RK Nathan J:

Facts

On 17 April 1969 the petitioner married the respondent. They lived and cohabited together in Kuala Lumpur and have two children now aged 29 and 25. Sometime in 1975 the petitioner left the matrimonial home and set up his own home in Sentul, Kuala Lumpur, due to misunderstanding. However, the respondent resumed co-habitation at Sentul during the early part of 1976 and left the petitioner's home at the later part of 1976. Since then neither party has had anything to do with the other and they have lived apart for more than 20 years. The petitioner stated in his petition that attempts at reconciliation were made by the petitioner's relatives, without success. The petitioner prayed for a dissolution of the marriage and was prepared to pay the costs.

Preliminary Objection

Before filing an answer to the petition, the respondent raised a preliminary objection which was that there was non-compliance with s. 106 of the Law Reform (Marriage and Divorce) Act 1976 (the Act) . The said section reads:

106 Requirement of reference to conciliatory body before petition for divorce

(1) No person shall petition for divorce, except under sections 51 and 52 unless he or she has first referred the matrimonial difficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties:

Provided that this requirement shall not apply in any case -

(i) where the petitioner alleges that he or she has been deserted by and does not know the whereabouts of his or her spouse;

(ii) where the respondent is residing abroad and it is unlikely that he or she will enter the jurisdiction within six months next ensuing after the date of the petition;

(iii) where the respondent has been required to appear before a conciliatory body and has wilfully failed to attend;

(iv) where the respondent is imprisoned for a term of five years or more;

(v) where the petitioner alleges that the respondent is suffering from incurable mental illness; or

(vi) where the court is satisfied that there are exceptional circumstances which make reference to a conciliatory body impracticable.

(2) A matrimonial difficulty may be referred to any conciliatory body acceptable to both parties but, where they are unable to agree on a conciliatory body, shall be referred to the marriage tribunal for the area in which they reside or, where they are living in different areas, to the marriage tribunal for the area in which they had last resided together.

(3) A "conciliatory body" means -

(a) a council set up for the purposes of reconciliation by the appropriate authority of any religion, community, clan or association; or

(b) a marriage tribunal; or

(c) any other body approved as such by the Minister by notice in the Gazette.

(4) A marriage tribunal shall be set up for such specified area or district as the Minister may decide, consisting of a Chairman and not less than two nor more than four other members who shall be nominated by the Minister, or by such officer to whom the Minister may have delegated his powers to in that behalf.

(5) (a) A conciliatory body to which a matrimonial difficulty has been referred shall resolve it within the period of six months from the date of reference; and shall require the attendance of the parties and shall give each of them an opportunity of being heard and may hear such other persons and make such inquiries as it may think fit and may, if it considers it necessary, adjourn its proceedings from time to time.

(b) If the conciliatory body is unable to resolve the matrimonial difficulty to the satisfaction of the parties and to persuade them to resume marriage life together, it shall issue a certificate to that effect and may append to its certificate such recommendations as it thinks fit regarding maintenance, division of matrimonial property and the custody of the minor children, it any, of the marriage.

(c) No advocate or solicitor shall appear or act as such for any party in any proceed