Faiza Tamby Chik J:

It is not disputed on the pleadings that the plaintiffs are the children of Teddy Rock Roy ("the deceased") from his marriage with the 1st defendant. The deceased entered into a Christian marriage with the 1st defendant on 24 April 1957. It was a monogamous marriage and was deemed to be registered under s. 4(2) of the Law Reform (Marriage and Divorce) Act 1976. A copy of the marriage certificate is at p. 1 of the plaintiffs' Bundle of Documents ("P1"). The 1st defendant later left the deceased and apparently became a Muslim and entered into a Muslim marriage with another man. She has not entered an appearance to this action although she has been served with the writ of summons (see the Affidavit of Service by Morgan Lawrence Roy, who is the 5th plaintiff - he personally served the writ on his mother the 1st defendant). There is no evidence that the deceased divorced the 1st defendant, although he could have done so if he had wanted to. The deceased entered into a civil marriage with the 2nd defendant on 3 June 1980: see copy of the marriage certificate at p. 6 of the 3rd and 4th defendants' Bundle of Documents ("D2"). He had falsely stated that he was a divorced man when he married the 2nd defendant. Since the deceased had contracted a monogamous marriage with the 1st defendant, the deceased had no capacity to enter into the marriage with the 2nd defendant, while the 1st defendant was still alive. The 2nd defendant therefore has no right of succession or inheritance. (See The Law Reform (Marriage and Divorce) Act 1976, ss. 5 & 6). The deceased died on 22 August 1998 (see the copy of the death certificate at p. 12 of P1).

There is no evidence that the 1st defendant has died or, more specifically, that she had already died so as to make the deceased a widower, when the deceased entered into the civil marriage with the 2nd defendant. Since there is evidence that the deceased and the 1st defendant were both alive earlier, the court must presume, until the contrary is proven, that they were both alive when the deceased entered into the civil marriage with the 2nd defendant. Since there is the certificate regarding the marriage of the deceased and the 1st defendant in 1957, the burden shifts to the other defendants to prove facts showing that the deceased had the capacity (through dissolution of marriage by divorce, nullity or death of the 1st defendant) to marry the 2nd defendant. (See Eeswari Visuvalingam v. Government of Malaysia [1990] 1 CLJ 111 (Rep); [1990] 1 CLJ 426; [1990] 1 MLJ 86). The 1st defendant had gone through a civil marriage ceremony with one Subramanian a/l Letchumanan on 26 January 1968 (see the copy of the marriage certificate at p. 66 of D2). The 1st defendant had embraced Islam on 10 August 1973 (see the copy of the certificate at p. 4 of D2). The 1st defendant had no capacity to marry Mr. Subramaniam because she was still married to the deceased. The 1st defendant's conversion to Islam did not, by itself, dissolve the deceased's marriage to her (see Pedley v. Majlis Ugama Islam Pulau Pinang & Anor [1990] 2 CLJ 24 (Rep); [1990] 2 CLJ 391; [1990] 2 MLJ 307).

The deceased had no capacity to enter into a polygamous marriage on 23 May 1980 with the 2nd defendant. He was a Christian Eurasian. He was not a Chinese. Therefore,Re Ding Do Ca, deceased ; [1966] 2 MLJ 220, in which it was reiterated that, in the case of the Chinese, their personal law is based on the race, and not their religion, does not apply. Having entered into a Christian marriage, the deceased could not lawfully, while that marriage was subsisting, marry another woman. (SeeIn the Estate of Pang Soo Ho, deceased [1982] 2 MLJ 147). Therefore, the deceased's subsequent marriages, including to the 2nd defendant on 23 May 1980, are null and void and of no effect. This is because the deceased continued to be the husband of the 1st defendant. The 3rd and 4th defendants have no right of inheritance from the estate of the deceas