Judicial Commissioner K Raja Segaran ruled that the petitioner husband had failed to prove that the absence of sexual relations in the marriage was caused by the wife’s wilful refusal, as required under Section 70(b) of the Law Reform (Marriage and Divorce) Act 1976.
“A decree of nullity is not granted by agreement but only if the court is satisfied that the statutory ground has been proved,” he said in a written judgment.
The court found that the petitioner’s case rested almost entirely on bare assertions in affidavit form, without supporting factual detail.
“There is no evidence beyond affidavit assertion identifying what efforts, if any, were made to consummate the marriage, what opportunity existed in the relevant sense, what specific conduct constituted refusal, or what surrounding facts justify the inference of a settled and definite refusal by the respondent,” said Raja Segaran.
The judge emphasised that the legal threshold under Section 70(b) requires proof of the reason behind non-consummation of the marriage.
“The statute requires proof of a specific cause. Non-consummation alone is insufficient,” he said.
The wife did not contest the petition and filed an affidavit indicating that she had no objection to the annulment.
However, the court said that consent did not reduce the burden placed on the parties by law.
“A decree of nullity cannot be granted solely on consent without strict proof of the statutory ground,” said Raja Segaran.
He said a matrimonial status was not a private matter that can be altered by agreement, but a legal status governed strictly by statute.
The court also issued a broader warning against the misuse of nullity proceedings.
Raja Segaran observed that the facts of the case pointed to a short and unsuccessful marriage rather than one affected by a legal defect recognised by law.
“If non-consummation coupled with agreement were sufficient, the nullity jurisdiction would be reduced to a mechanism for consensual dissolution outside the statutory safeguards,” he said.
Such an approach, he cautioned, would undermine the legislative framework governing marriage and divorce.
Raja Segaran dismissed the case without prejudice to the parties’ right to pursue a fresh petition for divorce on grounds available to them under the law.
The facts of the case revealed that the couple registered their marriage on May 22 last year at the national registration department in Petaling, Selangor.
The material allegation made was that the marriage was not consummated due to a deliberate refusal on the wife’s part.
The petition added that the parties lived in their respective homes in Masai, Johor, and that quarrels frequently occurred with the wife often at variance with the husband. It alleged there was no mutual understanding between them.
In January after a quarrel, the husband stated that he no longer intended to continue with the marriage.
On Feb 26, the husband affirmed his affidavit, while the wife filed an affidavit of consent early last month.