The Dilemma As to Registration of Non-Muslim

Customary Marriages in Malaysia:

Finally Laid to Rest?

Sridevi Thambapillay *

Contents

I. Introduction
II. Customary Marriages Prior to the LRA
A. Chinese Customary Marriages
B. Hindu Marriages
III. Customary Marriages from 1 March 1982
IV. Conclusion

Abstract

The Law Reform (Marriage and Divorce) Act 1976 (“the LRA”), which governs
non-Muslims in Malaysia, was enacted to provide for monogamous marriages and
the solemnisation and registration of such marriages; to amend and consolidate the
law relating to divorce; and to provide for matters incidental thereto. The LRA came
into force from 1 March 1982. The Government felt it necessary to introduce a statute
to govern the abovementioned matters concerning non-Muslims in Malaysia, as prior
to the enforcement of the LRA, non-Muslims were governed by their respective
personal laws when it came to family matters and there was no uniformity. As could
be noted from its long title, the LRA was enacted, inter alia, to provide for registration
of non-Muslim marriages. However, section 34 of the LRA, which provides for the
legal effect of registration, has caused mischief concerning customary marriages after
1 March 1982 which were not registered. In the past decade, there have been differing
views expressed by the learned judges as to the interpretation of section 34. In this
article, the writer attempts to examine the position of customary marriages prior to

*
Lecturer, Faculty of Law, University of Malaya
2 Asia Law Review [Vol. 4, No.2 : ??~??

and after the enforcement of the LRA, in particular, the courts’ interpretation of
section 34. The recent Federal Court ruling in Chai Siew Yin v. Leong Wee Shing is
welcomed in the face of the above dilemma. The Federal Court has ruled that
customary marriages after 1 March 1982, which were not registered, are not
recognised under the law. This landmark decision reversed the verdict of the Court of
Appeal and the High Court which had recognised the customary marriage between
the parties although it was not recognised.

I. Introduction

Malaysia, being a multi-racial country, comprises people from different races,

religions, customs and usages. In family matters, each one is governed by his or her
personal laws. Thus, the Chinese are subjected to the personal law of the Chinese and the
Hindu law in family matters governs followers of the Hindu religion. The Muslims are
governed by the Islamic family law.1 The Law Reform (Marriage and Divorce) Act
19762 (“the LRA”) was enforced throughout Malaysia from 1 March 1982. According to
the long title of the LRA, it is an Act to provide for monogamous marriages and the
solemnisation and registration of such marriages; to amend and consolidate the law
relating to divorce; and to provide for matters incidental thereto. Thus, it could be noted
that the LRA was enacted, inter alia, for the purpose of registration of monogamous
marriages.3
Howsoever, a particular provision in the LRA, section 34, has resulted in a dilemma
as to whether customary marriages after 1 March 1982 need to be registered in order to
be recognised by the law. Section 34 provides as follows:

“Nothing in this Act or the rules made thereunder shall be construed to render
valid or invalid any marriage which otherwise is invalid or valid merely by reason of
its having been or not having been registered.”

1
Mimi Kamariah Majid, Family Law in Malaysia, Malayan Law Journal, 1999, p.2
2
Act 164
3
Note that this was one of the recommendations made by the Royal Commission on Non-Muslim Marriage
and Divorce Laws, appointed to examine the laws prior to the enactment of the LRA relating to
non-Muslim marriage and divorce. The Royal Commission recommended that registration of marriages
should be made compulsory “for the proper implementation of such law”
2007] The Dilemma As to Registration of Non-Muslim Customary Marriages in Malaysia: Finally Laid to Rest? 3

There have been differing views by learned judges on the effect of the above
provision. However, the recent Federal Court ruling in the case of Chai Siew Yin v.
Leong Wee Shing4 has held that customary marriages that take place after 1 March 1982
have to be registered in order to be recognised by the law. Before looking at the
decisions by the courts as to the effect of customary marriages after 1 March 1982 which
were not registered, let us examine the position of customary marriages prior to the
enforcement of the LRA.

II. Customary Marriages Prior to the LRA

Customary marriages solemnised prior to the enforcement of the LRA did not
require registration. Courts have to sieve through the evidence adduced by feuding
parties before determining whether a valid marriage had been solemnised according to
the relevant religion, custom or usage.5 Two main forms of customary marriages in
Malaysia will be examined in this part, that is, Chinese customary marriages and Hindu
marriages.

A. Chinese Customary Marriages

In the case of In the Estate of Yeow Kian Kee (Deceased); Er Gek Cheng v. Ho Ying
Seng6, the issue was whether the plaintiff, Er Gek Cheng was a secondary wife (‘tsip’) of
the deceased, Yeow Kian Kee. In delivering his judgment, Murray-Aynsley, CJ stated
that the courts have decided that any male Chinese, not a Christian, domiciled in the
Colony can have an unlimited number of tsips. The status of a tsip has its origin in
contract. That is, it is simply consensual. His Lordship further stated:7

“The legal requirements for marriage with a tsai8 and a tsip are, I think, the same.

4
Federal Court Civil Appeal No. 02-10 of 2003 (W)
5
Supra n. 1 at p. 103
6
[1949] 1 MLJ 171
7
Ibid at p. 172
8
“Tsai” means the primary wife.
4 Asia Law Review [Vol. 4, No.2 : ??~??

This means that the law of this Colony merely requires a consensual marriage, that is,
agreement to form a relationship that comes within the English definition of marriage.
It is no longer any part of that conception that such a relationship must be life-long. It
merely means one of indefinite duration as distinct from one for a definite period as is
allowed among Moslems.”

From the above statement, it could be observed that the learned judge has laid down
two elements necessary to constitute a valid Chinese marriage, the first being a
consensual marriage, and the second that the relationship must be one of indefinite
duration. On the issue of proving that there was a marriage ceremony held, the learned
judge stated that it is merely evidentiary and that it was not essential to the acquisition of
the status of tsip. The judge further stated:9

“A formal contract in writing would be conclusive. If the parties were to live as

such publicly so as to acquire the reputation of being man and tsip that would also be
evidence that the status had been acquired. On the other hand, I do not consider that
mere cohabitation for a considerable period would by itself be sufficient evidence.”

B. Hindu Marriages

In Ramasamy v. PP10, the appellant was charged under section 498 of the Penal Code
for enticing away a married woman. One of the grounds raised by the counsel for the
appellant was that there was no sufficient proof of the marriage between the woman
alleged to have been enticed and the complainant. Cussen J. held that in order to prove a
valid marriage, there should be evidence of the actual ceremonies performed at the
marriage and expert evidence to show that those ceremonies constituted a valid marriage.
It is a question in each case of the sufficiency of the evidence to establish the two
necessary matters required, i.e. what the actual ceremony was and that it constitutes a
valid marriage.

In the above case, there was the evidence of the complainant, who described in detail
the various ceremonies performed at his marriage. There was also the evidence of the
bride’s mother who stated that the marriage was according to the customs of their caste.

9
Supra n. 6 at p. 173.
10
[1938] 1 MLJ 137
2007] The Dilemma As to Registration of Non-Muslim Customary Marriages in Malaysia: Finally Laid to Rest? 5

The court also took into consideration the evidence of a “Pandaram” (an assistant priest”)
who had conducted a number of marriages and whose evidence as to the proper
ceremonies necessary for a valid marriage established that the ceremonies actually
performed in this marriage were sufficient to constitute a valid marriage. Therefore, the
court held that the complainant succeeded in proving that a valid marriage had taken
place.

The court in the above case had emphasised on two matters in order to see whether a
valid Hindu marriage had taken place, first, the evidence of the actual ceremony and
secondly, expert evidence to show that the ceremony constituted a valid marriage.

In Paramesuari v. Ayadurai11, the respondent had remarried another woman, while

his first marriage was still in legal existence. The petitioner had to prove, inter alia, that
she and the respondent were parties to a valid and binding contract of a monogamous
marriage. Evidence from the priest who performed the marriage ceremony between the
petitioner and the respondent was adduced. He (the priest) described the features of that
ceremony. In addition, an expert witness gave expert evidence on the traditional features
of a marriage between Ceylon Tamil Hindus and also gave his opinion on what are the
essential parts of such a ceremony. In accepting the evidence by both the above
witnesses, Good J. stated as follows:

“I am satisfied that the essentials were present in the ceremony performed by the
Reverend Somaskanda Kurukar when he married the parties. This was a marriage
ceremony solemnised according to Ceylon Tamil Hindu custom and, according to Dr
Swami Satyananda, such marriages are monogamous…. I therefore have no
hesitation in finding as a fact that the parties were parties to a binding marriage
contract which was monogamous in its nature.”

In Nagapushani v. Nesaratnam & Anor12, the plaintiff brought an action against the
first defendant ((her husband) and the second defendant (her mother-in-law) pertaining
to the title to a certain property. She claimed, inter alia, to be the wife of the first

11
[1959] 1 MLJ 1995
12
[1970] 2 MLJ 8
6 Asia Law Review [Vol. 4, No.2 : ??~??

defendant and that she went through a ceremony of marriage with the first defendant
according to Hindu rites, which was denied by the first defendant. In support of her
contention, the plaintiff produced the following as evidence:
a) A copy of the invitation card with the names of the sponsors stated therein.
b) The wife of one of the sponsors testified that she and her husband had given the
plaintiff away at the wedding.
c) As the priest who performed the ceremony could not be located, the plaintiff
described the ceremony with some detail. She produced a “tali” (a golden chain)
which she claimed the first defendant tied around her neck during the wedding
ceremony as a symbol of marriage. The goldsmith who made the tali recognised
the tali when it was produced in court and acknowledged the fact that he was the
one who made it.
d) Witnesses who attended the wedding were called.
e) The plaintiff also produced a photograph showing her and the first defendant taken
about a year after the wedding. The witnesses who attended the wedding also
testified that the plaintiff and the first defendant had paid them social calls.

Having gone through the evidence tendered by the plaintiff, Raja Azlan Shah J. (as
his Lordship was then) stated:13

“In view of the evidence before me, I am satisfied that the plaintiff and the first
defendant went through the ceremony of marriage in 1942 according to Hindu rites,
cohabited for a number of years and enjoyed the reputation of husband and wife.
…

Marriage by Hindu rites is common in this country and is commonly regarded as

binding on the parties. It will be startling to hold otherwise in view of the prevalent
practice. Such a marriage was recognised in Paramesuari v Ayadurai [1959] MLJ
195 where the parties went through a ceremony of marriage according to Hindu
custom.”

Therefore, in order to prove that a valid marriage had taken place, it was indeed
cumbersome for the parties thereto as they had to tender various types of evidence as

13
Ibid at p.9
2007] The Dilemma As to Registration of Non-Muslim Customary Marriages in Malaysia: Finally Laid to Rest? 7

mentioned above, such as invitation cards, the priest who solemnised the marriage,
expert evidence to prove that a valid marriage had taken place according to the relevant
custom or rites, witnesses who attended the wedding etc. As registration of such
customary marriages was not required, third parties who wished to find out whether such
a marriage had taken place would face difficulties. As a result this would in turn make it
easier for either of the parties to a customary marriage to practice polygamy as the
intended bride or groom would have difficulty in finding out whether the other party was
already married.

III. Customary Marriages from 1 March 1982

Pursuant to the enforcement of the LRA from 1 March 1982, it is mandatory for
non-Muslims to marry in accordance with Part III of the LRA, failing which their
marriages would be void marriages. 14 Section 5(4) emphasises this further when it
provides that after the appointed date, no marriage under any law, religion, custom or
usage may be solemnised except as provided in Part III.

However, as mentioned earlier, section 34 has been applied by the courts to validate
customary marriages after 1 March 1982 which were not registered. In the last decade,
there have been a few cases which have discussed this issue. For instance, in the case of
Tam Ley Chian v. Seah Heng Lye,15 the High Court held that the marriage solemnised
under the Chinese custom in 1986 but not registered was void. It must however be noted
that both parties conceded this point.

Four years later, in Chong Sin Sen v. Janaki Chellamuthu,16 a widow sued Chong on
behalf of her husband who died in a road crash. Her marriage was not registered but
there was a customary marriage in 1991. The Johor Bahru High Court however ruled that
the word “wife” in the Civil Law Act was not restricted to women whose marriages were

14
Section 5(3).
15
[1993] 3 MLJ 696
16
[1997] 5 MLJ 411
8 Asia Law Review [Vol. 4, No.2 : ??~??

registered.

In Venaja Rajoo v. R. Ravindran Ramasamy,17 the main issue was concerning the
custody of the plaintiff’s and defendant’s son. Prior to deciding on this issue, the learned
judge had to decide whether the plaintiff and the defendant were legally married to each
other. In this case, the plaintiff and defendant were married according to traditional
Hindu rites but the customary marriage was not registered pursuant to the LRA. The
learned judge referred to section 34 of the LRA and held that by virtue of section 34, the
customary marriage solemnised between the plaintiff and the defendant was valid. It
should not be declared as invalid because it was not registered.

It is submitted that there was not much of a discussion as to the effect of section 34 in
the above case. The High Court did not refer to any previously decided cases on this
issue. It merely referred to section 34 and validated the marriage between the plaintiff
and defendant.

In Yeoh v. Chew,18 the issue was whether the parties’ marriage was valid.. The court
found that there was no evidence, save for a dinner invitation card, that the parties’
marriage had been solemnised pursuant to section 24 of the LRA. Their marriage had
also not been registered. In order to decide on the above issue, the learned judge
examined the objective of the LRA by looking at its long title. The court then looked at
Part III of the LRA which provides for the restrictions on a marriage. Section 9 of the
LRA states that a marriage under the Act may be solemnised only by a Registrar. The
qualifying word “only” in that section emphasises that only a Registrar may solemnise
the marriage. The Registrar of Marriages is a public officer appointed by the Minister
under section 28 of the LRA. The Minister may also appoint any person, whether a
public officer or not, to be an Assistant Registrar.

Section 22 of the LRA deals with the solemnisation of marriages in churches or

17
[2001] 7 CLJ 399
18
[2001] 4 CLJ 631
2007] The Dilemma As to Registration of Non-Muslim Customary Marriages in Malaysia: Finally Laid to Rest? 9

temples or at the Registry of Marriages. As for church or temple marriages, section 22(4)
of the LRA provides that a statutory declaration (containing the matters provided in
section 22(3)) must be given to the Assistant Registrar solemnising the marriage. Section
22(1)(c) provides for the solemnisation of marriages in places other than a Registrar’s
office as follows:

“… in a church or temple or at any place of marriage in accordance with s 24 at

any such time as may be permitted by the religion, custom or usage which the parties
to the marriage or either of them profess or practice.”

Section 24 further amplifies the requirement abovementioned. It provides:

“24. Solemnisation of a marriage through religious ceremony, custom or usage

(1) Where any clergyman or minister or priest of any church or temple is appointed by
the Minister to act as Assistant Registrar of Marriages for any marriage district, such
clergyman or minister or priest may after delivery to him of a statutory declaration
under subsection (3) of section 22 solemnise any marriage, if the parties to the
marriage or either of them profess the religion to which the church or temple belong
in accordance with the rites and ceremonies of that religion.
(2) Where any person is appointed by the Minister to act as Assistant Registrar of
Marriages for any marriage district such person may after delivery to him a statutory
declaration under subsection (3) of section 22 solemnise any marriage in accordance
with the custom or usage which the parties to the marriage or either of them practise.
(3) An Assistant Registrar solemnising a marriage under this section shall in some part
of the ceremony remind the parties that either of them shall be incapable during the
continuance of the marriage of contracting a valid marriage with any other person
and if either of them shall marry during the continuance of the marriage he or she
shall commit an offence.
(4) In this section,
“priest of a temple” includes any member of a committee or management or
governing body of that temple and any committee member of any religious
association;
“priest of a church” includes any officer or elder of the church.”

In summing up the objectives of the LRA as to solemnisation of religious or

customary marriages, the court stated as follows:

“ … for a religious or customary marriage, its solemnisation can only be effected

upon satisfaction of two conditions. Firstly, the person solemnising the marriage, be
he a religious official of a church or temple or any other person must have been
appointed by the Minister as an assistant registrar. Secondly, there must have been
10 Asia Law Review [Vol. 4, No.2 : ??~??

delivered to the assistant registrar a statutory declaration either under section 24(1) or
if the marriage is not a religious ceremony, under s.22(3). The assistant registrar
solemnising the marriage shall also remind the parties, during the solemnisation
ceremony that it is an offence for the parties or either of them to contract into a
polygamous marriage. This is to emphasise that after the coming into force of the Act
on 1 March 1982 the law, for the purposes of this Act, no longer gives legal
recognition to secondary wives under Chinese custom.”

The learned judge moved on to examine whether undergoing the Chinese customary
tea ceremony per se is sufficient to constitute a lawfully recognised marriage. In
response to this question, his Lordship stated:

“Now, for the purpose of the Act, this customary rite alone, however recognizable
and acceptable is insufficient to clothe it with legal validity for no matrimonial court
will recognise a tea ceremony per se performed after 1 March 1982, as a marriage. As
such, Chinese couples intending to get married nowadays will either solemnise and
register their marriages at either the registrar’s office or at a temple or at a Buddhist or
a clan association premise as provided under s.22 of the Act. The registrar or an
assistant registrar (who may or may not be a religious personage) will require the
parties to submit the National Registration Department form i.e. Borang JPN KC02
the contents of which includes the legal requirements of statutory declaration as laid
down under ss. 22 and 24 of the Act … Upon the solemnisation of the marriage, the
registrar or an assistant registrar (in cases where the marriage is solemnised at a
temple or an association) will immediately issue a marriage certificate, known as the
Marriage Register as provided under Form I of the Act.”

The court further added that with the coming into force of the LRA on 1 March 1982,
a marriage, to be lawfully recognised, may be solemnised only in accordance with the
provisions under Part III (section 5(4)). No one can come before a matrimonial court
stating that he or she is lawfully married by way of custom if it cannot be shown that the
solemnisation of that marriage was in accordance with Part III of the LRA, for otherwise,
it would make the LRA otiose and bring back the era of disarray for which the LRA
purports to regulate. Secondary wives may then appear aplenty. Therefore, under the
LRA, a customary marriage can be solemnised only by an appointed assistant registrar
under section 24(2) upon being satisfied by way of a statutory declaration that the
marriage is in accordance with the custom which the parties or either of them practiced.
Section 22(4) of the LRA provides for the mandatory requirement that regulates a valid
marriage post the LRA. It states as follows:
2007] The Dilemma As to Registration of Non-Muslim Customary Marriages in Malaysia: Finally Laid to Rest? 11

“Every marriage purported to be solemnised in Malaysia shall be void unless a

certificate of marriage or licence has been issued by the Registrar or Chief Minister or
a statutory declaration under subsection (3) has been delivered to the Registrar or
Assistant Registrar, as the case may be.”

The learned judge then referred to the case of T v. O19, where it was held that failure
to comply with section 22(4) would render a marriage void ab initio and that such a
marriage cannot be termed as a monogamous marriage as contemplated under the LRA.
Such a marriage would be a non-event.

Commenting on section 34, the court held that an invalid marriage by reason of
non-solemnisation, such as the one found in the present case cannot be rendered valid
merely because it was not registered. The very solemnisation of this purported marriage
itself was in question as it had not complied with section 5(4) of the LRA. Therefore, it
was a non-marriage from the start, for which the matrimonial court could not exert its
jurisdiction.

It is submitted that the above case aptly described the objective of the LRA in
relation to the solemnisation and registration of customary marriages. Further thereto,
the decision in the above case as to the requirement of registering a customary marriage
has kept to the spirit and intendment of the LRA.

In Chia Kok Siong v. Chong Chee Chai & Anor,20 the plaintiff was the husband of
one Cheong Foong Meng, deceased. The plaintiff alleged that he and the deceased had
performed the marriage according to Chinese customary rites in June 1998. But,
although they had signed the form to register the marriage, they had failed to register the
marriage under the LRA. The plaintiff alleged that the deceased’s parents who are her
administrators had concealed the fact that he was the husband at the hearing of their
application to be appointed as administrators, and have since denied him his rights under
section 6(b) of the Distribution Act 1958.

19
[1994] 3 CLJ 593
20
[2003] 3 CLJ 415
12 Asia Law Review [Vol. 4, No.2 : ??~??

The issue before the court was whether under the LRA an unregistered Chinese
customary marriage is a valid marriage. The learned judge referred to section 34 of the
LRA and stated that in its plain and ordinary meaning the section means that the act of
registration does not confer validity upon a marriage otherwise invalid, and neither does
failure to register render a marriage otherwise invalid to be valid. To that extent the act of
registration is a mere formality. He then referred to four cases where reference was made
to section 34. First, the High Court in Leong Wee Shing v. Chai Siew Yin21 held that as
there was in fact a valid Chinese customary marriage, the failure to register was of no
consequence. Secondly, in the case of Yeoh v. Chew22, it was held that there was no
marriage. Thirdly, Mohd. Ghazali J. (as his Lordship then was) in Chong Sin Sen v.
Janaki Chellamuthu (suing as widow of Muniappa Pillai a/l Maritha Muthoo, Deceased,
on behalf of herself and the dependents of the Deceased)23 held that non-registration
would not invalidate an otherwise valid marriage. Fourthly, in Re Estate of Chong Swee
Lin; Kam Soh Keh v. Chan Kok Leong & Ors24 expert evidence was brought to prove
that there was in fact a valid Chinese customary marriage.

His Lordship stated that a marriage is not a marriage unless it is a valid marriage.
Otherwise it remains a purported marriage, without the legal effect of a valid marriage.
He further stated:

“The Law Reform Act cannot have intended by s.34 to allow every purported
marriage to be held valid regardless of whether it is a marriage recognized as valid by
the respective religious ceremony, custom or usage relied upon.”

Therefore it was pertinent to decide as to whether the plaintiff’s alleged marriage

was a valid Chinese customary marriage under the LRA. The court referred to section
24(2) which provides that after a statutory declaration under section 22(3) has been
delivered to him, a person appointed by the Minister to act as Assistant Registrar of

21
[2000] 1 CLJ 439
22
Supra n 18
23
Supra n 16
24
[1996] 1 BLJ 485
2007] The Dilemma As to Registration of Non-Muslim Customary Marriages in Malaysia: Finally Laid to Rest? 13

Marriages may solemnise the marriage in accordance with the custom or usage which
the parties to the marriage or either of them practice. His Lordship further added that
since section 24(3) provides that the abovementioned Assistant Registrar shall in some
part of the ceremony remind the parties that either of them shall be incapable during the
continuance of the marriage of contracting a valid marriage with any other person and if
either of them shall marry during the continuance of the marriage, he or she shall commit
an offence, it is crystal clear that the Assistant Registrar of Marriages must be present in
the customary marriage under the LRA to perform his function. Thus, a valid marriage
must be solemnised by the person appointed to act as Assistant Registrar of Marriages.
The learned judge added that due to the above requirement, nothing in section 34
diminishes the requirement of solemnisation as required under sections 24(2) and 22(3)
of the LRA.

The purpose of having the Assistant Registrar at the solemnisation of the wedding
was aptly described by the judge as follows:

“The attendance of the Assistant Registrar of Marriages is, in my view, intended

by the Law Reform Act to protect not only existing wives and children, but also the
star-struck bride who might have been too blinded by promises of marital bliss to be
concerned to ask any questions. The purpose of the requirement of solemnization by
the Assistant Registrar of Marriages in marriages not conducted under the formal
process of a civil marriage, such as marriages through custom or usage, is
self-evident. Such marriages, if unsupervised by an Assistant Registrar of Marriages
to solemnize it, are obviously capable of abuse. Indeed, it is so obviously so that it is
very clear that the Law Reform Act does not intend the marriages that are not
solemnized by the Assistant Registrar of Marriages to be recognized as a valid
marriage. It would liberalize the very abuse that the Law Reform Act seeks to
control.”

As the pleadings before the court in the above case only assert that a Chinese
customary ceremony of invitation, tea-ceremony, photographs and dinner was carried
out, with no reference to solemnisation under the LRA, the court dismissed the
application.
14 Asia Law Review [Vol. 4, No.2 : ??~??

In Leong Wee Shing v. Chai Siew Yin25, the plaintiff applied for an order that her
marriage to one Lau Yen Yoon (“the deceased”) performed pursuant to Chinese
customary rites in November 1995 be declared valid. The defendant, the plaintiff’s
mother-in-law, contended that the abovementioned marriage was void for
non-registration. The defendant relied on section 27 of the LRA which requires every
person ordinarily resident in Malaysia and every Malaysia citizen or domiciliary who is
resident abroad to register their marriage if it takes place after 1 March 1982.

The High Court, in allowing the plaintiff’s application, held as follows: Firstly, that
the defendant had ignored section 34, which according to the learned judge was
introduced to avoid a situation in which a marriage, which occurred before 1 March 1982
and not registered, would be held to be void and not recognised as valid. Section 34 has
the effect of validating such marriages that were not registered before 1 March 1982.
Therefore the only issue that the defendant can possibly raise is whether there was a
valid marriage in this case. If there was a valid marriage, then clearly section 34 would
validate this marriage.

It is submitted that marriages prior to 1 March 1982 are deemed to be registered

under section 4 of the LRA. Therefore, there is no need to refer to section 34. This fact
was actually acknowledged by the learned judge when he stated:26

“Whilst I agree that s. 4 of the Act refers to customary marriages solemnized prior
to 1 March 1982, s.34 is the proper section to validate this marriage.”

Furthermore, there was no need to refer to marriages prior to 1 March 1982 as the
facts in this case clearly mention that the alleged marriage here took place in 1995.

Secondly, the court held that the defendant did not raise any issue in respect of the
“tea-drinking ceremony”. Therefore, such ceremony had indeed taken place. As the
deceased and the plaintiff had taken wedding photographs, printed and sent out wedding

25
Supra n 21
26
Ibid at p.167
2007] The Dilemma As to Registration of Non-Muslim Customary Marriages in Malaysia: Finally Laid to Rest? 15

invitation cards, invited guests for the wedding dinner, there were sufficient grounds to
find that a valid marriage had taken place between the plaintiff and the deceased.
According to section 34, the plaintiff does not even have to show that there was a
marriage valid according to Chinese customary rites so long as there was a marriage.
This is due to the fact that section 34 refers to the existence of “any marriage”. The very
act of printing and sending wedding invitations, inviting friends and relatives to witness
the wedding between the plaintiff and the deceased and also the “tea-drinking
ceremony” and the further request to attend the wedding dinner that same night clearly
reflect the act of marriage having taken place.

Thirdly, the court referred to the solemnisation procedure provided under Part III of
the LRA, in particular to section 22(1)(c), and held that since a wedding ceremony is
“permitted by custom or usage” which both the plaintiff and the deceased practiced,
together with the “tea-drinking ceremony” had taken place at a place as stated in their
wedding invitation card, there was proper solemnisation of the said marriage. Although
it was not registered, it is of no consequence as section 34 takes care of that and validates
the marriage.

It is submitted that the court should have looked at the solemnisation procedure in
detail as was done by the courts in Yeoh v. Chew27 and Chia Kok Siong v. Chong Chee
Chai & Anor 28 and not only refer to section 22(1)(c) in isolation. It defeats the
solemnisation procedure laid down in the LRA concerning a customary marriage, which
includes the submission of a statutory declaration to the Assistant Registrar of Marriages
and the involvement of the Assistant Registrar in the solemnisation process.

When the above matter went on appeal to the Court of Appeal,29 the Court of Appeal
upheld the High Court’s decision and dismissed the appellant’s appeal. First, the court
examined the main purpose of the LRA, that is, to prohibit polygamous marriage among
non-Muslims, which was made clear in section 5 of the LRA. In order to achieve this

27
Supra n 18
28
Supra n 20
29
Chai Siew Yin v. Leong Wee Shing [2004] 1 CLJ 752
16 Asia Law Review [Vol. 4, No.2 : ??~??

object, the LRA requires the registration of non-Muslim marriages. However, the LRA
does not declare as void any marriage contracted between non-Muslims in accordance
with the customary ceremonial rites of the community to which they belong. This has
been made abundantly clear by the Parliament in section 34.

Secondly, if Parliament intended to strike down a marriage for want of registration, it

should have stated so in very clear language to that effect in the Act as the result would
be to illegitimise the issue of non-registered customary marriages. This would produce a
harsh and unjust result.

It is submitted that the above decision by the Court of Appeal defeats the
solemnisation process under Part III concerning customary marriages. Section 5, as
mentioned earlier, clearly states that every marriage, taking place after 1 March 1982,
has to be solemnised under Part III. Part III includes section 25 which requires the entry
of the marriage solemnised in the marriage register. Therefore, if section 34 is upheld by
the courts, this would render section 25 otiose.

The above matter was then appealed to the Federal Court. The Federal Court30
unanimously overturned the decisions of the High Court and the Court of Appeal in this
matter. It held that customary marriages after 1 March 1982, which were not registered,
are not recognised under the law. According to Justice Pajan Singh, section 34 of the
LRA should be read in harmony with the other provision of the LRA, which
encapsulates the overall intention to “provide for monogamous marriages and the
solemnisation and registration of such marriages”. In his oral decision, his Lordship
stated that “we are not in agreement with the reasoning of the judgments both in the High
Court and the Court of Appeal.”

It is submitted that the Federal Court’s ruling in the above case conforms with the
intention of the drafters of the LRA as it recognises that registration of marriages was
one of the reasons for the enactment of the LRA, apart from providing for monogamous

30
Supra n 4
2007] The Dilemma As to Registration of Non-Muslim Customary Marriages in Malaysia: Finally Laid to Rest? 17

marriages and the solemnisation of such marriages. It is also convenient for the parties to
a customary marriage which has been registered when it comes to proving that their
marriage had taken place. All they have to produce as evidence is a copy of their
marriage certificate. They would be saved from going through the hassle experienced by
the parties to an unregistered customary marriage, as was discussed in the cases above.

At this juncture, the writer intends to refer to two articles written by Mr Balwant
Singh Sidhu31 and Ms Mariette Peters-Goh32 on the interpretation of section 34 of the
LRA. In the first article, Mr Balwant Singh states that section 34 has two possible
interpretations:

(i) The Act does not render valid any marriage which is otherwise invalid, merely by
reason of its having been registered;
(ii) The Act does not render invalid any marriage which is otherwise valid, merely by
reason of its not having been registered.

He further states that the second implication is the cause of the mischief, when
compared to the first:

“It is perfectly correct to say that a marriage may be valid even if it was not
registered under the Act, in certain situations. For example, if the marriage was
solemnised in a foreign jurisdiction in accordance with the laws of that country (but
not solemnised in our embassy in that country in accordance with section 26 of the
Act) and if the parties fail to register that foreign marriage within 6 months before the
nearest available Registrar overseas under section 31(1) of the Act; or where either or
both parties return to Malaysia within 6 months and fail to register the marriage here.
Such marriages would be recognised as valid, if valid according to the lex loci
celebrationis (the law of the place of celebration). Their non-registration under the
Act would not render them invalid. Section 34 would come to aid, in the interest of
the comity of nations.”

In the second article, Ms Mariette has submitted that the LRA (in particular section
34) is not a “handy statute” to be used whenever it is discovered that a marriage
31
Balwant Singh Sidhu, “Married or Not Married?-That Is The Question” [2002] 3 MLJ cxxix.
32
Mariette Peters-Goh, “Marriages Solmenised According To Custom – Are They Valid?” [2002] 2 CLJ
xxix
18 Asia Law Review [Vol. 4, No.2 : ??~??

solemnised according to custom was not registered according to the LRA. She further
submits that “marriage” referred to in section 34:

“…refers to a marriage solemnised according to custom prior to the appointed

date, thus emphasising the fact that the validity of such marriages is preserved. It is
this interpretation which is in harmony with ss. 3, 4 and 34 of the LRA. It is therefore
respectfully submitted that to construe s.34 as conferring validity to marriages
solemnised after the appointed date but not having been registered according to the
LRA may be to go against the very basis of what was intended by the lawmakers.”

IV. Conclusion

In conclusion, it is hoped that the Federal Court ruling in Chai Siew Yin v. Leong Wee
Shing has finally put to rest the dilemma as to registration of customary marriages after 1
March 1982. The cases that were discussed prior to the Federal Court ruling were
decisions of the High Court and the Court of Appeal. As the recent ruling was made by
the apex court in the country, it is hoped that if such a matter does arise again in the
future, the courts would comply with the above Federal Court ruling and not deviate
from it.

References

1. Mimi Kamariah Majid. 1999. Family Law in Malaysia. Kuala Lumpur. Malayan Law
Journal.

2. Balwant Singh Sidhu. 2002. “Married or Not Married?-That Is The Question”

Malayan Law Journal. Vol. 3. pp. cxxix - ccxl.

3. Mariette Peters-Goh. 2002. “Marriages Solemnised According To Custom – Are They

Valid?” Current Law Journal. Vol. 2. pp. xxix

4. Sridevi Thambapillay, 2005. “The Ruling in Chai Siew Yin v Leong Wee Shing and
its Effect on Marriage Registration”, IKIM Law Journal, Vol.9 No.1, Jan-Jun 2005,
Special Edition in Memory of the Late Professor Emeritus Ahmad Mohamed Ibrahim,
Institute of Islamic Understanding Malaysia. pp. 135-152.
2007] The Dilemma As to Registration of Non-Muslim Customary Marriages in Malaysia: Finally Laid to Rest? 19

5. Charanjeet Kaur, “Customary marriages after March 1982 not valid” published in The
Star (online) in January 2005.

6. Felix Lee, “Marriage, religion, customs and YOU” published in the Sunday Mail, 6
February 2000.

7. Carolyn Hong, “Coming to grips with new ruling on marriage registration”, published
in the New Sunday Times, 19 December 1999.