently) a mentally disordered person within the meaning of the
Mental Disorders Ordinance 1952, of such kind or to such an extent as to be unfit for marriage. 

Other than that, if by the time of the marriage the respondent was suffering from venereal
disease in a communicable form, the marriage is also will be considered voidable.

The marriage is also considered voidable if the respondent was pregnant by some person
other than the petitioner at the time of marriage. Thus, the Law Reform Act 1976 stated that the
court should only grant the decree if the petitioner was ignorant of the facts at the time of the
marriage.

Based on the case of RATHEE v SHANMUGAM [1981] 1 MLJ 263, the parties who were both
Hindus had registered their marriage at the Registry of Marriage, Ipoh. They had agreed to celebrate
the marriage according to the rites of the Hindu religion and that was fixed about two months after
the registration of the marriage. However, the respondent refused to conduct the religious
ceremony. In fact, he had no intention of proceeding with the same. He also had told the petitioner
that he would like to have nothing more to do with her. This was a clear refusal from the side of the
respondent. Hence, the court had granted a decree of nullity of the marriage due to the wilful
refusal of the respondent to consummate the marriage.

In addition, the principle in the case of BUCKLAND v BUCKLAND [1967] 2 All ER 300 is
marriage out of fear (duress) is a voidable marriage. Furthermore, the petitioner was a policeman,
employed in Malta. While working there, he went around with a Maltese girl. The girl's parents
forced him to marry her. She was only 15 years old. He married her out of fear. When he returned to
England, he applied for nullity of marriage and the court granted the petition.

APPLICATION:

By applying to the situation above, The Hindu couple Lushani and Krishnan were wed in the
Ipoh Registry of Marriages. The union was prearranged. They made a pact not to get married until
after the religious rite had been completed in their neighborhood temple. The religious ritual was
rejected by Lushani. Krishnan, she contended, wasn't as attractive or wealthy as her mother had
implied. 

Section 69 of the Law Reform Act 1976 which provides requirements about void marriage
cannot be applicable to the marriage between Lushani and Krishnan because it does not fulfill the
requirement under the circumstances that have been stated under the provision of Section 69. 

Next is voidable marriage. According to Section 70 of Law Reform Act 1976, the first
circumstances in which the marriage has not been consummated owing to the incapacity of either
party to consummate it cannot be applicable to the situation given as both parties are not suffering
to the disease that causes them to the incapacitated to consummate in marriage.

  Secondly, the marriage has not been consummated owing to the willful refusal of the
respondent to consummate it. In this situation, Lushani and Krishnan have agreed to not have any
consummation in their marriage before the religious ceremony. 

Thirdly, either to the marriage did not validly consent to it, whether in consequences of
duress, mistake, unsoundness of mind, or otherwise. In this situation, Lushani consented to marry
her husband as it was an arranged marriage and the husband is not as handsome and rich as
promised by her mother which can be categorized under misrepresentation.

Fourth, if either party is capable of giving valid consent, whether continuously or

intermittently. In this case, Lushani and Krishnan both are sound-minded but their marriage was an
arranged marriage, so their consent can’t consider as valid. 

Fifth, Lushani wasn’t suffering from any venereal disease that can make their marriage
voidable.

Moreover, Lushani was forced to marry her husband Krishnan and she wanted to apply for
the nullity of marriage. According to section 70 of the Law Reform Act, 1976 marriage that doesn't
have valid consent from the parties is voidable. The fact that Krishnan is not as handsome and rich as
his mom told her can also be considered a misrepresentation. So, the consent given by Lushina when
she agreed to marry Krishan is not valid and caused the marriage to become voidable.
CONCLUSION:

To conclude, their marriage is considered voidable, thus Lushani may apply for the
annulment of the marriage.