JUDGMENTBY: AUGUSTINE PAUL JC

This is a petition for a decree of nullity of marriage by Yong Fui Phin, the petitioner, under the Law Reform (Marriage and Divorce) Act 1976 (the Act). The petitioner, who is ordinarily domiciled in Malaysia, was lawfully married to Lim Tow Siew, the respondent, on 5 May 1995 at the Registry of Civil Marriages, Melaka Tengah, Melaka. The facts as contained in the statement to the petition are as follows:

(a) At the time of the registration of the marriage, it was mutually

agreed that both parties would continue to live separately until

a wedding ceremony under Chinese customary rites was celebrated

at a later date.

(b) Due to unforeseen circumstances, both parties did not go through

the customary marriage. The marriage was never consummated and

the petitioner and the respondent have never cohabited.

Accordingly, the petitioner prayed for an order, inter alia, that the said marriage be declared null and void. The petition was served on the respondent on 30 May 1996. However, he did not appear in court on 15 August 1996 when the petition was called up for hearing.

I then considered whether the petitioner was entitled to the prayer sought under the relevant provisions of the Act.

Section 68 of the Act provides that any husband or wife may present a petition to the court praying for a decree of nullity in respect of his or her marriage. A decree of nullity may be granted on the ground that the marriage is void as specified in s 69 of the Act, or when it is voidable under s 70 of the Act. Section 73(1) of the Act enunciates that a court shall pronounce a decree of nullity only if it finds that the petitioners case has been proved. Section 67 of the Act mandates that a decree of nullity may only be made:

(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 both the parties to the marriage reside in Malaysia at the

time of the commencement of the proceedings.

It is clear that there must be compliance with either sub-s (a) or (b) together with sub-s (c) of s 67 in order for the court to make the order sought. In this regard, reference may be made to Cheng Sun Chuen v Lee Chee Seng [1983] 2 MLJ 371 , where Yusoff Mohamed J (as he then was) said at p 372:

Now, with the passing of the new Law Reform (Marriage and Divorce) Act

1976, my view is fortified in that with effect from 1 March 1982, the

courts cannot under s 67 of the Act grant a decree of nullity of a

marriage unless both the parties to the marriage reside in

Malaysia at the time when the proceedings were commenced.

In the petition before me, s 67(a) has been satisfied. With regard to s 67(c), the only statement is that the petitioner is ordinarily domiciled in Malaysia.

There is nothing on record to show that both the parties to the marriage resided in Malaysia at the time of the commencement of the proceedings. This is fatal to the petition.

The main issue for consideration is the grounds on which the petition was based. The petitioner was seeking a decree of nullity on the ground that the marriage was not consummated as both parties did not go through the customary marriage due to unforeseen circumstances. The reason advanced by her must fall within the relevant provisions of s 70 of the Act, which read as follows:

A marriage which takes place after the appointed date shall be voidable

on the following grounds only, that is to say --

(a) that the marriage has not been consummated owing to the

incapacity of either party to consummate it;

(b) that the marriage has not been consummated owing to the wilful

refusal of the re

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