Haidar Mohd Noor JCA:

This appeal is against the award of damages against the appellants as defendants by the High Court at Johor Bahru arising out of a motor accident on 7 December 1992 at about 10am at 14 1/2 milestone along the stretch of Jalan Utama/Jalan Kota Tinggi/Johor Bahru road. It resulted in the death of Chong Sey Kow (deceased). Tai Sai Hong (widow), the respondent, sued on behalf of herself and her two children as plaintiff.

Quite apart from the issue of liability, the appellants raised an issue of law, that is, whether Tai Sai Hong was the 'wife' of the deceased under the Law Reform (Marriage and Divorce) Act 1976 ("the Act") and as such, had she the legal capacity to bring the action claiming for damages for herself as a dependant of the deceased. This issue was premised on the fact that the marriage between the parties was a customary marriage contracted in Singapore and it was neither registered in Singapore nor under s. 22(4) of the Act. This fact was admitted to by Tai Sai Hong, the respondent. Why the marriage was not registered in Malaysia was not clear.

Status Of The Respondent As The 'Wife' Of The Deceased

When the parties contracted the customary marriage in Singapore at the deceased brother's house as well as in Kota Tinggi, Johor in 1986, the Act was already in force with effect from 1 March 1982 and the Act obviously would be applicable to them. However, the Act does not provide the definition of 'wife'. At most, by implication, wife must be a woman who undergoes a marriage in accordance with Part III of the Act, and such marriage may be solemnised:

(a) in the office of a registrar or elsewhere (s. 23);

(b) through religious ceremony, custom or usage (s. 24);

(c) in Malaysia Embassies etc., abroad (s. 26).

Section 27 of the Actrequires the registration of the marriage pursuant to the Act.

In this case as the respondent underwent a customary marriage not in accordance with s. 24 of the Act, counsel for the appellants submitted that by virtue of s. 22(4) of the Act, the purported customary marriage was not valid and cited T v. O[1992] 3 CLJ 633 (Rep)in support thereof.

In T v. O, the learned judge there was concerned with the issues of the legitimacy of the child of the customary marriage and whether such marriage was void or voidable due to non-registration. It was unfortunate that s. 34 of the Actwas not considered by the learned judge or may be it was not brought to his attention. Section 34 reads:

Nothing in this Act or the rules made thereunder shall be construed to render valid or unvalid any marriage which otherwise is invalid or valid merely by reason of its having been or not having been registered.

If the learned judge in T v. O[1992] 3 CLJ 633 (Rep)had the benefit of considering s. 34, the result might well be different.

In this appeal before us, the learned judge relied on s. 34 in order to overcome the difficulty of the invalidity of the customary marriage on ground of noncompliance with the provisions of the Act including non-registration of the customary marriage of the parties. He held that by virtue of s. 34the customary marriage between the respondent and the deceased was valid and it should not be declared invalid because it was not registered. This was on the premise that registration is merely a formality and the true essence and substance of the Act as stated in the preamble is to provide for monogamous marriage and there is nothing to show that the marriage between the respondent and the deceased was not a monogamous one.

Be that as it may, what we are concerned here really is not the validity or otherwise of the customary marriage between the parties but rather whether the respondent was the 'wife' of the deceased within the meaning and contemplation of the word 'wife' in s. 7(2) of the Civil Law Act 1956.

There has been judicial interpretation of s. 7(2) but it is only confined to the class of persons who are entitled to claim loss of support in respect of a deceased