Tan Yin Wah v Choo Fong Yen [2020] MLJU 92

 

Tan Yin Wah v Choo Fong Yen [2020] MLJU 92

 

High Court (Kuala Lumpur)

 

Bankruptcy

 

Facts

1.      The Respondent, Choo Fong Yen had initiated bankruptcy proceedings against the Petitioner, Tan Yin Wah at the Shah Alam High Court. The Petitioner, in turn, had brought a legal action against the Respondent and 12 other defendants in the Kuala Lumpur High Court Civil. Both actions were settled by the parties pursuant to a Settlement Agreement dated 19.12.2013

2.      Petitioner agreed to remarry the Respondent for the second time as after being persuaded by the Respondent. with conditions that the Respondent will withdraw the bankruptcy proceedings against the Petitioner.

3.      After the registration of the second marriage, it was revealed that the parties didn’t lived together and both the Respondent and the Petitioner never consummated the said marriage. The Respondent never denied these facts.

4.      The Respondent also didn’t deny the non- consummation was caused by their deliberate refusal to consummate the marriage.

5.      Furthermore, the Respondent didn’t deny that for their second marriage they never live together. However, she informed that the Petitioner had from time to time came to her house.

 

Issue 1.      Whether the marriage between Tan Yin Wah and Choo Fong Yen is voidable pursuant to section 70(a) of Act 164, the Law Reform (Marriage And Divorce) Act 1976.

 

Ratios 1.      The court rely on the case of  Jodla v Jodla [1960] 1 All ER 625; [1960] 1 WLR 236, Hewson J held for there to be a willful refusal “there must be a refusal without just excuse”.

 

2.      The court also rely on the case of Yong Fui Phin v Lim Tow Siew [supra], Augustine Paul JC (later FCJ), held: the fact that the parties had sexual intercourse prior to the marriage or that they are capable of having intercourse with other partners is irrelevant in determining whether a marriage shall be voidable where there is non-consummation due to the incapacity of either party to consummate it. Mere refusal is not enough, there must be a physical or psychological incapacity.

 

3.      Dickinson v Dickinson (otherwise Phillips) [1913] P 198. A contract of marriage means that the parties are capable of carrying it out with the sexual intercourse.

 

4.       In L v L [1956] MLJ 145. The word ‘incapacity’ to consummate in s 70(a) of Act 164, the Law Reform (Marriage And Divorce) Act 1976  means, and can only mean, inability to have sexual intercourse based on physical abnormality or psychological impotence.

 

5.      In SY v SY [1963] P 37. In regards to a psychological issue which lead to non consummation.

 

6.      It is possible to assume that a spouse who has an unquenchable aversion to having sexual relations with the other cannot bring their marriage to a successful conclusion. It takes more than just a cognitive judgement to forbid sexual activity; there must also be some sort of psychological or sexual aversion.

 

7.      The court determined that the parties agree that their second marriage has not yet been legally consummated. The ability to have sexual relations with other partners or the fact that the Petitioner and Respondent had their first marriage consummated in this instance are immaterial to the question of whether or not they were able to have their second marriage consummated.

 

 

8.      From the facts it is clear that there is no consummation from their second marriage because of the incapacity of either party to consummate. Elements of psychological aversion exist from both parties, making them incapable to consummate for their second marriage.

 

9.      Besides, nowhere is it pleaded by either party that they had decided to remarry because they had fallen in love again or their need for each other’s companionship. To the Petitioner’s mind, remarrying the Respondent was a way to release himself from the bankruptcy order resulting from the proceedings initiated by the Respondent against him.

 

10.   Accordingly, the Court being satisfied that the marriage between the Petitioner and the Respondent had not been consummated is then entitled to annul the said marriage. As held in G v G [supra] this Court should “not tie the two people for the rest of their lives in a state of misery” as both the Petitioner and the Respondent had deliberately refused to consummate the marriage owing.

 

Decision 1.     The court held that the Petitioner’s application for a decree of nullity to dissolve his second marriage to the Respondent is allowed. The second marriage between the Petitioner and the Respondent is therefore annulled.

2.     The Court in view that it is common ground for a second marriage not been consummated owing to their incapacity to do so. Hence, the Court granted the Petitioner’s application for a decree of nullity of the marriage.

Key Take Away Marriage between the Petitioner and the Respondent had not been consummated is entitled to annul the said marriage.

 

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