FAMILY LAW FOR NON-MUSLIMS CASES

TOPIC PROMISE TO MARRY (BETROTHAL)

Cases Description Subtopic
Harvey v. The defendant promised to marry the Consideration
Johnston plaintiff within a reasonable time
[1848] 6 CB after her arrival at Lisahoppin for the (Requirements of a valid contract of a
195 purpose of marrying the defendant. promise to marry)
She went to Lisahoppin as requested
but the defendant failed to carry out
his promise. She then sued him for
breach of promise to marry. The
defendant objected on the grounds
that there was no sufficient
consideration.

However, the court held that there

was perfectly good consideration as
the plaintiff went to Lisahoppin as
requested by the defendant.

Spiers v. Hunt The defendant, aged 70, promised Capacity

[1908] 1 KB the plaintiff, 31, to marry her upon
720 the death of his wife. The plaintiff
knew that the defendant was a
married man. The defendant’s wife
who was older than him suffered a
heart ailment from which she was
expected to die suddenly and early.
However, she did not die until 8 ½
years later. The defendant then
refused to marry the plaintiff and the
plaintiff sued him for breach of
betrothal.

The court decided in the favour of the

defendant. The promise was illegal
due to incapacity of the defendant on
the grounds that such contract was
against public policy and morals.

Shaw v. Shaw The plaintiff claimed she did not know Exception to capacity
& Anor [1954] that the defendant was a married
2 QB 429 (CA) man when the promised was made. (Does not know the other party was
Mr shaw represented himself as a married at the time the promised was
widower and went through a made)
marriage ceremony with the plaintiff,
a widow in 1937. They lived together
as husband and wife. The real Mrs.
Shaw was all alive all the while until
she died in 1950. In 1952, the plaintiff
subsequently discovered that she was
all along not legally married to Mr.
 FAMILY LAW FOR NON-MUSLIMS CASES

Shaw. She sued the administrators of

Mr Shaw’s estate for damages for
breach of betrothal to marry by the
deceased.

The court held that she was entitled

to damages as the deceased breached
the promise to marry.

Fender v. St The defendant’s wife already Exception to capacity

John-Mildway obtained the decree nisi of divorce on
[1938] AC 1 the gronds of the defendant’s (On a promise to marry during the
adultery with the plaintiff at the time period of decree nisi)
when the defendant had promise to
marry the plaintiff upon a date after
the decree had become absolute. The
defendant broke off the engagement.
Subsequently, he married another
woman and the plaintiff sued him for
breach of promise to marry.

The court held that although such

promise may prevent reconciliation,
in large number of cases, when a
petitioner had advanced so far as a
decree nisi no reconciliation could
take place. The House of Lords by a
majority decision awarded the
plaintiff damages for breach of
promise to marry.

Nafsiah v.  The parties were Muslims Exception to capacity

Abdul Majid  P sued for damages for
(No.2) [1969] breach of betrothal (A man permitted to marry more than
2 MLJ 175  Counsel for the D attempted one wife based on his personal law)
to rely on the general rule of
law which invalidates a
promise to marry if the
woman knew that a man was
already married at the time
the promised was made
 The HC declined to accept the
D’s argument and relied on
the D’s personal law that
allows him to marry more
than one wife
 The promise was valid and
damages were granted to the
P

(This case was decided in 1969 before

 FAMILY LAW FOR NON-MUSLIMS CASES

the amendment to Art 121 (A) of FC.

After the amendment, the Civil Court
would not have jurisdiction to hear
cases of breach of betrothal between
Muslims parties)

Mary Joseph  D was a Hindu man, who Capacity

Arokiasamy v. promised P, a Christian girl to
Sundram marry and informed her that (Religion one / both parties to the
[1938] MLJ 4 his wife had died. contract to marry does not prevent
 However, D broke his promise them from marrying)
and the P sued him.
 The HC found that there was
no religious impediment
against a Hindu man marrying
a Christian girl
 The promise was valid and
enforceable
Fernandes v.  The court in this case Capacity
Gonsalves AIR acknowledged that in India, A
1925 Bom 97 contract to marry was (Age)
normally entered into
between minors / between a
minor and an adult.
 Held, it could not be said that
the Indian Parliament had not
intended to provide remedies
for minors in the event of a
breach and awarded damages
for breach of contract to
marry between the parties.

Khimji Kuverji The Indian High Court held that a Capacity

v. Lalji Karamsi minor may enter into a valid contract
AIR 1941 Bom to marry (Age)
129
Rajeswary &  P enter into a contract to Capacity
Anor v. marry when she was a minor
Balakrishnan  The D breached the contract (Age)
& Ors [1958]  HC held that a minor could
MLJ 178 enter into a valid contract
referring to the Indian case of
Khimji Kuverji v. Lalji Karamsi

(It has been questioned whether the

decision is applied presently in
Malaysia as the decision in the case of
Rajeswary was made before the
enforcement of LRA (minimum age
for girls is 16 y/o and for boys 18 y/o)