JUDGMENTBY: LEE HUN HOE CJ (BORNEO)

(delivering the Judgment of the Court): We allowed the appeal and set aside the decree nisi. We stated that we would give our reasons later and we do so now. The appeal is concerned with the dissolution of marriage on ground of mutual consent under section 52 of the Law Reform (Marriage and Divorce) Act, 1976 (hereinafter referred to as "the Act"). The section provides:

"52. If husband and wife mutually agree that their marriage should be

dissolved they may after the expiration of two years from the

date of their marriage present a joint petition accordingly and

the court may, if it thinks fit, make a decree of divorce on

being satisfied that both parties freely consent, and that proper

provision is made for the wife and for the support, care and

custody of the children, if any, of the marriage, and may attach

such conditions to the decree of divorce as it thinks fit."

Sivanesan, the petitioner (husband) and Shyamala, the co-petitioner (wife) were married on August 24, 1974 at the Petaling Jaya Marriage Registry. While the husband lived in Petaling Jaya the wife lived in Klang. They have no children. On May 25, 1984 they filed a joint petition freely consenting mutually to have their marriage dissolved. In the petition they merely pray that the said marriage be dissolved.

The petition was supported by two affidavits, one sworn to by the husband on May 25, 1984 and the other by them jointly on August 24, 1984. The second affidavit was supposed to clarify the first affidavit. Instead, it creates confusion as to the precise provision to be made for the wife. For this the solicitors must share some blame. Going back to the first affidavit the husband declared his properties to comprise three houses and one piece of land and that the land was given to him as a dowry at the time of marriage and that he undertook to transfer it back to his father-in-law. In the second affidavit they explained how the three houses came to be owned by the husband. Two of the houses were given to the wife by her father. One was registered in her name and the other in the husbands name. Later, she transferred the house to her husband. The third house was bought by the wife but registered in her husbands name. As to the piece of land it was given to the wife by her father as dowry and apparently registered in her husbands name also. So at the time they petitioned for mutual divorce all the properties were registered in the husbands name. They agreed that in consideration of the wife returning the house originally given by her father, the husband would return the piece of land he had received as dowry to his father-in-law. The wife accepted this exchange in full and final settlement of all her claims in respect of maintenance or any matrimonial assets. So by paragraph 6 of the joint affidavit they pray for an order:

"(a) that the marriage be dissolved by mutual consent;

(b) that in consideration of the Petitioner returning her dowry held

under Grant 6278 Lot 7314 in the Mukim and Town of Seremban to

the Co-Petitioners father Ganesan s/o Kailasapillai AND the

Co-Petitioner returning the property held under H.S.(D) 40194 Lot

4740 District of Sungei Buloh, Selangor to the Petitioner, the

Co-Petitioner hereby accepts this settlement of her matrimonial

assets and all her future claims for maintenance; and

(c) no order as to costs."

The learned Judge was clearly satisfied that the conditions for the dissolution of marriage by mutual consent under section 52 had been complied with. However, he was clearly confused by prayer (b) above relating to the exchange of property. The substance in prayer (b) should have formed another paragraph in the joint affidavit as a mere statement. Bearing in mind that all the properties were registered in

Click Here to Read the rest of this document