Syed Ahmad Idid J:

The plaintiff seeks a declaration that she is the legal wife of the defendant and that the Native Customary Marriage entered into between them on 24 June 1990 is valid and subsisting in law.

The plaintiff, born in 1963, is a Kadazan Tatana and so is a Native of Sabah. "Native" is defined by Section 2 (1) (a) of the Interpretation (Definition of Native) Ordinance 1952 which at the beginning was applicable to the Colony of North Borneo.

The defendant was born in 1961 at Beaufort of Chinese parents.

Facts

5 May 1990:

Plaintiff and defendant underwent a Tea Ceremony held to celebrate the marriage between them according to Chinese customs. The defendant's parents, brothers and sisters-in-law and the plaintiff's father and brother attended. Coloured photographs were taken of those who attended and of the plaintiff and defendant in bridal dress/suit and tendered as exhibits. Plaintiff served tea at the ceremony.

The plaintiff and defendant thereafter cohabited as wife and husband.

24 June 1990:

Plaintiff and defendant underwent another celebration of their marriage, this time according to the adat-istiadat (customs) of the Kadazan Tatana at the plaintiff's father's residence. During this occasion, which the plaintiff describes as "Native Marriage", the plaintiff and the defendant served tapai (rice wine) to the Ketua Anak Negeri (Native Chief) of Kuala Penyu, who witnessed the marriage, and all elders.

Plaintiff and defendant continued to cohabit until they experienced domestic problems. The defendant then left the matrimonial home in August 1990 for a few days. The defendant again left the plaintiff in January 1991 when the plaintiff was expecting a child. He returned in April but left again in June 1991 and has not returned to the plaintiff since.

What then followed were meetings between the plaintiff and the defendant with the Native Court. At one meeting, the defendant, on being shown the photographs of the marriage, replied that "Itu main-main sahaja" ("That was merely a playful thing").

The plaintiff and defendant did not register their marriage under the Law Reform (Marriage and Divorce) Act 1976 ("the said Act") .

The Ketua Anak Negeri of Kuala Penyu on 9 December 1991 certified that both "Encik Ho (defendant) and Puan Nancy Kual (plaintiff) telah melangsungkan perkahwinan pada 24 June 1990 mengikut adat istiadat Kadazan Tatana" and "accordingly they are certified as husband and wife".

I need not go into the other problems which the plaintiff encountered with the defendant, e.g. of the misuse of credit cards, of pregnancy test, of plaintiff's meeting with defendant's mother, and of police report on defendant's disappearance.

The issue is:

Whether, in view of s. 5(4) of the Law Reform (Marriage and Divorce) Act 1976 ("the Act") read with s. 3(1) thereof, a marriage solemnised under Native Customary Law and not registered in accordance with the provisions of the Act between a non- Native (the defendant) and a Native (the plaintiff) is valid.

Miss Yee Pui Phing, of Counsel, contends that the marriage is valid despite its non-registration. She quotes s. 3(4) , that the Act does not apply to any Native of Sabah and the plaintiff is a Native. But the defendant is not. Hence the difficulty that both Counsel met in their attempt to resolve the claim. Unfortunately, this point has not been raised nor decided before. The defendant, in defence, merely states that he is "........ by race, a pure Chinese."

Social Impact On The Community

The Court was told that there are many couples in similar circumstances in Sabah. They participated in the ceremonies and rituals but did not register. The following situations spring to mind:

(a) A Muslim marrying another Muslim. In such a case, their marriage must be governed by the Syariah Law. Section 3(3) . Notwithstanding that one or both are Natives. For the present reckoning, there is no such liaison as a non-Muslim marrying a Muslim for the purpose of o