Rathee

- vs -

Shanmugam

Judgment

Wan Suleiman FJ

1. This is a petition by Rathee Muthu under s 14 of the Divorce Act, 1952 for a declaration that her marriage to the respondent Shanmugam Munusamy be declared null and void. The petition was uncontested.

2. The parties, according to the petitioner had undergone a ceremony of marriage at the Civil Registry of Marriages, Ipoh on 6 November 1976. It had been previously agreed by the parties that co-habitation was to commence only after the celebration of the marriage according to the rites of the Hindu religion, and that was to come about two months after the civil marriage.

3. After unsuccessful attempts by the parents of the respondent and petitioner’s father to persuade the former to proceed with the marriage according to religious rites, respondent’s parents and petitioner’s father arranged for that ceremony to be held on 6 June 1979 apparently without previously ascertaining whether respondent would fall in with their arrangements.

4. The parties had, understandably lived separately ever since the civil ceremony, the petitioner continuing to live in Ipoh whilst respondent resided in Kota Kinabalu, Sabah. On or about 3 June 1979 he returned to Ipoh, and the following day insisted that his parents call off the religious ceremony, and a few days later personally told petitioner that he had no intention of proceeding with the religious ceremony. What was more, he told her that he would have nothing more to do with her.

5. It is therefore clear that the non-consummation was the result of respondent having reneged on the earlier agreement between the parties. It is equally clear from the testimony of the petitioner that she would agree to consummate only after the Hindu Religious ceremony.

6. Can it rightly be said that the respondent had wilfully refused to consummate so as to entitle the wife to relief under the Divorce Act?

7. Petitioner called as an expert witness on Hindu Law a Hindu priest Hemraj Shashtri Ramachandra who has officiated as such in the Lakshmi Narayan Temple in Kuala Lumpur, a person possessed of impressive academic qualifications whose evidence on the Hindu law particularly those pertaining to marriage I would unhesitatingly accept. According to this witness the civil ceremony (at the Civil Marriage Registry), in the eyes of Hinduism, does not constitute a valid marriage. Unless this couple, who profess to be Hindus go through the religious rites they may not live together as husband and wife under the religious law.

8. Mr Harcharan Singh for the petitioner submitted that the Civil Marriage Ordinance, 1952 in no way prevents or prohibits the parties from going through a religious ceremony before or after the civil ceremony. The crucial question is whether persistent refusal by one party to proceed with the religious ceremony, as previously agreed, amounts to wilful refusal to consummate.

9. The facts in Kaur v Singh [1972] 1 All ER 292 are similar to the present one. The parties in that case were Sikhs who were married at a register office. The marriage had been arranged between the wife’s brothers and her father on the one hand and the respondent husband on the other. In order to marry according to the Sikh religion and practice it was necessary to have not only a civil ceremony in a register office but also a Sikh ceremony in a Sikh temple. This was understood by the parties concerned.

10. After the ceremony the wife returned to the house of her brother and the marriage was not consummated. It was the husband’s duty to arrange the Sikh ceremony. The wife’s brother approached the husband on a number of occasions and asked him what he proposed to do about the religious ceremony. The husband gave various excuses until eventually he told the wife’s brother that he had no intention of arranging for the religious ceremony at all. The husband had never tried to persuade the wife to have sexual intercourse with him. The wife sought a decree of nullity on the ground of wilful refusal by the husband to consummate the marriage.

11. The Court of Appeal held that the wife was entitled to a decree of nullity because from the time of the ceremony at the register office the husband had entirely refused and failed to implement the marriage and in failing to do so, he had wilfully failed to consummate.

12. This decision was cited with approval in Jodla v Jodla (otherwise Czarnomska) [1960] 1 All ER 625 where the parties were Poles. The husband had petitioned for a declaration that the marriage between himself and the wife was null and void owing to her wilful refusal to consummate the marriage. The wife denied wilful refusal to consummate the marriage, alleged that she had been willing to consummate it and prayed nullity on the ground that it had not been consummated on her husband’s wilful refusal.

13. The woman was in danger of having to be sent back to Poland because her visa was about to expire. In order that she should be able to remain legally in Britain the parties, who were both Catholics, went through a register office ceremony. The parties intended thereafter to be properly married according to the proper rites of the church. The husband according to his evidence was asked several times by the wife to make arrangements for the Catholic ceremony, but failed to do so. Thereafter the parties drifted apart, the wife refusing to live with the husband until he had arranged the religious ceremony.

14. The trial judge held that the conduct of the wife did not amount to wilful refusal by the wife because she had a legitimate and proper excuse in the circumstances, and that it was the husband’s conduct in failing to arrange the religious ceremony that resulted in the non-consummation of the marriage.

15. My attention was drawn to the Singapore case of Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9 where Choor Singh J went even further and extended the rule in Jodla v Jodla to include a case where the ceremony which the spouses had agreed to undergo after the registry marriage was another ceremony in accordance with Chinese custom and not a religious ceremony. I do not feel on the facts before me that there is need for me to decide whether the principle enunciated in the two English cases earlier cited could properly be so applied.

16. It will suffice for me to decide that failure by the respondent in this case to proceed with the ceremony according to Hindu rites would entitle petitioner to refuse to consummate, and entitle her instead to a declaration that the marriage is null and void for wilful refusal to consummate by respondent.

17. In view of the special circumstances, I also ordered that decree nisi be made absolute shortened to one week from the date of the order i.e. one week from 27 June 1980.

Cases

Kaur v Singh [1972] 1 All ER 292; Jodla v Jodla [1960] 1 All ER 625; Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9

Legislations

Divorce Act, 1952: s.14

Representations

U Harcharan Singh for the petitioner.

Respondent not present.