BETROTHAL

Betrothal Not a requirement of marriage-

- The requirement of marriage is capacity of a person to enter into a marriage contract
and formality
All previous laws has been repealed, no longer valid, personal laws of the non-Muslim,
customary marriages are not repealed but must be in accordance with the law reform, law
reform prohibit polygamous marriage- s5- only abolish statutory ordinances- s-4- all marriages
still valid
According to the common law
- Betrothal is a valid contract and it has legal effect, it can give raise to damages if there is
a breach of contract. Follows civil law, as in Malaysia, there is no provision in LRA and
other laws. No specific provision, we may refer to the common law and equity by virtue
of civil law act.
The elements of betrothal is the same like contract
- Promise, capacity of a person to enter into a contract, consent, consideration( subject
matter) betrothal ring or conduct, the contract itself must be in words/ conduct or
writing
Consideration Established in the case of Harvey v Johnson
Offer- in this case, johnson said to the woman that he will marry her if she go to Ireland and live
there.- she act according to the offer/promise as requested by johnson. however johnson refuse
to marry her and therefore he is said had breach the promise. The pff sued for the breach of
promise to marry. The court agreed that, there is a good consideration as she went to Ireland as
requested. the promise to marry within reasonable time after the pff arrival in Ireland
Position in England Whether England still apply the common law rule with regards with the position of betrothal.
• Old Common law- Breach of the promise- Action for damages
After WW II, action for damages- rarely brought since it is difficult to prove damages
England - Action for breach of promise to marry has been abolished by the Law Reform
(Misc.Prov.) Act 1970- as it was difficult to prove the damages now
- betrothal is no longer considered as a legal contract. It does not make the default party
to be responsible for the breach of contract. The innocent party cannot sue for breach of
contract
Position in Malaysia Malaysia do not follow the present English law as per section 3 and 5 of CLA 1956, the common
law consider
- betrothal as a valid contract which can give raise to damages if there is a breach of
betrothal
Position in common 1. Promise to marry made by a bachelor is enforceable-
law - still a single person-
1. Promise to marry - there must be a good consideration.
made by a bachelor - If there is a breach of promise to marry, action can be taken against the promisor.
Harvey v. Johnston- good consideration – go to ireland
Frost v Knight- Promise to marry made by a bachelor. In this case, the man failed to marry the
woman, she sued the man and succeeded the claim
2. Promise to marry 2. the general rule is that a Promise to marry made by a married man is unenforceable, not a
made by a married valid contract- against the law and public policy
man even though it is made upon conditions such as:
i) upon the death of i) upon the death of promisor’s spouse- after the death of the wife
promisor’s spouse the promise is not valid because he is still a married man at that time he made the promise,
ii) upon a divorce married man cannot make a promise to married another woman unless the wife already died
being granted. ii) upon a divorce being granted.
In a process of divorce-will marry upon a divorce being granted- the promise is not valid because
he is still a married man
 Wilson v. Carnley- the promise to marry made by a married man during the lifetime of the wife.
He will marry her after the death of his wife- the woman sued him for damages after he failed to
marry her after the death of his wife. The court held that, the promise made by him is void ab
anitio because he is still a married man at that time he made the promise
Spiers v. Hunt- the contract/ Promise to marry made by a married man is unenforceable, not a
valid contract- against the law and public policy and immoral
No action can be taken against him unless it falls under the exception
Exception under the 1) The plaintiff has been deceived by the promisor / false declaration.
common law The man/promisor did
The Promise to marry • not disclosed the fact that he is a married man and
made by a married • deceiving the girl about his status-
man is enforceable • he made a false declaration-
Case: Shaw v Shaw he did not disclosed the fact that he is a married man, he made a promise to
1) The plaintiff has marry the woman but later he failed to do so. The woman came to the court and claim for
been deceived by the damages. Based on the evidences, the court granted damages and Judgement was given in favor
promisor / false of the plaintiff who has been deceived by the promisor about the status of the man.
declaration 2) Promise is made after the decree nisi is pronounced, to contract a marriage after the decree
being made absolute.
2) Promise is made • The man in the divorce process-
after the decree nisi is • undergone the process of reconciliation-
pronounced, to • make an effort that they have reconciled first –
contract a marriage • must be recommendation that the marriage cannot proceed anymore-
after the decree being • the court must satisfied with documents-
made absolute. • the court will grand a period of decree nisi(still husband and wife), a period where they
discussed and settled about agreement in ancillary relief/ distribution of matrimonial
property, custody of children. (no hope for reconciliation)
• The court will granted a decree absolute
The exception for the general rule will apply when the promise to contract a marriage with the
girl is made after the decree nisi is pronounced, to marry after the decree being made absolute
- considered as a good promise, falls under the exceptions of gen rule- married man-
decree nisi mostly will proceed to decree absolute.
3rd exception 3) when a man is permitted to have a plurality of wives by his personal law
Only applicable Chinese and hindu customary law recognised plurality of wives, those day- if a man made a
before the LRA promise to marry a woman during the lifetime of his wife- the promise is valid- if he refuse to
(our previous law) marry the woman, he can be sued for damages
He can practice polygamy as his personal law allowed him to do so
Nafsah v abdul Majid- the court recognised a Muslim man can marry more than 1 wives, so
when made the promise to nafsiah to marry her, he is a married man, she had a good ground to
sue him after he failed to marry her.
Under the Islamic law- betrothal is not a valid contract-
3rd exception- not applied to cases between muslim
Position of betrothal • In Malaysia, there is no express provision in the Law Reform Act on betrothal and
in Malaysia other specific legislation.
• As there is a lacuna in our law, we would refer to common law and may apply
Common Law principles by virtue of s. 3 & 5 of Civil Law Act 1956.
• According to common law, betrothal is a valid contract.
• The applicable provisions under the Contract Act 1950 are sections 10,11, 12 and
24 which relate to the capacity, consent, and consideration of both parties to the
contract of promise to marry
 Section 10. made by the free consent of parties competent to contract, for a lawful consideration
and with a lawful object, and are not hereby expressly declared to be void.
Section 11) competent to contract who is of the age of majority according to the law to which he
is subject, and who is of sound mind, and is not disqualified from contracting by any law to which
he is subject.
Section 24- considerations and objects are lawful, and what not (e) the court regards it as
immoral, or opposed to public policy.(married man)(no lawful consideration)
No need to be evidenced by writing.
So long as a promise is supported by some kind of valuable consideration, then it is enforceable-
in form of conduct requested by other party.
Remedy- damages- If the contract was breach- other party should get damages-
monetary The only remedy is action for damages
compensation- to put It is mutual – either man and woman can sue . Damages not measured by fixed standard, and
the pff to the original normally depending on the facts and circumstances of the case.-look at other circumstances
position Nafsiah v abdul majid- damages for the child
Eg. The plaintiff is pregnant. This fact may increase the damages.
**Islamic law- betrothal not a contract- only can sue for the return of the gifts- anything spend
for the preparation of the marriages
 DOMICILE
Definition A place of residence/ordinary habitation.
The place where one has his permanent residence, to which if absent, he has the intention of returning.
- In order to apply the law of the country where he stay- it can be change
- A concept of law to determine what system of law should govern a person’s civil status ie. in
HOBES V family law
HOBES That place is properly the domicile of a person in which he has
• voluntary fixed the habitation of himself & his family,
• not for a mere special & temporary purpose,
• but with present intention of making it his permanent home
• unless & until something which unexpected or the happening of which is uncertain shall occur
to induce him to adopt some other permanent home.
The Difference 1. Domicile determines a person’s civil status eg. rights & duties in family law,
between • a person can have only 1 domicile at any 1 time • no documentary evidence to prove
Domicile, 2. Citizenship • determines a person’s political status eg. right to vote • can be proven by documentary
Citizenship & evidence eg. IC/Pasport
Residence 3. Residence • To reside/to have one’s usual dwelling place or abode
FOX V STIRK [1970] 3 All ER 7 (CA) 3 principles: (residence is part of domicile)+intention
1. A person can have more than one place of residence at any one time 2. Temporary presence does
not make a person resident there 3. Temporary absence does not deprive a person of his residence
Importance of 1. To determine the validity of marriage – whether both parties have the capacities
Domicile for 2. To determine the jurisdiction of the court in divorce cases- both parties must domicile in malaysia
family law 3. To determine the status/legitimacy of child- there must be a valid marriage- the father must be
domicile in Malaysia- the child deemed to be legitimate
TYPES OF Domicile of Origin
DOMICILE • obtain at birth – domicile of the place of domicile of origin
• never destroyed→keep it aside
• remain in abeyance when new domicile is acquired
• revived upon relinquishment of the domicile of choice
Element Domicile of Choice
• may be acquired after majority age→
1. age of • 2 requirements:
majority • i) Objective -place of residence -bought voluntary • ii) Subjective -intention to reside at that place
permanently
2. place of • Objective & subjective requirements must co-exist.
residence • CASES: 1) Joseph Wong Phui Lun v Yeoh Loon Goit [1978] 1MLJ 236 Chua J: “...the intention to make
the residence permanent need not be in existence at the time of his first arrival in the country where
3. intention to the domicile of choice is alleged to be acquired. It may be formed after residence has been continued
reside at that for sometime. But as soon as that intention is formed then the acquisition of domicile of choice is
place completed........”→ the domicile of choice not need acquired automatically
permanently 2) Shaikh Abdul Latif→ whether there is a valid marriage
The deceased from hong kong, migrated to Malaya→became a muslim→ sold all properties in
hongkong→ held that yes, he had acquired the domicile of choice in Malaya
3. Udny v Udny (1869) LR 1 Sc & Div 441- the plaintiff is from England, he wish to stay at France→which
law applicable to him→whether he acquired Domicile of Choice at France, Domicile of Origin?
→PRINCIPLE domicile of origin remain in abeyance when new domicile is acquired
4. IRC v Bullock [1976] 3 All ER 353→ man from canada→ when to England for 40 years- married an
English lady- has the intention to go back after he retired- the wife refused to follow him- stay in
England until the wife died- whether he acquired domicile of choice of England – NO- because of
intention- his domicile is domicile of origin
Domicile of • depends/follows the domicile of another person eg.:
Dependency • i) married woman – her domicile will follow her husband’s
(position - Position in England s.1(1) Domicile & Matrimonial Proceeding Act 1973 – after 1st January
under 1974, married woman may acquire domicile of choice(new)
common law) • Position in Malaysia
- Subject to the old position before 1st January 1974- married woman will depends on the
Married husband – her domicile will follow her husband’s
woman • ii) child :
- legitimate – follows the father even if the parents’ divorce/father died
Child - illegitimate – follows the mother
Case- DOMICILE OF WIFE
• Ang Geck Choo v Wong Tiew Yong [1997] 3 MLJ 467- wife from Singapore- the court has no
jurisdiction→ married- follow the husband’ domicile
• Held: The wife’s domicile upon marriage was a domicile of dependency & she retains it until her
marriage is dissolved
APPLICATION 1. Dual Domicile test (DDT)
OF RULES OF Both parties must have the capacity to marry according to the law of his/her respective domicile
DOMICILE IN Two person of different domicile-
DETERMINING Same domicile- have to fulfil the capacity to marry according to the law of his/her respective domicile
THE VALIDITY Case: Re Maria Hertogh [1951] MLJ 64
OF MARRIAGE • Maria was 14, solemnize according to Islamic law- parents from holland – father claimed for
custody and the marriage was void- no consent from the father - because she was a minor
1. Dual • Principle- use DDT- refer to maria- she has no capacity according to law of domicile of
Domicile test holland- court try to apply the exception, the court will consider- when one of parties has no
(DDT) capacity according to her law of the domicile, look at the husband domicile, whether his
domicile is Singapore or Kelantan, need to prove capacity and the law of his place of domicile
2. Intended also recognize the marriage to be valid- failed to prove
Matrimonial Exception to DDT –
Home Test 1.Marriage is valid according to the law of the domicile of one party
(IMHT) 2. the marriage is solemnized in the country where that party domiciled (which recognised such
marriage as a valid marriage).
CASES i) Sottomayor v De Barros (1877) 3 PDI
• the parties were cousins- the male from england- female from Portugal- according to law of
England marriage between cousins is valid- portugal not- the woman has no capacity as her law
prohibit marriage between cousins.
• Held: The validity of marriage celebrated in England between persons of whom the one is an
English, & the other a foreign domicile is not affected by any incapacity which, though existing
under the law of such foreign domicile, does not exist under the law of England.
Marriage was solemnized in England – law recognize
2. Intended Validity of the marriage is determined by the law of the country in which the party intended to set up
Matrimonial their matrimonial home.
Home Test Not at the capacity to marry according to the law of his/her respective domicile but the law of the
(IMHT) country where the parties intended to set up their matrimonial home.
Case: Radwan v Radwan [1972] 3 All ER 1026
The man is a muslim Egyptian man, he married to an English lady. The marriage was solemnised in
france, at Egyptian embassy- the law of Egypt, the went went to Egypt to set up their matrimonial
home. He is a married man. Later on applied for divorce in England,
Issue- Validity of the marriage- use second test, she cannot marry to a married man- she has no
capacity to marry a married man - the marriage was void according to DDT
 Held: The essential validity of a marriage was to be determined by the law of the country in which the
parties intended to make their matrimonial home.-egypt – the marriage was valid- the court has
jurisdiction
APPLICATION -S.3 Application of LRA-
OF RULES OF 3. (1) Except as is otherwise expressly provided this Act shall apply to all persons in Malaysia
DOMICILE IN and to all persons domiciled in Malaysia but are resident outside Malaysia.
LRA 1976 (2) For the purposes of this Act, a person who is a citizen of Malaysia shall be deemed, until
the contrary is proved, to be domiciled in Malaysia.
general rule- domicile is not part of citizenship= citizen in Malaysia = deemed to be domiciled

• -S. 26 Solemnisation of marriage abroad- in Malaysian embassy

26. (1) A marriage may be solemnized by the Registrar
Provided that the Registrar shall be satisfied—
(a) citizen of Malaysia;
(b) capacity to marry
(c) that, where either party is not domiciled in Malaysia, the proposed marriage, if solemnized,
will be regarded as valid in the country where such party is domiciled
- it must valid in the country- fulfil the capacity to marry according to his/her law of domicile
• -S.48 Jurisdiction of court in divorce proceedings
48. (1) Nothing in this Act shall authorize the court to make any decree of divorce except—
(a) where the marriage has been registered or deemed to be registered under this Act; or
(b) where the marriage between the parties was contracted under a law providing that, or in
contemplation of which, marriage is monogamous; and
(c) where the domicile of the parties to the marriage at the time when the petition is
presented is in Malaysia
-They have to be domiciled in Malaysia time when the petition is presented is in Malaysia
• -S.49 Additional jurisdiction of the court
• -S.75 Status of child of void marriage
(2) Subject to the provisions of this section, the child of a void marriage shall be treated as the
legitimate child of his parent if, at the time of the solemnization of the marriage, both or
either of the parties reasonably believed that the marriage was valid.
s.75 (3) Subsection (2) applies (a) only where the father of the child was domiciled in Malaysia
at the time of the marriage
- marriage not a valid at all from the beginning – not fulfil the capacity
- void- status of the child- but by virtue of s.75(2)
1. shall be treated as the legitimate child of his parent if both or either of the parties reasonably
believed that the marriage was valid.
2. where the father of the child was domiciled in Malaysia

• -S.104 Recognition of marriage contracted abroad (outside-outside)

- A marriage contracted outside Malaysia other than a marriage solemnized in a Malaysian
Embassy
- shall be recognised as valid for all purposes of the law of Malaysia if—
- (a) it was contracted in a form required or permitted by the law of the country where it was
contracted;
- (b) each of the parties had, at the time of the marriage, capacity to marry under the law of the
country of his or her domicile; →use DDT
- (c) where either of the parties is a citizen of or is domiciled in Malaysia, both parties had
capacity to marry according to this Act.
• -S.105 Recognition of marriage contracted at the Foreign Embassies in Malaysia( inside-inside)
In Malaysia but foreign embassies
 MARRIAGE REQUIREMENT
Marriage requirement There 5 capacity requirements that had been provided in the Law Reform (Marriage & Divorce)
Act 1976. age, consent of parent, parties not related to each other, the marriage must be
monogamous, must be in different gender
Age of the parties – Section 10 of the LRA – Min. age 18 years for both, unless for the female who has completed her
s.10+s69b 16th. year of age -license granted by the Chief Minister
• Non compliance – A marriage which takes place after the appointed date shall be void
by virtue of section 69
• (b) a male person marries under 18 years of age or
• a female person who is above 16 but under 18 marries without a special licence granted
by the Chief Minister under section 10
• If one of the parties failed to fulfilled the requirement of age- the marriage is void
s.69 govern the marriage under age 18 are void
Inderjit Singh v Jinder Pal [1975
Valid – according to custom-
Since under the religion, custom or usage of both parties, they could lawfully marry even
though one of them was under the age of 18 years
- and the fact that the marriage was valid according to the law of the country where it was
celebrated the marriage was accordingly a valid one.
Consent of the parent Section 12. Those who below 21 year of age- still under below the age of 21- must get the
Section 12 consent either the mother or father
and a minor who is not previously married, must get a written consent from the Chief Minister. –
case: Re CHS [1997] before the amendment-only consent of the father- it is impracticable to
obtain his consent-mother give the consent-she should applied to the court- high court should
give the consent.
(5)notice of the application shall be served upon the person who refused to give consent.
consent from the Chief Minister
Does not make the marriage void- not being solemnize – not mentioned about void
Consent of the parties Both parties must consent to the marriage.-
s.22(6) Def. of marriage in Hyde v Hyde state the marriage must be voluntarily entered into. Element of
valid marriage- In case of Hyde v Hyde (1866), marriage is defined as a voluntary union for life of
one man & one woman to the exclusion of all others.
– Section 22(6) No marriage shall be solemnized unless the Registrar is satisfied that both the
parties to the marriage freely consent to the marriage.
– Section 70 ( c )- (c) that either party to the marriage did not validly consent to it, whether in
consequence of duress, mistake, unsoundness of mind or otherwise;
Not consent- was force by the parents- she has right to nullify the marriage
– Section 37. Penalty for another person who force anybody to marry
Kindred and affinity - relationship between parties-they cannot be related to each other blood, marriage,
s.11 consanguinity
s.11(4) Section 11 : parties are prohibited to marry if they are within a prohibited relationship . – Special
s. 69(c ) exception for the Hindus.-to marry his sister’s daughter - custom allow uncle niece(sister)
s9 of adoption act s.11(4) adopted child cannot marry adopted parent- adopted siblings
1952 page 95 + s9(1) of adoption act 1952-the adopted child shall be considered as legal child of the adopter
S.9(7)-normal sibling, consanguinity CANNOT
– Noncompliance with section 11 – the marriage will be void – section 69(c) ) the parties are
within the prohibited degrees of relationship unless the Chief Minister grants a special licence
under subsection 11(6)
5) Monogamous – avoidance of marriage by prior subsisting and subsequent marriage.
marriage
Section 5, 6, 7 of the – Section 5, 6, 7 of the LRA & section 494 PC. – Non compliance – the marriage will be void –
LRA section 69(a) – Cases: PP v. Rajappan – Pong Teck Yin
s.5(1) the parties already married before LRA, the marriage are deemed to be valid according to
previous law(custom)→they are not divorce
(2) if the previous marriage have cease to existence- divorce-died- no longer exist-
• either party can remarry under LRA, during the continuance of the new marriage under
LRA,
• they cannot contract another marriage
(3)no marriage before LRA, marriage after LRA
• during the continuance of the marriage under LRA, they cannot contract another
marriage
(4) CUSTOM marriage can-
• but they have to abide by the requirement that the marriage must be monogamous→
• s.24-govern right to solemnize the marriage according to custom and usage
• s.24(2), religion
• (s.24(1),s.24(3)-registra remind the party the marriage must be monogamous
Section6. (1) Every marriage contracted in contravention of section 5 shall be void.
Sec6(2) already had previous marriage, after the enforcement of LRA, he married to another
person according to custom, outside Malaysia, the secondary wife cannot claim for inheritance-
after the enforcement the LRA
(2nd marriage after LRA according to custom outside malaysia-NO)
s.7-mentioned that the offence under the penal code- offence of bigamy, marrying again-s.494
of penal code-govern the bigamous marriage –
s.7(2)-committed outside/inside Malaysia-committing the offence of bigamy and can be charged
under s494- bigamy is an extra territorial offence- the court has extra territorial jurisdiction to
hear the case – he can be extradited to malaysia from any place outside malaysia to attend the
trial.
s.69(a)-bigamy-marriage declared to be void by the virtue of section 69

case: pp v rajappan – DECIDED IN 1982 after the enforcement of LRA

the man married to the 1st wife in india- they came to Malaysia and registered their marriage-
went back to india-married the second wife-bring her to Malaysia-1st wife contested that 2nd was
void by virtue of section 5,6,7 carged for bigamy-s.7 not yet amended-( committed outside/inside
Malaysia-committing the offence of bigamy and can be charged under s494- bigamy is an extra
territorial offence)-no subsec 2- the offence of bigamy under s494 because the marriage was
solemnized outside Malaysia-bigamy not yet an extra territorial offence- the court has no extra
territorial jurisdiction to hear the case→cannot be chrge→the court held that the marriage is
void- but he cannot be charged
now-he can be charged.
6) Biologically male Hyde v Hyde – voluntary union of one man and one woman… – Must be from a different sex.
and female Under the common law, the marriage must be between one man and one woman.
– Non compliance – marriage will be void – section 69 (d).- Section 69(d) A marriage which takes
place after the appointed date shall be void -the parties are not respectively male and female.
Same gender
– Those who have underwent a sex-change operation –gender reassignment surgery
- Corbett v Corbett- married to a famous model- not a female- underwent surgery to become a
female- the husband claim that the wife is not natural woman – want to nullify the marriage-
chromosome -the msrrige can be nullified as the woman cannot be recognizes to be a female
from birth
Gender of a person is determine at birth
– Lim Ying v Hiok Kian Ming Eric- the husband was not a natural man- wife applied the marriage
to be nullified – principle in Corbett v Corbett- Gender of a person is determine at birth
In hyde v hyde there some of the requirement related to the definition which are consent of the
parties, the parties must Biologically male and female, however the def doesn’t mentioned
about the age, consent of parent and kindred and affinity.
 6th REQUIREMENT - REGISTRATION OF MARRIAGE
Generally all marriages should be registered
– Relevant sections:- Part 1V – Registration of marriages
– Section 27- Registration (general rule- if the marriage was solemnized under LRA then it must be
registered under LRA )→requires marriage to be registered
– Section 25 – Entry in marriage register (after the marriage has been solemnized the registra will register
the marriage into the marriage register
– Section 31- Registration of foreign marriage
( marriage solemnize outside Malaysia embassy need to register within 6 months or can come back to
Malaysia- 6 month from the date of arrival) the marriage is valid according the law of the place were it
was solemnize, still valid- why still have the option to register in Malaysia
31. (1) Where any person who is a citizen of or is domiciled in Malaysia has contracted a marriage abroad,
not being a marriage registered under section 26, such person shall—
(a) within six months after the date of such marriage, appear before the nearest or most conveniently
available Registrar abroad; and (b) register such marriage
(1A) Where before the expiry of six months under paragraph (1)(a), either or both parties return to
Malaysia and the marriage was not registered, such person shall— (a) within six months of arrival in
Malaysia, appear before any Registrar; and (b) register such marriage
→must be read together with section s104-Recognition of marriage contracted abroad
Which govern ( marriage solemnize outside Malaysia embassy) the parties have to fulfil the
requirement under LRA as well
s104. A marriage contracted outside Malaysia other than a marriage solemnized in a Malaysian Embassy,
High Commission or Consulate under section 26, shall be recognised as valid for all purposes of the law of
Malaysia if—
(a) it was contracted in a form required or permitted by the law of the country where it was contracted;
(b) each of the parties had, at the time of the marriage, capacity to marry under the law of the country of
his or her domicile; and
(c) where either of the parties is a citizen of or is domiciled in Malaysia, both parties had capacity to marry
according to this Act.
– Section 33- Voluntary registration of marriages previously solemnized before LRA under religion or
custom (prior to LRA)marriage was solemnize before LRA-
under the law of custom are deemed to be valid and registered under section. 4( automatically valid). if
they do not register -okay- it’s deemed to be registered- but if they want to register again- no problem-
section 33 provide Voluntary registration
SECTION 26 Solemnization of marriages in Malaysian Embassies - must fulfil the capacity requirement
where one of the parties solemnized- it is regarded as marriage solemnize in malaysia
Section 34 – Legal effect of registration-
To protect – Registration has no legal effect to the validity of the marriage. (registration does not determine the
previous validity of marriage)
marriage – However, there are two views from the decided cases pertaining to the validity of the customary
previously marriages which is not registered
solemnized If the marriage is solemnissed under LRA- it is mandatory for the marriage to be registered under LRA-
before LRA registration is part of procedure of marriage- if not register the marriage will be considered as void

General rule- if the marriage is solemnized under LRA then the marriage must be registered-mandatory
Exception for
• marriage solemnized before LRA, save by S.4 +nothing in LRA affect the validity of marriage prior
to LRA
• marriage solemnized abroad – s.104+ s. 31- marriage solemnize outside Malaysia embassy need to
register at the nearest or most conveniently available Registrar abroad within 6 months or can
come back to Malaysia.
 • It means that even though they didn’t register under the lra/here, the marriage is not void as long
the marriage is valid according the law where they solemnized the marriage
Marriages solemnised prior to LRA 1976 – see section 4(2)
- if valid under custom/ religion shall deemed valid
-but may opt for voluntary registration under section 33
Marriage solemnised abroad and outside Malaysian Embassies – s.104, s. 31 + s.34
-if fail to register, would be recognized as valid according to the lex loci celebrationis/ law of the place of
celebration
S.104(a) it was contracted in a form required or permitted by the law of the country where it was
contracted;(If they contracted the marriage abroad, not in the Malaysian embassy, it must be in
accordance with the law govern of the place where it contracted),it is considered valid according to the lex
loci celebrationis)
If they want to register under the LRA in Malaysia - the court will look at the other requirement under
s.104
- (c) where either of the parties is a citizen of or is domiciled in Malaysia, both parties had capacity
to marry according to this Act.
- If not fit the requirement- in malaysia shall be void-they have to solemnize again under the LRA
First view –The marriage is still valid even though it was not registered.
Second view – Marriage which was not registered under LRA 1976 is void
Both view for marriages solemnized under the LRA in Malaysia. if the marriage was solemnsed in malaysia
it must be according to LRA
First view – Chinese customary marriage, it was not registered.
The marriage Tan Sai Hong v. Joremi Kimin [1997] 5 CLJ 614 –
is still valid Chong Sin Sen v . Janaki a/p Chellamuthu [1997] 5 MLJ 411 – Held : The Chinese customary marriage was
even though valid and cannot be declared invalid by reason of non-registration.
it was not Leong Wee Shing v Chai Siew Yin [2000] 1 CLJ 439 – the parties solemised Chinese customary marriage
registered. according to the LRA- But they did not register-have all the evidences- when the husband died- the wife
claim for the inheritance- mother in law argued that the marriage was not registered therefore she was
not entitled for the inheritance
Whether the Chinese customary marriage is void for nonregistration. – High Court held: The marriage is
valid on the ground that a Chinese customary marriage had taken place between the parties & although it
was not registered, s.34 of LRA 1976 had ‘validated it’. (apply the general meaning of s.34)
CHAI SIEW YIN V LEONG WEE SHING [2004] 1 CLJ 752 ( Appeal ) – COA : Affirmed the High Court’s
judgement and dismissed the appeal – Gopal Sri Ram JCA: – “…there is no provision in the Act that
declares / renders void any marriage contracted between non-Muslims in accordance with the customary
ceremonial rites of the community to which they belong. On the contrary, s. 34 declares that a marriage is
otherwise valid is not invalidated merely because it has not been registered under the Act. That is the
intention of Parliament becomes clear when regard is had to the marginal notes to s. 34 of the Act.”
- Agree that s.34 does not validate or invalidate marriage merely because of non-registration
Second view Cases: T V. O [1994] 4 CLJ 593 The court referred to s. 22(4) of the LRA and decided that since the parties
– fail to comply with the provision, the so called marriage in 1998 was a non event / void anitio.
Marriage - S22(4) Every marriage purported to be solemnized in Malaysia shall be void unless a certificate for
which was marriage or a licence has been issued by the Registrar or Chief Minister or a statutory declaration
not under subsection
registered Submit to the registra the certificate for the marriage to be solemnized/license/ a statutory
under LRA declaration regarding the capacity to marriage( when the parties want to marriage under custom)
1976 is void Yeoh v Chew [2001] 4 CLJ 631 Abdul Hamid Embong J: “…..for the purpose of this Act, this customary rite
alone, however recognisable & acceptable is insufficient to clothe it with legal validity for no matrimonial
court will recognise a tea ceremony per se performed after 1 March 1982, as marriage…. …..in my view, an
invalid marriage by reason of non-solemnization such as in this case cannot be rendered valid merely
because it was not registered. The very solemnization of this marriage itself was in question as it had not
complied with s. 5(4) of the Act. It was a non marriage from the start, for which this court could not exert
its jurisdiction”
- The marriage is void if there is no registration- must fulfil part iii- procedure-mandatory to
register
- Main section that give rights to the parties to marry according to their custom-s.5(4) but must
complied with part III
Leong Wee Shing case – Fed Ct judgement- marriage was void since it was not registered. – Status of the
children – illegitimate – Not entitled for maintenance under s. 3(2 ) of the Married Women and Children
(Maintenance ) Act 1950.
Nonregistration will render the marriage void because of s.5(4) and s.22(4)→s.34-applies only to
marriages solemnized under the LRA

Defective marriage
No marriage from the
beginning
Differences:-
Explained by Lord Greene
MR in the case of De
Reneville v De Reneville:
Void marriage
Voidable marriage
Jurisdiction of the court
- To hear nullity
cases
- Whether the
court has
jurisdiction or not
- Must be in
Malaysia
GROUNDS
Void marriage
NULLITY OF MARRIAGE
Void- from the begining
Voidable- at that time of solemnization until parties realized that they not fulfilled cretain
condition- render the marriage will be voidable
- Until Order of the court- valid period of marriage
“A void marriage is one that will be regarded by every court in any case in which the
existence of the marriage is in issue as never having taken place and can be so treated by
both parties to it without the necessity of any decree of annulling it;
a voidable marriage is one that has been treated by every court as a valid subsisting
marriage until a decree annulling it has been pronounced by a court of competent
jurisdiction”.
1)Valid marriage does not exist at the time of the solemnization of the marriage
2) decision as to whether the mar is valid/ void can be made at the time of solemnization
3)the validity may be challenged at anytime during/after the lifetime of the parties
4) may be challeged by either Parties/third parties
No defence
Valid marriage exist until annulled by a court
2) decision as to whether the mar is valid/ void- only after an event has taken place
subsequent to the solemnization
3) validity may be challeged only during the lifetime of the parties
4) may be challenged only by the
Parties to the marriage
Defence available
Section 4 (3)
- All previous marriage will be dissolve by 3 ways-
- Court nay declare the marriage to be void/ nullify the marriage
Section 8
- Present marriages solemnize by LRA- dissolve by 3 ways
- Declared the marriage nullity
Section 67 LRA (a)+(c) OR (b)+(c)
a- register under LRA
b- monogamous
c- compulsory- must reside/physically in Malaysia at the commencement of proceeding
Yong Fui Phin v Lim Tow Siew [1996] 3 MLJ 479.
Court has no jurisdiction since there is nothing to show that both parties were resident in
Malaysia at the time of the commencement of the proceeding.
Other person also can nullity the marriage
Cheng Sun Chuen v Lee Chee Seng [1983] 2MLJ 371.
It was established that after the passing of the LRA, the court cannot under section 67 of the
Act grant a decree of nullity of marriage unless both the parties to the marriage reside in
Malaysia at the time when the proceedings were commenced
Ng Wee Whye v Wong Sook Heng [1978] 1 MLJ 100.
Section 69
a)monogamous marriage- 6
b) age -10

Voidable marriage
Ground-subs-a-f
71- bars
Situation where cant use
the ground under s70
-reason for the marriage
not to be declared to
voidable
1) Standard of s.
intercourse which is
legally recognised by law
-ordinary and complete
2) Sexual intercourse
requires ability to achieve
full penetration which
must be more than
transient in nature.
- must full, complete
3) The sterility of either
party / the inability of the
husband to ejaculate is
irrelevant.
4) Effect of using
contraceptive sheath/
condom
c) within prohibited relationship-11
d) not respectively male and female
*consent not void but voidable
Section 75 (7) adds another grounds i.e. S. 22(4) and s. 72.
-It shows that section 69 is not exhaustive.
S. 22(4)- procedure- submission of notice from the registrar – license
Custom- submit their written declaration regarding capacity to marriage
- If not submit – marriage void
Section 72
- Any other ground under other laws (foreign) that can make the marriage void
- Marriage solemnize outside Malaysia
- Private international law- family law govern by that country
- It shows that section 69 is not exhaustive.- not only ground which can make the
marriage void
Section 70
a ) Marriage was not consummated owing to the incapacity of either party to consummate
it.
A. Consummation
There must be a sexual intercourse which is ordinary and complete. Thus, marriage is held
to be consummated as soon as the parties have sexual intercourse after the solemnization
of the marriage.
Capable or not
Case: D.E v A.G (Expert opinion)
Dr. Lushington : “ In order to amount consummation, the intercourse must be ordinary,
complete and not partial”.
-H could not achieve full penetration because of a deformity of the wife’s vagina.
- ordinary and complete in terms of achieving
W. v W.
Evidence shows that , the husband even though was able to penetrate, but it was for a
short while as his erection is quickly collapse.
Brandon J.: “ Full and complete penetration is an essential ingredients to complete
intercourse….I do not think that there is any authority which binds me to hold that any
penetration however, transient, amount to consummation of marriage.” Therefore, nullity
was granted.
R. v R.
Even though there is no ejaculation, still it amount to consummation as long as it is full,
complete and ordinary
- complete not partial / ejaculate the sperm or not is irrelevant.
COWEN V COWEN (1945)- NO LONGER VALID
COA: No consummation when the husband has worn contraceptive sheath / practice coitus
interruptus.(natural way to control birth)
- if wear condom then not considered as ordinary and complete consummation
BAXTER V BAXTER (1947)
HOL: “The marriage has been consummated notwithstanding the husband using a
sheath.”
- overruled Cowen v Cowen as to the usage of contraceptive sheath
ordinary and complete consummation- full penetration
CACKET V CACKET (1950)Hodson J. “ Marriage was consummated by coitus interruptus”.
B) Incapacity to a) Types of incapacity
consummate i) physical inability- physically cannot- D.E v A.G (Expert opinion)- wife’s vagina
ii) psychological inability- only in mind
Either party - Maybe either general or as regards to the particular spouse only.

L. V L.(1956) MLJ 145

Several attempts were made to consummate the marriage but failed since he cannot
maintain an erection. Medical inspectors appointed by the court found that the husband
was normal and was still capable to have a sex with another woman.

Held: Void. Incapacity not merely based on physical inability but also psychological inability
- NOW- voidable- psychological inability
Psychological inability Psychological inability must amount to invincible repugnance not by merely unwillingness /
reluctance.- must beyond that
invincible repugnance- very serious
SINGH V SINGH Wife petitioned on the ground of inability to consummate (psychologically
impotent). Held: Dismissed the petition as nothing of a psychiatric / sexual aversion on her
part.( normal willingness/reluctant cannot)
b) Incapacity must be 1) Cannot be cured at all
incurable 2) Can be cured only through an operation but attended with danger which affect his /her
life.
3) Refused to submit to an operation.

Refer to Rule 26 of the Divorce and Matrimonial Proceedings Rules 1980 – medical inspector
will be appointed.

S. v S. – Where the court adjourned the case for further evidence from the result of the
operation.
Wife incapacity – the only way- operation
Burden of proof Who can petition?
Either party.
On the petitioner.
HARTEN V HARTEN“ You can also petition for nullity due to your own incapacity”.

To be a ground for nullity, the incapacity must have existed at the date of the marriage
and not resulted from injury or accident which occurred subsequent to the marriage ( ie.
before the consummation of the marriage)

- Already consummated the marriage- accident – cannot use as a ground- must look
at the first consummation
70(b) that the marriage Willful refusal is not simply because a spouse refused to allow sexual intercourse to take
has not be consummated place but refused to do so without just excuse.
owing to the willful
refusal of the respondent BAXTER V BAXTER
to consummate it. L. Greene MR ; “A wife may refuse to allow intercourse for a considerable period of time
because of nervous / coyness. Husband would then be expected to act as a reasonable man
- Willful refusal of and take reasonable steps to help his wife to overcome her reluctance before he
the respondent successfully petition for willful refusal by her”.
- Normal if refuse to consummate at first
DREDGE V DREDGE

YONG FUI PHIN V LIM
TOW SIEW
Exception to general rule
ii) As to the nature of the
ceremony and party did
not appreciate that he
The husband made an every effort to consummate the marriage but was refused by the
wife. Then he sought a decree of nullity on the ground of willful refusal of his wife .
Held : The wife had willfully refusal to consummate the marriage and that the petition was
granted.
- No valid reason for the wife not to consume the marriage
HORTON V HORTON
“ Willful refusal connotes a settled and definite decision come to without just excuse and
the whole story of the marriage must be looked at.”
The whole history of the marriage may relates with any condition precedent to sexual
intercourse. Thus, failure to bring about such condition may amount to willful refusal
without just excuse.
- Any agreement about the sexual intercourse
Eg: condition to undergo a religious/customary ceremony prior to the consummation of the
marriage.
Agreed not consummated the marriage until the husband arrange for customary marriage
- Will be valid agreement – condition precedent to sexual intercourse
JODLA V JODLA- civil marriage – church ceremony - sexual intercourse after that– never
consummated – husband refused to arrange- without lawful excused
RATHER V SHANMUGAM
KAUR V SINGH- singh ceremony – husband not make any arrangement – he had no
intention at all – never persuade to have sexual intercourse with him
TAN SIEW CHOON V TAN KAI HOI
KWONG SIN HWA V LAU LEE YEN
From the above cases, one of the ground that the court has considered as ‘just excuse’ is in
the case the parties have agreed that the civil marriage will be followed by religious
ceremony.
Thus, in such a situation it is ‘just excuse’ for not to consummate the marriage. However, if
one of the parties reluctant or refuse to go through / arrange for the religious ceremony, as
agreed, then it will amount to willful refusal ‘without just excuse’.
The wife had just excuse
Husband had no just excuse – guilty party
At the time of the marriage registration, both parties mutually agreed that they would
continue to live separately until a wedding ceremony under chinese custom was celebrated
at a later date. P filed to nullify the marriage as the marriage was not consummated as they
did’nt go through the customary marriage due to unforeseen circumstances.
Held: The evidence merely showed that the marriage was not consummated as both parties
did not go through the customary marriage due to unforeseen circumstances. It was
therefore insufficient to establish that the marriage was not consummated without just
excuse.
- P had not shown that there was willful refusal to consummate
- No physical/ psychological reasons
UNREPORTED CASE:
James Foong J: “A marriage cannot be nullified on the ground of non-consummation
because of religious or customary belief as it is not a condition in civil law marriage”
As long as undergone civil marriage- then the marriage already valid- no need to wait the
husband arrange for customary ceremonies
MEHTA V MEHTA [1954] All ER 60
The petitioner had mistakenly married the respondent in a ceremony which was thought to
was contracting a be a conversion ceremony
marriage.
VALIER V VALIER
Section 70 ( c ) Section 70 ( c ) – either party did not validly consent to the marriage whether in
- Non-Consent consequence of :- 1) Duress2) Mistake3) Unsoundness of mind or otherwise/similar
1) Duress -means – marriage was contracted out of fear or threats where the party was induced to
enter into a marriage, which in the absence of such compulsion, the marriage would never
been entered into.
Griffith v Griffith [1944] I. R 35
Haugh J: “duress begin from gentle form of pressure and end with physical violence
accompanied by threats of death”

Szechtar v Szechtar [1970] 3 All ER 905

Held: “if a formal consent has been brought by force, menace or duress – a yielding of the
lips, not of the mind, it has no legal effect-→ the woman force to stay in war camp – agreed
to marry to be out of the camp- necessity →nullified because no consent

MOSS V MOSS
There must be a voluntary consent of both parties…..It has been repeatedly stated that the
marriage may be declared null on the ground of duress.

H v H/ SZECHTER V SZECHTER
BUCKLAND V BUCKLAND
The cases illustrate an indirect duress caused by some external circumstances for which the
petitioner is not himself responsible for it.
- man was forced to marry the girl – charge for criminal charge -rape a minor – no charge if
marry her – applied for nullity because no consent
SCOTT V SEBRIGHT The case illustrates a direct duress / duress by the other party to a
marriage.
Differentiate between:- i) Disagreeable situation – a person enter into a marriage as a result of social obligation –
marriage will not void as in the case of SINGH V SINGH
- not duress- not amount to non- consent – there must be real threat
ii) Real threat – marriage void.
2) Mistake i) As to identity of the other contracting party.
RE C AND D
1. identity Bell J : “Marriage void as there was a mistake as to the identity of the respondent. She
thought she was marrying a male whereas in fact she was marrying a combination of both
male and female”.

The judgment of the case was followed in LIM YING V HIOK KIAN MING ERIC
2. nature of the ii) As to the nature of the ceremony and party did not appreciate that he was contracting a
ceremony marriage.
MEHTA V MEHTA [1954] All ER 60
The petitioner had mistakenly married the respondent in a ceremony which was thought to
be a conversion ceremony
- she doesn’t know that the ceremony of marriage together
VALIER V VALIER
3) Unsoundness of mind If a person did not know that he was entering into a marriage / unable to understand the
nature of the contracts into which he was entering.- the solemnization of the marriage
In the beginning- during the solemnization already confirm unsound of mind
Section 70 (d)
 The decree shall not be pronounced solely because the party is mentally disordered person.
It must be shown that the party is suffering from mental disorder to such a degree as to be
unfit for marriage.
 RE ESTATE OF PARK  Singleton J; “The correct test is whether he/she is capable of
understanding the nature of the contract into which she /he was entering i.e. capable of
appreciating that it involved the duties and responsibilities attached to the marriage”. 
BENNET V BENNET

Section 70 (e) Suffering from a venereal disease in a communicable form.

The person who has vulnerable disease – which can transmit in various from- relates to
sexual disease
HIV – can be vulnerable disease
Section 70 (f) The respondent was pregnant by some person other than the petitioner. –
- WIFE STOCKER V STOCKER
Section 70(e) (f) subject to section 71(2)-
section 71(2)-having the knowledge (disease/pregnant by someone else)
requirement that the party (who claim) no knowledge at all before the marriage -specific
bars to relief
- Knew- still proceed- cannot use as the ground
BARS TO RELIEF Section 71 – refers to something that might prevent the court to grant the petition to nullify
General rule- bars apply the marriage.
to all section 70 Ss (1)- general bars to relief applies to all ground under s70 including (e) and (f)
Ss (2)- specific bars to relief – applicable only s70 including (e) and (f)

The onus of proof is on the Respondent, but if he choose not to raise any of these bars, the
court will grant the decrees if the ground has been made out.

Section 71(1) – must satisfy both (a) and (b).-having the knowledge AND whether would be
unjust to be grant nullity
- Knew respondent incapacity before the marriage
Case : W v W
• Married in 1941. Attempts by the husband to consummate the marriage were
unsuccessful. On the suggestion of the husband the parties adopted a child. Then
husband left the wife and later presented a petition on the ground of wife was
unable to consummate the marriage.
• COA: Evershed MR:- “ Has there been conduct here on the part of the husband of
such character that the court must say that he has approbated the marriage and has
affirmed its existence and validity so that it is inequitable and …also contrary to
public policy, that his petition should be granted?”.
• Unfair to the wife – adopt child- the wife believe that the husband wouldn’t nullity
the marriage because he agreed
PETTIT V PETTIT
• The marriage was never been consummated owing to the husband’s incapacity.
The husband then found another woman and applied for nullity of the ground of his
impotency.
• The court refused to grant the petition as after such a long time of marriage, the
wife had remained faithful even though she was deprived of sexual intercourse. It
would therefore unfair and inequitable to grant the decree.
-he himself applied for nullity- the husband is impotent- faithful wife-unfair to her
Consequences:- 1) Marriage - retrospective effect
Void/voidable Void- no marriage at all
 Voidable- was valid at the time of the solemnization but considered as nullity the day the
court granted nullity
Period – period of valid marriage
2) Status – woman as a feme sole - no right – considered as single woman

3)Child – born after the enforcement of LRA?

- Section 75 –- father must be domiciled in Malaysia
i) void- treated as legitimate child --declared by the court- parent fulfilled condition-
1. both/either 1believe+
2. father domicile- legitimate child
ss(3)a/b – born after the enforcement of the LRA
ii) voidable- 75(1)- Ss(1) - deemed to be legitimate- if the voidable marriage

DOMESTIC VIOLENCE IN MALAYSIA

(a) Definition Domestic violence includes:-
• Causing fear of Physical injury
WHAT ARE • Physical injury
THE ACT OF • Compelling to engage in any conduct, sexual or otherwise
DV: • Confining the victim without consent
• Causing mischief the victim's property which causes the victim to suffer distress due to
SECTION 2 financial loss/ threatening victim with intent to cause fear for victim’s/pty safety/safety of
DVA 3rd person/ communicating with the victim/ about victim to 3rd person with intent to
insult victim’s modesty
• Causing psychological abuse including emotional injury
• Causing victims to suffer delusions by using any intoxicating substance without victim’s
consent
• Child victim – same as above in causing to suffer delusion
(b) Types of Violence Physical, phycological, sexual, intoxicating substance, social, financial/property
(c) Remedies REMEDIES AVAILABLE BEFORE THE DVA 1984
available: 1.Section 103 LRA – injunction against molestation when there is pending matrimonial
proceeding, divorce, judicial separation or annulment
Problem faced:
• Section 106 – requirement of reference to conciliatory body before petition for divorce,
does not provide a victim with immediate protection in civil courts
• Further the injunction sought under LRA is a civil remedy enforceable in civil courts, the
police has no power to arrest unless a breach of peace is likely to occur
2.Other remedy after DVA is under the criminal law, charge the abuser under assault,
battery, voluntarily causing hurt, causing grevious hurt  Problem:  Police are reluctant to
interfere with domestic disputes
3.Another remedy is seen under Section 4A Married Women Act 1957 a husband or wife
shall be entitled to sue each other in tort in respect of injuries to his or her person 
Problem:  Section 4A only provides monetary form of remedy and not protection
DOMESTIC VIOLENCE IS Not defined as a specific crime punishable by new penalties, but it is attached to Penal
NOT SPECIFIC CRIME Code under definitions and procedures for hurt, criminal force and force (provisions of
UNDER DVA 1994 Penal Code on Offences relating to Human Body ( Chapter 16 )
 DIVORCE
S.51 Where one party to a marriage has converted to Islam,
1. Either party may petition for divorce under section 51
2. Both parties may petition for a divorce under section 52 (mutual consent)
- the requirement is easier- no need to prove that the marriage had broken them
3. Either party may petition for divorce under section 53 (IBM)- either apply for s.53-
adhere to the general rule- lasted for 2 years- conversion to islam does not apply- no
need to wait for 2 yaers
51/IBM/ mutual consent – need to look at section 3(3)- not applicable to muslim but exception
in the case of conversion of islam
51(2) - ancillary The parties can request for ancillary reliefs :-
matters when the parties apply for divorce under 51/52/53- apply for ancillary matters
Section 77- maintenance of the wife
Section 91- maintenance for children- custody

Upon dissolving the marriage

At any time
Part VII:: Division of matrimonial property upon divorce/ js
Part VIII: Custody and maintenance
WHICH COURT HAS Decisions of Federal Court in:
JURISDICTION
SUBASHINI RAJASINGAM V. SARAVANAN THANGATHORAY & OTHER APPEALS

The husband converted to IslamFederal Ct: “A non Muslim marriage does not automatically
dissolve upon one of the parties converting to Islam” Therefore, by contracting the civil
marriage, the H & W were bound by the 1976 Act in respect of divorce & custody of the
children of the marriage and thus the civil court continued to have jurisdiction over him…”
Principle cases Confirmed by both Federal Courts in Indira Ghandi’s case
decided by FC
Viran A/L Nagapan V Deepa A/P Subramaniam- Federal Court: upheld the COA decision
1) The Civil Courts have the exclusive jurisdiction to grant decrees of divorce of a civil marriage
under the [Law Reform (Marriage and Divorce) Act 1976] and to make all other ancillary orders
including custody case and access of the children born out of that marriage and all other
matters ancillary thereto.
EFFECT OF STATUS OF MARRIAGE-
CONVERSION TO The conversion does not determine or automatically dissolve the marriage
ISLAM It will not automatically dissolve the marriage- no petition shall remain intact/still valid- s51

Cases BEFORE AMENDMENT- 2018-

ANCILLARY RELIEFS Section 51 give the right for the only the non-converted party can apply the petition
CUSTODY OF Easwari Visuvalingam v. Govt of Malaysia
CHILDREN Married under hindu customary law- husband left the wife- converted to islam -died – whether
she have no longer have the right for the pension- appeal – still entitle – did not apply for
divorce
Pedley v Majlis Agama Islam P.P
Wife converted – without husband knowledge- he did not apply for divorce- the marriage still
valid
Ng Siew Pian v. Abdul Wahid bin Abu Hassan, Kadi Daerah Bukit Mertajam & Anor
Subashini Rajasingam V. Saravanan Thangathoray & Other Appeals
Non contested Cases Cases decided by the Shariah Courts
 -
Application to dissolve the marriage after conversion. – s. 46(2) Islamic Family Law
Act/Enactment

Siti Aishah Jhantip Aisam (2006) 21 JH 262

Nur Adryana Qestina bt Abdullah (2008) 25 JH 157

- The wives converted to islam- husband not apply for divorve- not contested by the
husband- decision- the husband just accepted-
- Under Islamic law- s46(2)- marriage must be dissolved
EFFECT OF 1)MATRIMONIAL PROPERTY
CONVERSION ON -property acquired during marriage
ANCILLARY ORDERS KOH YIAN GEOK V. ZULKIFLI TAN ABDULLAH
- Section 51(2) Held:
The marriage was dissolved upon the conversion of the respondent to Islam. As for the claim of
ancillary reliefs, the court after deliberating the laws of division of matrimonial property under
section 76 of the LRA, and the evidence adduced decided that the petitioner was entitled to the
beneficial owner of the matrimonial property and the respondent was to deliver vacant
possession of the same and the respondent was to return the set of jewellery to the petitioner
and its equivalent value of the time of purchase.
- She is rightful owner

- s76-the contribution of each party in buying the property-direct(money)/indirect- sold

effort of one party only- wife still can claim- she has been looking for the
family/property-(usually 1/3 of the property)
2) MAINTENANCE s.77
OBLIGATION LETCHUMY V RAMADESON

Non- muslim Vohrah J. “Section 3(3) precludes the operation of the provision of section 77 to the Muslim
During marriage- and as the respondent is now a Muslim, I do not think that they can be made apply to him. It
when husband would have been different if the divorce had in fact been granted under section 51 where in
neglect that case, the court would have been enabled by the specific provision of section 51(2) to make
provision to the petitioner’s maintenance”.
After divorce- can - The application s53- before amendment to s.51- no conversion – after the wife applied
claim for for divorce – husband converts to islam- purpose- to get away from his duty to
maintenance – maintain the wife- the judge interpret s3(3) literally – the act is not applicable for
Not remarry muslim( not obliged )- amended
Adultery -s78/79
Letchumy’s case has been commented and criticized in the case of(but not overruled)
TAN SUNG MOOI V. TOO MIEW KIM
Held: By looking to the intention of the Parliament while enacting section 51(2) i.e. to give
protection to the non-Muslim spouse and children against the Muslim convert, the court
therefore has a jurisdiction to hear and determine the ancillary status despite the fact that
the divorce was not granted under section 51.
- Husband converted later – to avoid his duty to maintain – interpret s3(3) – purposive
approach
- Married under LRA- injust for non-muslim if not awarded the maintenance
- S3(3) – jurisdiction

In the case of JOHAN FAIRBAIN, the decision in Tan Sung Mooi case was followed.
3) CUSTODY OF Principles applied by court
CHILDREN ( Including Welfare of the child is the paramount consideration
right of the YIP FOOK TAI V. MANJIT SINGH S/O MOHAR SINGH @ MOHAMMAD ISKANDAR MANJIT BIN
converted party to ABDULLAH
exercise his/her
rights to decide on Held: Order of custody can be made by the court. However, in deciding the custody of the
the religion of the children, whether it should be given to the converted or non converted parties, the paramount
child) consideration is still on the welfare of the child. Thus, the elder daughter remained with the
converted husband while the younger was with the mother
- Best interest principle -

NUR AISHAH SUK BTE. ABDULLAH @SUKWINDER KAUR a/p SAJHAN SINGH V. HARJEET SINGH
Held: After taking into account the report of the welfare officer concerning the background of
both parties and the child welfare, the court decided that the custody of the child should be
given to the applicant i.e. the converted mother.

Right to convert the GENGA DEVI CHELLIAH V SANTANAM DAMODARAMThe father who is a Muslim has a full right
children to decide the religion of the child and the custody was given to him.
Right of the CHANG AH MEE V JABATAN AGAMA ISLAM & ORS [2003] 1 CLJ 458
converted parent Issues:
without consent 1) Legality of the child conversion by the converted father
2) Jurisdiction to declare conversion as being against the law
Held:
The conversion of the child is null & void as it is against s.68 of Sabah Administration of Islamic
Law Enactment 1992 which requires consent of both parents if the child is below 18 years

Section 68. Capacity of convert.

For the purpose of this Part, a person who is not a Muslim may convert to Islam if he attains the
age of baligh according to Islamic law and provided that if a person is below eighteen (18) years
of age consent shall be obtained from the parents of his guardian.Art 12 (4) FC: For the
purposes of Clause (3) the religion of a person under the age of eighteen years shall be decided
by his parent or guardian.( “does not contravene Art 12(4) FC “consent of a parent” is
interpreted to be both parents).
INDIRA GHANDI Custody rights
case Unilateral conversion
( 3 children – aged- 12, 11 years old & 11 months)
Art 12(4) High Court held: (11th March 2010) had awarded the children’s custody to Indira, ruling that
## the word parent the welfare of the children would be best catered for under her care due to the nature of Mr.
as - one parent only Riduan’s job (which requires him to move a lot).In discussing about the youngest child, the
judge also invoked section 88(3) of the LRA, which provides custodial preference to mothers for
children under seven years old.