Kwong Sin Hwa v Lau Lee Yen

• Jurisdiction: Singapore
• Judge: Warren Khoo L H J
• Judgment Date: 20 January 1993
• Neutral Citation: [1993] SGCA 6
• Docket Number: Civil Appeal No 90 of 1992
• Date: 20 January 1993
• Year: 1993
• Published date: 19 September 2003
• Plaintiff Counsel: Suresh Kumar (Lam Kumar Ng & Naidu)
• Citation: [1993] SGCA 6
• Defendant Counsel: Respondent not represented or present
• Court: Court of Appeal (Singapore)
• Subject Matter: Common law,Refusal by respondent to go through with ceremony,Contract,s 100(b) Women's Charter (Cap 353),Illegality and public policy,Pre-nuptial agreement to consummate marriage only after Chinese customary rites,Whether constitutes wilful refusal to consummate marriage,Whether pre-nuptial agreement not to consummate until after Chinese ceremony void as against public policy and Women's Charter,Non-consummation,Pre-nuptial agreement to consummate marriage only after Chinese customary ceremony,Family Law,Grounds of voidable marriage

Cur Adv Vult

This was an appeal against the decision of KS Rajah JC in which he dismissed the petition of the appellant for annulment of his marriage to the respondent, which was founded on the ground of wilful refusal by the respondent to consummate the marriage. Before us the respondent was not present or represented. Having heard and considered the arguments advanced on behalf of the appellant, we allowed the appeal and now give our reasons.

The appellant was at the material time, and presumably still is, a hairstylist and a permanent resident of Singapore. He was lawfully married to the respondent, then a factory worker and also a permanent resident of Singapore, at the Registry of Marriages in Singapore on 1 April 1991. On 15 February 1992, the appellant filed a petition praying for nullity on the ground that the respondent had wilfully refused to consummate the marriage under s 100(b) of the Women`s Charter (Cap 353). The petition was duly served on the respondent who entered an appearance stating that she did not wish to contest the petition. The petition was heard on 21 May 1992 and at the hearing the respondent appeared in court personally and confirmed that she was not contesting the petition.

The appellant testified that prior to the marriage at the registry, the parties had agreed that after the marriage they would continue to live separately and there would be no cohabitation or consummation until after the parties had performed and undergone the traditional Chinese customary rites and set up a matrimonial home. Hence, after the marriage, both parties lived separately at their respective addresses and had never lived together as husband and wife. In May 1991 the appellant asked the respondent to consummate the marriage; he asked her to have sexual intercourse with him when she was in his house. The respondent refused, stating that she came from a family with a traditional background and that she wished to have customary rites performed before consummating the marriage. The respondent, however, then refused to go through the Chinese customary rites, giving financial problems as the reason and later saying that she wanted to be a nun. The appellant further said that the respondent told him that she had since childhood wanted to be a nun but shelved the idea after meeting the appellant, and that after the marriage the respondent was having nightmares and her only solace was prayer and a nunnery was her place. For these reasons, the respondent had refused to undergo the Chinese customary rites and by such conduct had refused to consummate the marriage.

The learned judicial commissioner at the conclusion of the hearing dismissed the petition. In his grounds of judgment he held that on the evidence before him, he was not satisfied that there was credible evidence on which he could find wilful refusal to consummate the marriage. He did not say that he did not accept the evidence of the appellant or that the appellant was not a truthful witness. It seems to us therefore that when he said he was not satisfied that there was `credible evidence of wilful refusal` he meant that there was no evidence sufficient in law to warrant a finding of wilful refusal to consummate the marriage and not that the evidence given by the appellant was not credible. This is tolerably clear from the manner in which he dealt with the nature and validity of the pre-nuptial agreement entered into by the parties.

In arriving at his conclusion the learned judicial commissioner followed the decision of Punch Coomaraswamy J in Ng Bee Hoon v Tan Heok Boon [1992] 2 SLR 112 and refused to follow the decision of Choor Singh J in Tan Siew Choon v Tan Kai Ho. [1992] 2 SLR 112 The learned judicial commissioner said:

The petition was clearly filed on the basis that the law was as stated by Choor Singh J in Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9 , but no submission was made on the law. It is wrong to assume that a court becomes a rubber stamp simply because the petition is not contested.

There is a comprehensive statement of the law by Punch Coomaraswamy J in Ng Bee Hoon `s case1 and it is not necessary for me to give reasons for not following the decision in Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9 but I should, however, like to set out the provisions Parliament made for the solemnization of marriages under customary rites by persons who wish to do so without having to enter into a pre-nuptial agreement and run foul of the provisions of the Women`s Charter.

The learned judicial commissioner then went on to consider the various provisions of the Women`s Charter and in particular ss 181 and 182 and concluded thus:

Having regard to the provisions made by Parliament for persons to continue to marry and to solemnize marriages under customary rites there can be no valid reason for persons entering into pre-nuptial agreements on the ground that a traditional marriage is preferred. I can do no better than follow Punch Coomaraswamy J in Ng Bee Hoon v Tan Heok Boon [1992] 2 SLR 112 where the learned judge said:

`... it is contrary to the law as contained in s 45(1) of the Charter and to public policy for parties married under the Charter to blow hot and cold. They should not be enabled to say:

(a) we are lawfully married and all the incidents of marriages to our advantage attached to us, like income tax relief, constitution of a family unit to make us eligible to purchase a Housing and Development Board flat, etc; but,

(b) as another ceremony which we agreed upon prior to the solemnization at the Registry has not taken place, we are not married and therefore cannot live together or have sexual relations.`

To enable them to blow hot and cold will make a mockery of the law and of the marriage, the foundation of any civilized society.

On the evidence adduced before me, I was not satisfied that there was credible evidence on which I could find wilful refusal to consummate the marriage. The petition was dismissed.

We now turn to examine the two cases referred to by the learned judicial commissioner, Tan Siew Choon v Tan Kai Ho [1973] 2 MLJ 9 and Ng Bee Hoon v Tan Heok Boon [1992] 2 SLR 112 In the first case, the parties were married at the Registry of Marriages in Singapore. They had agreed that the ceremony at the registry was to be followed by another ceremony in accordance with the Chinese custom and it was understood that there could be neither cohabitation nor consummation of the marriage pending the Chinese customary ceremony. The husband, however, made no attempt to arrange for the Chinese customary marriage. The wife, after waiting for several months, discovered that the husband was engaged to be married to another girl. Several weeks later the husband informed the wife that his father objected to the marriage. After this, the husband and wife parted company and since then had never met. The wife petitioned for annulment of the marriage on the ground of wilful refusal on the part of the husband to consummate the marriage. Choor Singh J allowed the petition and granted the decree. He said, at pp 9-10:

I accept the petitioner`s evidence that the respondent knew his wife`s views on the matter that there would be no consummation until the Chinese ceremony which was to follow the wedding at the Marriage Registry. I accept the wife`s evidence that she is fully prepared to live with the respondent as man and wife in the fullest sense after the Chinese ceremony has been performed. By his refusal to proceed with the Chinese ceremony, the necessity for which was a pre-condition to matrimonial cohabitation, the husband, in the particular circumstances of this case, made it impossible for the wife with a good conscience to live with him as husband and wife and this refusal or failure to proceed with the Chinese ceremony was in this case a just excuse for her to refuse sexual intercourse even if it had ever been requested. There is no evidence that the husband ever requested intercourse in terms, and in my opinion, on the facts, it is really unnecessary to make a finding because even if he has requested intercourse she nevertheless has a just excuse for refusing until there has been a Chinese ceremony. By his refusal to proceed with such a ceremony the husband put it out of the power of the wife to request intercourse. She had suggested that they undergo a Chinese ceremony and live in a room in her mother`s house but there was no response to this suggestion from the husband. This request was refused without any just excuse on the part of the husband. On the facts of this case, in my opinion, there was wilful refusal on the part of the husband to consummate the marriage.

The learned judge also referred to the case of Jodla v Jodla [1960] 1 WLR 236[1960] 1 All ER 625 and said that that case supported the view he took.

In Ng Bee Hoon v Tan Heok Boon [1992] 2 SLR 112 the parties were married at the Singapore Registry of Marriages. They had previously agreed that they would only consummate the marriage after Chinese customary rites had taken place. Subsequent to the marriage the husband refused to go through the Chinese customary ceremony and the wife thereupon petitioned for annulment of the marriage claiming that the husband had wilfully refused to consummate the marriage. No appearance was entered by the husband and he did not appear at the hearing of the petition. The petition was heard before Punch Coomaraswamy J who was not satisfied that a case of wilful refusal to consummate the marriage had been made out on the evidence adduced. He directed counsel for the petitioner to submit full argument. Written argument was submitted and was supplemented by oral argument. In a reserved judgment, the learned judge dismissed the petition. The learned judge referred to three English cases, Jodla v Jodla [1960] 1 WLR 236[1960] 1 All ER 625 Kaur v Singh [1972] 1 WLR 105[1972] 1 All ER 292 and ...