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2011 MarsdenLR 2220
HIGH COURT MALAYA, KUALA LUMPUR
KOI LEAN HUA – Appellant
Versus
KETUA PENGARAH PERTUBUHAN KESELAMATAN SOSIAL – Respondent
[Civil Appeal No. R3-16-01-2011]
A lawful widow must be in a valid, monogamous marriage recognized under the Law Reform (Marriage and Divorce) Act 1976; failure to comply renders the marriage invalid.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - The Act stipulates that valid non-Muslim marriages must be monogamous and registered to be recognized legally. (Paras 2, 3, 5)
(B) Marriage Validity - A customary marriage must comply with the provisions of the Act to be considered valid. Failure to register and solemnize renders the marriage invalid. (Paras 4, 5)
(C) Definition of 'Widow' - The term 'widow' pertains solely to lawful widows, which requires a valid marriage. (Para 6)
(D) Burden of Proof - The appellant failed to establish that her marriage met the legal requirements. (Para 7)
Facts of the case:
The appellant claimed to be a widow of a deceased; however, her marriage was neither monogamous nor registered under the LRA.
Findings of Court:
The Board concluded that the appellant was not a lawful widow due to the non-compliance with mandatory provisions of the LRA.
Issues: Whether the appellant's marriage was valid under the LRA and what constitutes a lawful widow.
Ratio Decidendi: The court held that a valid marriage requires compliance with the LRA and that the appellant did not meet these criteria, thus not being recognized as a lawful widow.
Result: Appeal dismissed with costs.
After giving careful consideration to the argument put forth by both parties, I agree entirely with the respondent's submission that the word "widow" had to be interpreted in line with the prevailing provisions of the law relating to marriage and the judicially accepted principles of law with regard to non Muslim marriage in this country. There is no dispute that the law governing marriage and divorce for non Muslim is contained in the Law Reform (Marriage and Divorce) Act 1976 (LRA) . This Act came into force on 1.3.1982. The preamble to the LRA reads: "An Act to provide for monogamous marriages and the solemnization and registration of such marriages". The courts in many cases have given due emphasis to the preamble.
One such case is Chai Siew Yin v. Leong Wee Shing ; [2004] 1 CLJ 752 ; [2004] 2 AMR 358 . The issue arose in that case is whether non registration of a Chinese customary marriage invalidated the marriage. Under held (2) of that case, Gopal Sri Ram (JCA) held:
The object and purpose of the Act is to prohibit polygamous marriages amongst non Muslims; hence, its requirement that non-Muslim marriages be registered ...
The same sentiment was shared by His Lordship Hamid Embong (HCJ) in Yeoh v. Chew , , also a case of Chinese customary marriage which was not solemnized and registered under Law Reform (Marriage and Divorce) Act 1976 . In deciding on the issue of whether there was a valid marriage, under held (3) at page 632, this is what the court say:
The law only recognizes a monogamous marriage contracted pursuant to the scheme of the Act. With the coming into force of the Act on 1 March 1982, a marriage to be lawfully recognized may be solemnized only in accordance with the provisions under Part III as stated under s. 5(4) of the Act . No one can therefore come before a matrimonial court stating that he or she is lawfully married by way of custom if it cannot be shown that the solemnization of the marriage is in accordance with Part III of the Act.
