This is a petition by Rathee d/o Muthu under section 14 of the Divorce Act, 1952 for a declaration that her marriage to the respondent Shanmugam s/o Munusamy be declared null and void. The petition was uncontested.

The parties, according to the petitioner had undergone a ceremony of marriage at the Civil Registry of Marriages, Ipoh on November 6, 1976. It had been previously agreed by the parties that cohabitation was to commence only after the celebration of the marriage according to the rites of the Hindu religion, and that was to come about two months after the civil marriage.

After unsuccessful attempts by the parents of the respondent and petitioner's father to persuade the former to proceed with the marriage according to religious rites, respondent's parents and petitioner's father arranged for that ceremony to be held on June 6, 1979, apparently without previously ascertaining whether respondent would fall in with their arrangements.

The parties had, understandably lived separately ever since the civil ceremony, the petitioner continuing to live in Ipoh whilst respondent resided in Kota Kinabalu, Sabah. On or about June 3, 1979, he returned to Ipoh, and the following day insisted that his parents call off the religious ceremony, and a few days later personally told petitioner that he had no intention of proceeding with the religious ceremony. What was more, he told her that he would have nothing more to do with her.

It is therefore clear that the non-consummation was the result of respondent having reneged on the earlier agreement between the parties. It is equally clear from the testimony of the petitioner that she would agree to consummate only after the Hindu Religious ceremony.

Can it rightly be said that the respondent had wilfully refused to consummate so as to entitle the wife to relief under the Divorce Act?

Petitioner called as an expert witness on Hindu Law a Hindu priest Hemraj Shashtri s/o Ramachandra who has officiated as such in the Lakshmi Narayan Temple in Kuala Lumpur, a person possessed of impressive academic qualifications whose evidence on the Hindu law particularly those pertaining to marriage I would unhesitatingly accept. According to this witness the civil ceremony (at the Civil Marriage Registry), in the eyes of Hinduism, does not constitute a valid marriage. Unless this couple, who profess to be Hindus go through the religious rites, they may not live together as husband and wife under the religious law.

Mr. Harcharan Singh for the petitioner submitted that the Civil Marriage Ordinance, 1952 in no way prevents or prohibits the parties from going through a religious ceremony before or after the civil ceremony. The crucial question is whether persistent refusal by one party to proceed with the religious ceremony, as previously agreed, amounts to wilful refusal to consummate.

The facts in Kaur v Singh [1972] 1 All ER 292 are similar to the present one. The parties in that case were Sikhs who were married at a register office. The marriage had been arranged between the wife's brothers and her father on the one hand and the respondent husband on the other. In order fully to marry according to the Sikh religion and practice it was necessary to have not only a civil ceremony in a register office but also a Sikh ceremony in a Sikh temple. This was understood by the parties concerned. After the ceremony the wife returned to the house of her brother and the marriage was not consummated. It was the husband's duty to arrange the Sikh ceremony. The wife's brother approached the husband on a number of occasions and asked him what he proposed to do about the religious ceremony. The husband gave various excuses until eventually he told the wife's brother that he had no intention of arranging for the religious ceremony at all. The husband had never tried to persuade the wife to have sexual intercourse with him. The wife sought a decree of nullity on the ground of wilful refusal by the husband to