JUDGMENT

Mahadev Shankar J:

The plaintiff (T) contracted a Chinese customary marriage with the defendant (O) on 27 May 1988. She gave birth to a son (ORD) on 7 December 1988. After the marriage came under strain, T left the matrimonial home with ORD on 1 October 1990. She filed this application for custody of and to be appointed ORD's legal guardian. She also asked for maintenance for ORD and for a half share of the matrimonial home to be vested in O as trustee for ORD.

The claims were resisted by O. Issues were raised as to the validity of the marriage, and the legitimacy of ORD as well as T's eligibility to make these claims if the marriage was in fact void.

In my interim judgment given on 3 July 1992 (See [1992] 3 CLJ 1756) I held that a mother could bring legal proceedings to have herself declared as the legal guardian of her illegitimate child and be given custody of and maintenance for such illegitimate child. However as there were contested issues of fact going to the issue as to whether ORD should be deemed legitimate and to the impact of such a finding on the rights and duties of the parties, I directed that pleadings be filed and the case tried in open Court.

The trial having concluded I find as follows.

In May 1988 T (a Malaysian of Chinese Origin) was already pregnant by O. They agreed to contract a Chinese customary marriage. On 27 May 1988 she wore her bridal dress. O came to her house in a wedding car accompanied by his relatives. O and T then prayed at the family altar of T. The party then went to have the wedding photograph taken in a studio. Then they went to O's house in Shah Alam where T served O's parents tea in the traditional manner. This was followed by a wedding dinner.

T has given sworn testimony in open Court that at the conclusion of these rituals she sincerely believed that she had contracted a valid marriage with O. She says that the parties intended thereafter to go through a registered marriage but somehow never got round to it because O was invariably outstation as a travelling salesman. O admits this. Section 75(2) of the Law Reform (Marriage and Divorce) Act 1976 provides that the child of a void marriage shall be treated as legitimate if at the time of the solemnisation of the marriage both or either spouse reasonably believed that the marriage was valid. Reasonable belief is a question of fact. The emphasis is on the word "reasonable". This imports an element of objectivity into what is otherwise a highly subjective matter. Whether a person reasonably believed something must therefore depend on the facts of the case.

Here the evidence shows that the parties went through the traditional ceremony. The parents of both parties were present at the rituals. The presence of the other relatives and the wedding dinner made this event a matter of public record.

The conduct of the parties after the marriage is a good indicator of what they believed at the time of its solemnisation. Here the parties cohabited at T's house with T's mother and younger brother. The birth of ORD was duly registered.

Consequently I declared at the conclusion of the trial that I was satisfied that T reasonably believed at the time the marriage was solemnised that it was valid. ORD is therefore to be deemed to be the legitimate child of T and O.

The following further orders were then made with the consent of the parties, namely that:

(1) T be given legal custody of and be appointed guardian of ORD;

(2) O pay T RM250 for the maintenance of ORD with effect from 3 May 1993; and

(3) O have no right of access to ORD.

These orders were made with the Court's approval because it was manifestly obvious from the evidence before the Court that access and custody had become traumatic problems for ORD. He was still a child of very tender years and the occasions when O tried, quite legitimately, to exercise these rights, were not happy ones for ORD. Things could change when the boy grows older and wishes to see his father. Bei