1. Petition for decree of nullity under Section 70(b) of the Law Reform (Marriage and Divorce) Act 1976 based on non-consummation owing to respondent's wilful refusal. (Para 1 , 6 , 9 , 11 )
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2026 MarsdenLR 839
HIGH COURT MALAYA MELAKA
RAJA SEGARAN S KRISHNAN, JC
NG KOK YUAN – Appellant
Versus
DUONG THI NGOC DIEM – Respondent
[Nullity Petition No: MA-33-15-03/2026]
A decree of nullity under section 70(b) requires proof of both non-consummation and the respondent's wilful refusal. Mere non-consummation or the respondent's consent/non-objection is insufficient; wilful refusal must be established through primary facts showing a settled decision without just excuse.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Sections 70(b), 47, 52, 67, 71 and 73 - Decree of nullity - Non-consummation owing to wilful refusal of respondent - Distinction between nullity and divorce - Requirement of proof of causation - Non-consummation alone is insufficient to grant nullity - "Wilful refusal" denotes a settled and definite decision without just excuse (Paras 4, 18, 19, 27, 29).
(B) Evidentiary standards - Consent or non-objection by respondent does not substitute for proof of statutory grounds - Court must independently scrutinize evidence even in uncontested petitions - Nullity cannot be used as a shortcut to divorce (Paras 21, 24, 40, 51, 52).
Facts of the case:
A petition for nullity of marriage was filed on the ground that the marriage was not consummated due to the respondent's wilful refusal. The respondent filed affidavits of consent and non-objection. The parties lived in separate residences and experienced frequent quarrels. No specific evidence of attempts to consummate or detailed accounts of refusal were provided.
Findings of Court:
While non-consummation was accepted based on assertions, the petitioner failed to prove that such non-consummation was caused by the respondent's wilful refusal.
Issues: Whether the petitioner proved that the non-consummation was owing to the respondent's wilful refusal under section 70(b) and whether a decree of nullity can be granted based on the respondent's consent or non-objection alone.
Ratio Decidendi: Section 70(b) requires proof of both non-consummation and that it was caused by the respondent's wilful refusal. Wilful refusal must be a settled and definite decision without just excuse. Mere non-objection or consent by the respondent does not prove the historical fact of wilful refusal. The court must identify the cause of non-consummation from primary facts, and the absence of evidence regarding attempts or specific conduct precludes a finding of wilful refusal.
Result: Petition for nullity dismissed.
Legal Category Hierarchy
- family law
- practice and procedure
Table of Contents
2. Petitioner asserts non-consummation due to respondent's deliberate refusal; respondent files affidavits of consent and non-objection to the orders sought. (Para 9 , 11 )
3. Non-consummation alone is insufficient; the petitioner must prove the specific cause of wilful refusal through primary facts rather than mere conclusions or respondent's consent. (Para 19 , 21 , 29 , 36 , 38 , 41 , 45 , 47 , 51 , 52 )
4. A decree of nullity under Section 70(b) requires independent proof of the respondent's wilful refusal; present consent or non-objection cannot substitute for proof of this statutory ground. (Para 29 , 38 , 40 , 66 )
6. What is required to prove a voidable marriage under Section 70(b) of the Law Reform (Marriage and Divorce) Act 1976?
The petitioner must prove two distinct elements: first, that the marriage was not consummated, and second, that such non-consummation was caused by the respondent's wilful refusal to consummate the marriage. (Para 19 , 29 )
7. How is wilful refusal defined in the context of matrimonial nullity?
Wilful refusal is defined as a settled and definite decision by the respondent, made without just excuse, not to consummate the marriage, rather than mere delay, uncertainty, or relational difficulty. (Para 27 , 29 )
8. Does a respondent's consent or non-objection to a petition for nullity prove wilful refusal?
No. A respondent's non-objection or consent only indicates a lack of desire to contest the petition; it does not establish the historical fact of wilful refusal required by statute. (Para 29 , 40 , 41 , 51 )
9. Can a decree of nullity be granted based on mutual agreement between spouses?
No. Nullity is granted only if statutory grounds are proved. Using it as a consensual shortcut to divorce undermines the distinct statutory scheme for consensual divorce under Section 52. (Para 2 , 21 , 24 , 52 , 58 )
JUDGMENT
A. Introduction
[1] This is a husband's petition for a decree of nullity under the Law Reform (Marriage and Divorce) Act 1976 ("the Act"). The petition is brought on the footing that the marriage, though validly registered, is voidable because it has not been consummated owing to the wilful refusal of the respondent to consummate it within the meaning of s 70(b).
[2] The proceedings are formally uncontested. The respondent filed affidavits stating that she understood the petition and supporting affidavit, had received them on 3 March 2026, and had no objection to the orders sought. That procedural posture, however, does not conclude the matter. A decree of nullity is not granted by agreement. It is granted only if the Court is satisfied that the statutory ground has been proved.
[3] The real controversy is narrow but decisive. The issue is not whether this marriage has failed in a practical sense. Nor is it whether both parties now wish to be rid of it. The issue is whether the petitioner has proved that the admitted non-consummation was caused by the respondent's wilful refusal within s 70(b).
[4] That issue matters because the Act draws a deliberate distinction between nullity and divorce. Nullity addresses marriages that are void or voidable on specified statutory grounds. Divorce addresses breakdown. If s 70(b) were treated as extending to any short, unhappy or unconsummated marriage, the legislative boundary between the two regimes would be obscured.
[5] This case is also significant for a further reason. The authorities placed before the Court include Re: Kirthiga Suthan Kathiravellu & Anor 2023 MarsdenLR 1126; [2023] 12 MLJ 265, which appears to be the principal Malaysian decision dealing directly with s 70 in this context. That decision is useful and important, but it does not exhaust the questions that arise where, unlike there, the petition is brought by one spouse against another and supported by affidavits that speak in general conclusions but not in primary facts. This case therefore requires careful attention to the statutory text, the structure of the Act, the existing Malaysian authority, and the persuasive authorities available through s 47, so that the proper approach to future applications under s 70(b) may be stated with clarity.
B. Material Facts And Procedural History
[6] The petitioner, NG KOK YUAN, and the respondent, DUONG THI NGOC DIEM, registered their marriage on 22 May 2025 at the National Registration Department, Petaling, Selangor. The marriage certificate exhibited to the petition records the date, district and state of registration accordingly.
[7] The petition states that both parties reside in Malaysia. The petitioner's address is stated as No 5, Jalan Permas 6/20, Bandar Baru Permas Jaya, 81750 Masai, Johor. The respondent's address is stated as No 6, Jalan Permas 6/20, Bandar Baru Permas Jaya, 81750 Masai, Johor. The supporting affidavit and the respondent's affidavits repeat those addresses.
[8] The petition further states that no child was born of the marriage, that there is no matrimonial property arising from the marriage, and that there were no earlier proceedings in Malaysia or elsewhere touching the marriage or any property of either or both parties.
[9] The material allegation is that the marriage was never consummated and that this was because the respondent deliberately refused to consummate it. The petition then adds several brief factual matters: after registration the parties lived in their respective homes; quarrels frequently occurred; the respondent was often at variance with the petitioner; there was no mutual understanding between them; and around January 2026, after a quarrel, the petitioner stated that he no longer intended to continue with the marriage.
[10] On 26 February 2026, the petitioner affirmed his supporting affidavit. That affidavit did not narrate fresh facts. It simply verified that the statements in paras 1 to 10 of the petition were
