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 is 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 is 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 petitioner's 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 subsection (a) or (b) together with subsection (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 CLJ (Rep) 493 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 reside in Malaysia at the time when the proceedings were commenced.

In the petition before me subsection 67(a) has been satisfied.

With regard to subsection 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 is based.

The petitioner is 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 reads 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 respondent to consummate it; (c) that either party to the marriage did not validly consent to it, whether in consequence of duress, mistake, unsoundness of mind or otherwise;

(d) that at the time of the marriage either party, though cap