JUDGMENT

Gopal Sri Ram JCA:

This case concerns a simple issue of statutory construction. The High Court had dealt with it so admirably that we found it unnecessary to call upon the respondent to answer the appellant's submissions. The factual matrix against which this appeal rests is as follows.

On 19 November 1995, the respondent underwent a ceremony of a Chinese customary marriage with her late husband Lau Yen Yoon ("the deceased"). Later, the deceased died in an accident leaving behind some assets which, by the law of intestate succession, ought to go to the respondent as his widow. But the deceased's mother intervened. She said that there was no customary marriage ceremony. She said that even if there was a customary marriage it was void because it was not registered. This led the respondent to take out an originating summons in which she claimed a declaration and some ancillary relief. So, the judge had to deal with two questions: one of fact and the other of law. He resolved both in the respondent's favour and granted her the declaration she sought.

So far as the ceremony is concerned, the respondent in her affidavit describes the more detailed aspects of the rites observed at the ceremony in her affidavit filed in the court below. The appellant in her written evidence challenged the factum of the ceremonial marriage. But the learned judge preferred the appellant's evidence to that of the respondent. He was certainly entitled to do so.

The fact that an originating process is tried on affidavit evidence does not relieve a court of first instance from conducting an analysis of the evidence to discover where the truth lies. As Lee Hun Hoe CJ (Borneo) said in Syed Ibrahim Syed Abdul Rahman v. Liew Su Chin (F); [1984] 1 MLJ 160:

Not all disputes of fact necessarily raise serious questions to be tried. It is of course quite right to say that it is undesirable to resolve disputes on affidavit evidence. Yet Judges are expected in applying the test to be critical of the affidavit evidence which must on the face be at least plausible.

I think that this court must on such matters as the credibility of evidence defer to the opinion to the trier of fact. This court does not assume any wider power of intervention merely because the evidence is written and not oral: See, Syarikat Telekom Malaysia v. Business Chinese Directory Sdn Bhd [1997] 1 CLJ 596; [1996] 3 MLJ 692. I would accept in its entirety the finding by the learned judge that the respondent underwent the ceremony in question with the deceased. It is a finding made after a careful analysis of the evidence. It is also consistent with the probabilities of the case.

That leaves the question of law. The argument is that the respondent's customary marriage in question is void for want of registration under the Law Reform (Marriage and Divorce) Act 1976 ("the Act"). The learned judge rejected - and in our view rightly rejected - that argument. It is plain that the fallacy of the appellant's argument lies in its oversight of the object and purpose of the Act.

The main purpose of the Act is to prohibit polygamous marriages among non-Muslims. This is made clear in s. 5 of the Act. It is to achieve this object that the Act requires the registration of non-Muslim marriages. But nowhere in the Act is provision made declaring as void any marriage contracted between non-Muslims in accordance with the customary ceremonial rites of the community to which they belong. And Parliament has taken pains to make that abundantly clear in s. 34 of the Act. The judge quoted it. He relied on it. This is what it says:

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

The marginal note reads "Legal effect of registration". It indicates what s. 34 is all about. Can we use it to interpret the section? I think we can.

Now, it is true that at one tim