Answer 1(a)

The first issue arises in this case is whether Richa can end her marriage with Tony under the
ground of decree of nullity.
According to Section 68 of Law Reform (Marriage and Divorce) Act 1976 for any husband or
wife to present a petition to the court to obtain a decree of nullity in respect of their marriage.
Such decree may obtained for void and voidable marriage. It is also provided under Section
70 of LRA 1 are the grounds on which a marriage is voidable. The current issue falls under
paragraph (b) where the marriage has not been consummated owing to the wilful refusal of
the respondent to consummate it.
‘Wilful refusal’ means that the respondent without a just cause or not due to any
obstruction and willingly refuse to consummate the marriage (Horton v Horton [1947] 2 All
ER 871). ‘Wilful refusal’ must be distinguish with ‘incapability’, and it is for the court
to determine the reason for non-consummation.
In Yong Fui Phin v Lim Tow Siew [1996] 3 MLJ 479, the court referred to Potter v Potter
(1975) 5 Fam Law 161, where the failure to consummate was due to physical defect and the
wife’s refusal to consummate after the surgery that caused the husband to refuse to make
further attempts showed the failure was of natural and not deliberate loss of ardour. In the
current case, there was insufficient evidence to show there was wilful refusal as the parties
could not consummate the marriage since they had yet to complete the customary
marriage that was obstructed due to unforeseen circumstances. Kamala MG Pillai in
Family Law in Malaysia (LexisNexis, 2009) stated that the court is entitled to require the
party that suffer physical defect to remedy it if it would not harm the sufferer, and the party
will be regarded as incurable if the procedure is harmful or the party refused to undergo it.
Although the term used is ‘wilful refusal’, the court still has to look into the reason behind
such refusal. Hewson J in Jodla v Jodla (otherwise Czarnomska) [1960] 1 All ER 625, stated
that the petition will be disregarded if the respondent could show a ‘just excuse’ for the
refusal to consummate. This decision was referred to in the case of Tan Siew Choon v Tan
Kai Ho [1973] 2 MLJ 9 where the parties agreed to have a registry ceremony followed by
Chinese customary ceremony. What must be noted is that the parties could not co-habit nor
consummate unless the customary ceremony was conducted. The husband kept delaying
the arrangement and the court held that the husband’s refusal to arrange the ceremony
amounted to wilfully refuse to consummate the marriage.
Answer 1(b)

The issue arises in this case is whether Tony can defend the petition on the grounds of
irretrievable broken down of marriage.
In general, according to Section 48(1) of the Law Reform (Marriage and Divorce) Act
1976 (LRA), nothing in this Act shall authorize the court to make any decree of divorce
except (a) the marriage has been registered or deemed to be registered under this Act or (b)
where the marriage is monogamous and (c) where the parties are domicile in Malaysia. The
requirement under this section should be either the combination of subsection (a) and (b) or
(b) and (c). This means the parties need not to prove all the circumstances.
There are few grounds under dissolution of marriage, one of the grounds is due to
breakdown of marriage. According to Section 53(1) of the LRA, either party of the marriage
may petition for divorce on the ground that marriage has irretrievably broken down. Another
section is Section 53(2) of the LRA state that the duty of the court to inquire into the facts
alleged to see the circumstances must be just and reasonable in order for the marriage to be
dissolved by court. In order to prove the breakdown, it can be referred to Section 54 of the
LRA which the proof of breakdown had been laid out.
In Section 54(1) of the LRA, state that in its inquiry to see the alleged facts or
circumstances which cause or leading the breakdown of marriage the court shall have
regard that the respondent has behaved in such way that the petitioner cannot reasonably
be expected to live with the respondent. Thus, this means that the court will count into the
behaviour of that person. However, the main consideration taken by the court is not whether
the respondent behaviour is unreasonable per se but whether it is unreasonable to expect
the petitioner to continue living with the respondent in the circumstances.
Based on the case of Katz v Katz (1972) 3 All ER 219, behaviour is something more than a
mere state of affairs or state of mind, it is an action or conduct by one person which affects
the other. Due to the subjective reasons, there are two views to determine the behaviour of a
person under this section. The first view is that the sole test is to be applied as to the nature
of the respondent’s behaviour and it must be such as to justify the finding that the petitioner
cannot reasonably be expected to live with the respondent. As in the case of Thurlow v
Thurlow [1975] 2 All ER 979, it is not sufficient for the petitioner to merely establish that the
marriage was dead and that it was impossible for one to cohabit with the respondent. It must
be shown that the respondent’s behaviour which include negative conduct justified the
conclusion that the petitioner could not reasonable be expected endure cohabitation. For the
second view, to determine whether the petitioner can or cannot reasonably be expected to
live with the respondent. The court must consider the character, personality, disposition and
behaviour of the petitioner and the respondent as alleged and established in evidence. In
order to determine it, court need to do several tests. Firstly, the reasonable man test as
formulated in Livingstone Stallard v Livingstone Starllard. According to Dunn J who
formulated this test stated would any right-thinking person concluded that this
husband has behaved in such a way that his wife cannot reasonably be expected to live with
him, considering the circumstances as a whole, and the characters and personalities of the
parties. The second test is behaviour test, whereby the behaviours of both parties must be
considered. As in the case of Ash v Ash [1972] 1 All ER582 it was decided that that the
court must not only consider on behaviour of the respondent but also the character,
personality, disposition and also behaviour of the petitioner. Meanwhile the third test is to
see whether there is a breach of the obligation between both parties.
Referring to the case of Joseph Jeganathan v Rosaline Joseph [1989] 3 MLJ 106, the
husband sought divorce on the ground that it had irretrievably broken down in that the wife
had behaved in such a way that he cannot reasonably be expected to live with her. The
evidence showed that there was a lot of bitterness, suspicion and tension, triggered by
constant violent quarrels. There were also periods of absences by the wife from several
hours in a day, up to 70 to 80 days at a time. Efforts of reconciliation had failed. Then, the
court held that the test that can be applied is whether a right-thinking man in all the matters
would conclude that the respondent had behaved in such a way that the petitioner could not
reasonably be expected to live with the respondent.
By applying to this present case, the marriage between Richa and Tony is solemnised by
Register of Marriage in Kuala Lumpur in January 2021. The requirement under subsection
(b) and (c) are fulfilled since the marriage is monogamous which is between Richa and Tony
only and they are also seems to be domicile in Malaysia. On the other hand, it can be said
that Tony may apply the petition from divorce under this ground of irretrievable of marriage.
This can be seen that, from the start, Tony and Richa decided not to proceed with the
marriage. But since Richa was two months pregnant and Tony’s wealthy parents forced him
to married Richa and they have no choice unless to proceed with marriage. However, this is
mere assumption and to prove the actual breakdown the court needs to determine the
circumstances and facts which led to Tony and Richa breakdown of marriage under Section
53(2) of the LRA. Section 54(1) (b) can also be applied to this present case as Richa started
to behave unlikely since they moved to stay together after married due to the reason that
Richa feel tired since she was pregnant.

Answer 1(c)

According to the law in Malaysia through the LRA 1976, if a decree of nullity is granted in
relation to a voidable marriage, any child shall be deemed to be recognized as the parties’
legitimate child. As regards to the child of void marriage, the child shall be recognized as the
legitimate child of the parent if at the time of the solemnization of the marriage. Therefore,
both or either parties reasonably believed that the marriage was valid.
There are a few situation that applies the legitimacy which is (a) only where the father of the
child domiciled in Malaysia at the time of the marriage and (b) in so far as it affects the
devolution of any property only to children born after the appointed date.
Based on the case of Khor Liang Keow v Tee Ming Kook, the plaintiff and the respondent
believed that their marriage in accordance with Section 75(2) of the LRA 1976, the children
were deemed to be legitimate
In the case of Yeoh v Chew, the court held that the customary marriage was void.
Nevertheless, the court held that the children of the marriage were legitimate based on
Section 75(2) of the LRA 1976. The law provides that the child shall be treated as
legitimate if the parties believed that the marriage was valid.

Answer 2(a)

The issue in this case is whether the Law Reform (Marriage and Divorce) Act 1976 is
applicable or not to Raju and Kamala situation.
Generally, pursuant to Section 3(1) of the LRA, stated that this Act shall apply to all
persons in Malaysia and to all person domiciled in Malaysia but are residents outside
Malaysia. Domicile means a place of residence or ordinary habitation, a house or home, the
place where one has his permanent residence, to which if absent, he has the intention of
returning.
There are three types of domicile which are domicile of origin, domicile of choice and
domicile of dependence. In domicile of dependence, there are two types which is first, a child
normally attains domicile of origin upon birth (of the father, and if illegitimate of the mother)
and secondly, a woman takes that of her husband. An adopted child takes the domicile of his
adoptive father or mother and if the adopters are spouses, the child’s domicile takes that of
his adoptive father. In Section 3(2) of Adoption Act 1952, state that only one person can
apply for adoption except for spouses, because spouses are regarded as one person.
In domicile of dependence, the domicile of a wife will only be released upon divorce such as
in the case of Ang Geek Choo v Wong Tiew Yong, the court held that the High Court has
the jurisdiction to hear her petition because the petitioner who was originally domiciled in
Singapore had change her domicile to Malaysia after marrying her husband, who is a
Malaysian. She takes the domicile of her husband, upon marriage. However, only a decree
of divorce will release her from this dependence. Moreover, in the case of Fox v Strik &
Anor, for a place to be a domicile, physical presence, and an intention to remain in the same
place for a sufficiently long period, to make that presence more than fleeting or transitory
which means there is no need to own property.
However, in domicile of choice, it is a self- acquired domicile. A person may acquire a
domicile of choice provided he is 18 years old according to Section 2 of Age of majority
Act 1971 but a woman only has the right to change her domicile if she is an adult and not
yet married as per in the Common Law. However, if the domicile of choice is obtained, the
domicile of origin would have been suspended temporarily until the abandonment the
domicile of choice.
Based on the case of Shaikh Abdul Latif v Shaikh Elias Bux, the deceased had a domicile
of origin in Hong Kong. He moved from Hong Kong to Singapore and subsequently to Kuala
Lumpur, where he loved for 19 years until his death. While in Selangor, he amassed wealth,
built a home for his family, and regarded Selangor as his place of residence. Since he has
no other house either in Hong Kong or anywhere else and he never returned to Hong Kong
and his two wives, had embraced Islam, and never visited China. The court held that, he had
acquired the domicile of choice in Selangor.
There are two requirements that the court will look upon to identify whether the said person
acquires the domicile of choice. Firstly, there must have been a change of place voluntarily.
Secondly, he must have intention an intention to live and stay there voluntarily. Under this
requirement, there are four guidelines that the said person need to establish for him to prove
there is an intention.
First is the period of stays in the country, it is led to presumption in change of domicile.
According to the case of Udny v Udny, Colonel Udny has resided for nearly 32 years.
Secondly, whether the said person has some sort of property in that location. It can be seen
in the case of Shaikh Abdul Latif v Shaikh Elias Bux, the court held that, he had acquired
the domicile of choice in Selangor since he has no other house either in Hong Kong or
anywhere else and never returned to Hong Kong. Thirdly, the intention to stay in Malaysia
was voluntarily. In the case of Joseph Wong Phui Lun, where the petitioner, a Malaysian
citizen took a mistress and live with her in Singapore Resigned his old membership in
Selangor and became a member of a club in Singapore. The petitioner became a permanent
resident of Singapore and was issued a blue identity card. The court held that, the petitioner
acquired a domicile of choice of Singapore. Lastly, the requirements of the residence of wife
and children. If wife and children reside in the new place the he is presumed to have
intention to reside in that area.
By applying to this present case, formerly Raju was attached to the Abc Engineering Co.
Sdn Bhd, when he first started working in Malaysia and after pandemic Covid 19 hit
Malaysia, the he conduct a business Raju Bistro and expended to 24 hours convenient store
in Johor Bahru. Kamala which is Suganti daughter also had working in Malaysia since 2005
and she working as hair stylist in Kuala Lumpur. The first requirement to obtain domicile of
choice is fulfilled because the change of place in Malaysia is his choice. To determine the
requirement of period of stay, it can be assumed that he had stayed in Malaysia since 2000.
They also fulfil the second requirement as Raju have property in Malaysia to have his
domicile of choice there. It can be seen that he has his own business in Malaysia. For the
third requirement, which is his intention to stay is he actively participate and become devotee
of the Johor Bahru Hindu Temple. He is also a generous doner and volunteer of this Hindu
Temple. Same goes to Kamala, she also frequent volunteer of Hindu Temple. Even though,
Raju comes from United State, but his domicile of choice would be in Malaysia.
In conclusion, the Law Reform of Marriage can be applicable in Raju and Kamala for them to
get married.
Answer 2(b)

Whether a proposed marriage between Raju and Kamala match make by Suganti is valid or
not.