Tutorial 1

1. Discuss the following cases:

(a) DOROTHY YEE YENG NAM V LEE FAH KOOI [956] MLJ 257

In the case of Dorothy Yee Yeng Nam v Lee Fah Kooi [956] MLJ 257, the parties were married
in Penang in accordance with the provisions of the Straits Settlements Christian Marriage
Ordinance, 1940 and thereafter set up their matrimonial home and lived in Perak. Since October
1950, the respondent had deserted the petitioner without cause. The petitioner applied for
dissolution of the marriage. The issue in this case was whether the Court had power to give the
petitioner the decree because of section 4(1)(a) of the Divorce Ordinance, 1952 which reads:
"Nothing herein shall authorise the Court to make any decree of dissolution of marriage except
— (a) where the marriage between the parties was contracted under a law providing that or in
contemplation of which marriage is monogamous…." The Court held that a Chinese domiciled
in Perak can validly enter into a monogamous form of marriage. Although the Christian
Marriage Ordinance 1940 does not expressly provide that a marriage under it is monogamous, it
is a law enabling the parties to enter into a marriage which they contemplate or intend shall be
monogamous. Therefore, a Chinese married under that Ordinance can apply for dissolution of
marriage under the Divorce Ordinance, 1952.

(b) CHU GEOK KEOW V CHONG MENG SZE [1961] MLJ 10

The case of Chu Geok Keow V Chong Meng Sze [1961] MLJ 10 is an appeal by the appellant
against the decision of the learned Magistrate dismissing her claim for the maintenance of herself
and her child. The appellant alleged that she is the secondary wife of the respondent. The
appellant alleges that there was a feast in Penang at her second sister's house although there was
no ceremony. About 10 persons attended, relatives and friends. A photograph was also taken.
She also alleged that she and the respondent later adopted two children and afterwards a son was
born to them. He used to maintain her and the last allowance she received from him was in
October 1954. However, the respondent denies that she is his secondary wife. He has never
introduced her to his relatives or friends in accordance with Chinese custom. He did not adopt
any children and denied that the son was his. He did not even know when he was born. The
witnesses for the appellant are mostly her relatives, and the friends who were called as witnesses
merely stated that they heard about the marriage from appellant's mother who is now dead, which
is hearsay. It is significant that no friends who attended the party were ever called to give
evidence. The report of the birth of the son was made by the appellant and respondent denied that
it was his son and knew nothing about the birth. The court was the opinion of that a photograph
is not conclusive evidence of proof of marriage and with regard to the adoption of the children, it
was not a sufficient proof of marriage. The Court held that there was no mutual consent to marry
and the appellant was not a secondary wife. Therefore, it can be concluded that the requirement
for a valid marriage with a (secondary wife) under the Chinese customary laws was simply a
consensual marriage where the ceremony and formalities were not necessary but evidentiary
only. Support purposes

(c) RE DING DO CA [1966] 2 MLJ 220

In the case of Re ding Do Ca [1966] 2 MLJ 220, the deceased went through a Christian marriage
with the 1st defendant in 1923 and a second marriage with the 1st plaintiff according to Chinese
custom in 1937. The deceased died sometime in 1949 intestate. The plaintiffs sought declarations
that they were entitled to share in the estate of the deceased as beneficiaries. The issues in this
case were whether the subsistence of a Christian monogamous marriage would operate to
prevent the deceased from entering into a subsequent valid marriage, and the deceased, who was
a Christian during his life time could validly enter into a polygamous marriage. The Federal
Court held that with regards to persons of the Chinese race, the courts have given judicial
recognition to certain customs which recognize polygamous marriages. As such the deceased
could contract a valid marriage under the Chinese custom despite of his earlier marriage with
another woman under the Christian Marriage Enactment.

FROM LEXIS

Held:

 (1)the Subsistence of a Christian monogamous marriage would not constitute a

bar to the deceased from subsequently contracting a marriage which would be
valid by his personal law;

(d) LAM WAI HWA V TOH YEE SUM [1981] 2 MLJ 131

In the case of Lai Wai Hwa v Toh Yee Sum, the deceased a Chinese had married the first
appellant according to Chinese custom. On his death the first appellant obtained letters of
administration to his estate. The deceased had married the first respondent, while his first
marriage was still subsisting. The marriage was conducted according to Buddhist rites and was
registered under the Registration of Marriages Enactment. The deceased in his lifetime gave a
monthly allowance for the maintenance of the first respondent and her children and after his
death in 1960 this was continued until 1975. When the respondent discovered that she and her
children were left out as beneficiaries of the deceased's estate, she applied to the court for a
declaration that she was entitled to share in the estate. The appellants contended that the first
respondent's marriage to the deceased was null and void. Suffian L.P. sitting in the High Court
held that the marriage was valid and also that the claim was not statute-barred. The appellants
appealed. The Court of Appeal held that even although the deceased made a false statement
when he registered the marriage with the first respondent, this did not affect the validity of the
marriage. Furthermore, Chinese marriages in Malaysia are polygamous and in this case on the
facts the union of the first respondent with the deceased constituted a valid secondary marriage
and the first respondent was therefore a secondary wife of the deceased.

(e) YEAP LEONG HUAT V YEAP LEONG SOON [1989] 3 MLJ 157

In the case of Yeap Leong Huat V Yeap Leong Soon [1989] 3 MLJ 157, one Yeap Chor Ee left
a will wherein he gave bequests to the male children of his son Yeap Hock Hoe 'by wife Kim
Lian or his principal wife for the time being to whom he shall be married after the date of this my
will'. The facts showed that Yeap Hock Hoe met Yap Kim Lian and took her as his secondary
wife in 1944. She bore him two daughters and four sons. During this time Yeap Hock Hoe had a
principal wife, Hooi Kum Chee, who lived with him in the family house, 'Homestead'. Yap Kim
Lian and her children lived outside. Hooi Kum Chee died in 1948 and some three years after her
death Yeap Hock Hoe married her sister Hooi Sooi Wan. The marriage was conducted in
Homestead according to Chinese rites and custom in the presence of Yeap Chor Ee and his wife
Lee Cheng Kim, the father and mother of Yeap Hock Hoe. Yeap Chor Ee died in 1952 and left a
will made in 1950. In 1980 Yeap Hock Hoe died. The plaintiffs, the children of Yeap Hock Hoe
and Hooi Sooi Wan claimed to be entitled to share in the residuary estate of the testator. The
learned trial judge found on the evidence that Hooi Sooi Wan was the principal wife of Yeap
Hock Hoe and therefore the plaintiffs were entitled to take under the will of Yeap Chor Ee. The
appellants appealed. The findings of the learned judge was attacked on two main grounds, firstly,
the learned judge was wrong to say that Yap Kim Lian was not the principal wife merely on the
ground that she did not live in Homestead and secondly, the learned judge was wrong to hold
that Hooi Sooi Wan was a principal wife as the marriage ceremony held on 22 December 1957
was appropriate to the marriage of a principal wife. The Federal Court held that firstly, there was
ample evidence on which the learned judge could reach the conclusion which he did that Hooi
Sooi Wan is the principal wife of Yeap Hock Hoe and therefore the plaintiffs-respondents are
entitled to share in the residuary income of the estate of the testator. Secondly, according to
Chinese custom a man can have one principal wife at any one time. There cannot be two
principal wives existing at the same time. But he can have one or more secondary wives without
a principal wife. When Hooi Kum Chee died Yeap Hock Hoe lived at the family house
Homestead without a principal wife. Yap Kim Lian was acknowledged as a secondary wife at
that time. When Yeap Hock Hoe married Hooi Sooi Wan, she then became his principal wife.
H married X
X or principal wife
H married Y in the lifetime of X
X died, H married X's sister, Z
So the question who was the principal wife: Y or Z?

(f) PARAMESWARI V AYADURAI [1959] MLJ 195

In the case of Parameswari v Ayadurai [1959] MLJ 195, the Court recognized the evidence of
the priest who solemnized the marriage ceremony between the petitioner and the respondent with
regards to the traditional features of a marriage between Ceylon Tamil Hindus.  There was also
expert evidence on the traditional features of a marriage between Ceylon Tamil Hindus. The
marriage was monogamous and binding. The court held that the petitioner was entitled to a
decree of dissolution of her marriage as the respondent marry another woman subsequently after
this marriage.

Teacher’s discussion

Wife asking divorce husband marry another woman during subsistence of marriage

Court ask her to proof her marriage is a monogamous one

She brought a petition to divorce polygamy

 2. Wong Ai Nee married to Tan Cheng Hui according to Chinese rites in 1977. They had 2
daughters. In 1980 Tan Cheng Hui married Chua Mui Bee under the Christian Marriage
Ordinance. Chua Mui Bee was not aware that Tan Cheng Hui had another wife. Wong Ai
Nee brought an action to declare the 2nd marriage between Tan Cheng Hui and Chua Mui
Bee was invalid. Advise the parties.

Whether the marriage between Tan Cheng Hui and Wong Ai Nee is valid according to the
Chinese rites?

Issue:
Whether the marriage between Tan Cheng Hui and Chua Mui Bee is valid although Tan Cheng
Hui already had a wife, that is Wong Ai Nee?

Law:
In the case of Re ding Do Ca [1966] 2 MLJ 220, the deceased went through a Christian marriage
with the 1st defendant in 1923 and a second marriage with the 1st plaintiff according to Chinese
custom in 1937. The deceased died sometime in 1949 intestate. The plaintiffs sought declarations
that they were entitled to share in the estate of the deceased as beneficiaries. The issues in this
case were whether the subsistence of a Christian monogamous marriage would operate to
prevent the deceased from entering into a subsequent valid marriage, and the deceased, who was
a Christian during his life time could validly enter into a polygamous marriage. The Federal
Court held that with regards to persons of the Chinese race, the courts have given judicial
recognition to certain customs which recognize polygamous marriages. As such the deceased
could contract a valid marriage under the Chinese custom despite of his earlier marriage with
another woman under the Christian Marriage Enactment.

BOTH MARRIAGE TOOK PLACE BEFORE ENFORCEMENT OF LRA

SECTION 4 OF LRA CAME INTO FORCE IN FIRST OF MARCH 1982

SECTION 4 discuss prior to this date

Validity according to the Chinese customary law

THEN DISCUSS CHINESE CUSTOMARY MARRIAGE (NATURE)

THEN CASES

BOTH MARRIAGE ARE VALID UNDER CUSTOMARY LAW , DEEMED TO BE

REGISTERED UNDER THE SECTION
SECTION 5

LRA HAS MONOGAMY

Discuss important or not chua mui bee was not aware husband got another wife (wont affect validity )

Mention sec 4 of the LRA 1976

Sec 4 (1) state that the validity of marriages pre 1976

Sec 4 (2)

Sec 4 (3)

Sec 5

Discuss the validity of Chinese customary marriage baru go LRA, nature of Chinese customary
marriages, add case laws, court give recognition of Chinese marriages based on race and not domicile,
can polygamy, then can marry another wife. Then go ding do ca, then discuss whether the party know
abt the other wife or not. Sec 4(2) then would allow marry. Sec 5 give full stop, after 1 march 1982
cannot marry ady. LRA introduce marriage must be monogamous. Saving clause is to protect the
previous marriages before LRA.

Application:
The case Re ding Do Ca [1966] 2 MLJ 220 provides that subsistence of a Christian
monogamous marriage would not constitute a bar from contracting a marriage which would be
valid by his personal law. The personal law prevails the Christian monogamous marriage in this
case. If it is valid by his personal law, the marriage would be valid even though the requirement
of monogamous in a Christian marriage. Applying this case to the current situation, Tan Cheng
Hui married Chua Mui Bee under the Christian Marriage Ordinance in 1980 would not be barred
from contracting a marriage with Wong Ai Nee. Tan Cheng Hui, a Chinese is allowed to have
more than a wife as his personal law, which is the Chinese custom recognizes polygamous
marriages. In other words, Tan Cheng Hui can marry Chua Mui Bee although he already had
Wong Ai Nee as her wife.

Conclusion:
In conclusion, the marriage between Tan Cheng Hui and Chua Mui Bee is most likely to be
valid.