Stumbled upon this interesting case (Case Number:
KCH-5 12B-26/11-2011) while scrolling through the case lists of the Kuching courthouse. It concerns the issue on the breach of promise to marry someone. Executive summary: yes, one can be sued for failing to marry another.
But first, a quick refresh on the court hierarchy system of Malaysia:
The case starts from Case Number
KCH-53-4-2011 in the Kuching Sessions Court, which ruled in favour of the female party, and was appealed by the male party in the
KCH-5 12B-26/11-2011 case, which was ultimately dismissed by the Kuching High Court.
It starts off with the male and female parties meeting in Kuching High in 2005 as secondary school students. In the final days of their Form 5 days the male party “made a serious effort to befriend” the female party. On the last day of the SPM examination (15 December 2009 apparently) the male party asked the female party to be her girlfriend. Despite “entertain[ing] some misgivings as she has heard
rumours of the plaintiff’s romances with other girls in school”, the male party assured the female party that he loves her and “did not want any other girls anymore”, and consented to being in a relationship with the male party.
In that time, both parties were really busy. Both parties “exchanged SMS (text messages) everyday, sometimes as many as 50 to 100 messages a day”. The original Sessions Court judgment refers to at least 35 pages of SMS’es in the Bundle of Evidence. Remember, this was in 2009 – 2010. Text communication applications over the internet like WhatsApp which allowed for virtually cost-free text communications were just in their infancy. Each SMS still cost money, and from (my failing) memory unlimited SMS plans were, and still are, a rarity in Malaysia.
The male party started to refer to the female party as “bao bei”, which the High Court appeal judgment helpfully translated it as “treasured or precious”. The messages sent from the male party, between January and April 2010, to the female party were quoted as being along the lines of:
• “the truth… I really wanna marry u… but not this time la...”
• “not only seen ah,,,touch again le..wont la..den I do my thing..hahah..den marry you”
• “no…. I wannab be ur husband….”
3.5 months into the relationship, the male party “started to implore the [female party] to bring the relationship to a deeper level”. In other words, he wanted to have sex with her lah people. And was desperate enough that he sent her SMS’es that he would be responsible if she got pregnant:
Lines 10 – 14, Page 4 of the Sessions Court judgement
No prizes for guessing what language they were in.
The female party was initially “afraid to commit the relationship any further as she wanted to wait until marriage”. The male party’s “amorous eighteen-old [..] ardour was not cooled easily”, and he consistently made representations “that he would marry her and take responsibility for the consequences of a sexual relationship”
Finally, on 1 May 2010, the female party, after being showered “with a torrent of “sweet words and text messages””, and “having in mind all the assurance of marriage and responsibility” imputed by the male party, “surrendered her person to him”.
And after the act of sexual intercourse, the male party continued to make representations of wanting to marry the female party, with SMS’es dated after the day where the 2 parties had sexual intercourse along the quoted as being along the lines of:
• “of course i‟ill be UR husband forever…”
• “But my heart n mind says we‟re married ady ….”
• “….I will wan to marry u Oso.”
It was these messages, sent by the male party to the female party, that the Sessions Court found as proof that the male party had the intention to marry the female party. And thus poof! It
became koko krunch was held that a promise to marry had been established.
By mid-June 2010 however, barely 6 months into the relationship, “the passion of the [male party] for the [female party] abated significantly”. On “occasions when they were together, he was uncommunicative, distant and cold towards the [the female party]”. The male party then communicated his intention to break up with the female party, causing the female party so much distress “that she even failed to notice that a drain was not covered and she fell into it”.
Given how rampant metal theft is in Malaysia I’m not surprised that can happen.
The relationship barely lasted a year!
With the relationship irretrievably broken down, the female party then initiated legal proceedings against the male party for a breach of a promise to marry.
There is no specific legislation that deals with a promise to marry and breaching the promise in Malaysia. The legislation dealing with non-Muslim marriages in Malaysia, the helpfully titled
Law Reform (Marriage and Divorce) Act 1976, only deals with parties after they have been legally married. While the original Sessions Court judge quotes Vazeer Alam Mydin Meera JC in the case of
RS Thanalachimi v Sundararaju Mattaya [2011] 7 CLJ 197 saying that “[t]here is a dearth of reported cases in Malaysia on breach of promise to marry”, it goes on to quote no less than 4 UK cases (one as recent as 1949) and 3 Malaysian cases dealing with the breach of a promise to marry.
Sure, it is hardly s302 of the Penal Code where is there no lack of cases to refer to (and that’s just looking at their Malaysian application), but a breach of promise of marry is still alive and kicking in Malaysia, with cases as recent as 2011 (and not this case we’re talking about either!).
In the judgement, the male party was admonished by the original sessions court judge for a late reply, and with a weak defence to the original writ issued by the female party.
Defence point 1: That the male party was under a lot of pressure from his studies
The undisputed fact was at the time of the case, the male party was a Diploma in Culinary Arts student at SATT College Kuching. The male party pleaded that he was under a lot of pressure from studies, having failed two of his subjects, and therefore “unable to give much attention” to the female party.
This was considered “a mere denial and lame excuse” by the original Sessions Court judge. Under cross examination, the male party admitted to having a new girlfriend, by the name of either Vory Bibi (at page 8 of the original Sessions Court judgement), or Borry Bibi (at page 9 of the original Sessions Court judgement), depending on which page of the original Sessions Court judgement you read. The argument was, if the stress of studying was the factor in the breakup, why would the male party be in another relationship with another person?
Defence point 2: That the sister of the female party “meddled in their relationship and put him under pressure”
Given the nature of the English language it is not known whether it was the older or younger sister of the female party that is being referred to.
This wasn’t so much as a defence as a statement. No evidence other than the point was tendered to the court regarding how the sister of the female party “meddled in their relationship”, nor was sister of the female party ever called as a witness, either at the original Sessions Court trial or the High Court appeal.
Defence point 3: Sections 10 and 12 of the Law Reform (Marriage and Divorce) Act 1976
The male party cited s10, which deals with void marriages because a party is under the age of 18 years, and s12 deals with the level of consent required for marriage, to argue that he lacked contractual capacity to promise marriage to the female party.
This was rejected by the courts, as the 2 sections deal with the actual contract of marriage itself. The issue at hand was the promise to consider entering into a contract of marriage, not the contract of marriage itself.
This defence was raised again in the High Court appeal, along with 2 other cases, which were rejected again. Being 18 years of age, the male party had all the requisite legal personality to both promise entering into a contract of marriage, and enter into a contract of marriage itself.
(Technically, being under the age of 21 at the time, he would have required parental permission to marry, however the issue here wasn’t so much that his parents withheld parental permission as whether he had the capacity to promise entering into a contract which required parental permission)
It says a lot about Malaysia, where at 18 one is able to sign one’s life away, but can’t participate in democratic discourse until 21. I suppose the cynical side of it is that one can sign away their future first before electing people that would sign away their future.
Defence point 4: Lack of acceptance by the female party
Personally this is the most controversial part of the judgement IMO. The argument was that there was no tendered evidence to the court showing while the male party had made many imputations on wanting to marry the female party, “there is no text message from the [female party] accepting the proposal of the [male party] to marry her”. I think a verbatim quote from the judgement is in order here:
In my opinion, from the conduct of the plaintiff in yielding her virginity to the defendant and referring to him as the “treasured husband”, she has obviously accepted his proposal.
[….]
[The] Sessions Court Judge was [of the finding] that the defendant has terminated the relationship and, therefore, breached his promise to marry the plaintiff.
Personally that is a long bow to draw, in that when the female party yields her virginity to a male who says he wants to marry her, that it is acceptance of a proposal to be married. While the original trial judge did touch briefly on the historical, societal, religious, and cultural background of a woman’s virginity, it is questionable if the appeal judge should have taken it into consideration.
In the end, the original judge awarded RM36,000 in damages to the female party, for breach of promise to marry and “loss of honour and reputation”.
My take
Honestly, as I did an initial read on this case, my first reaction was “Whose rich ojou-sama daughter is this?”. And as I reached the end, seeing that the female party had engaged Messrs Chong (yes, that
Chong family of lawyers) to represent her, I could only shake my head and wonder how much of the RM36,000 would actually be paid out, and after the legal fees of representation and responding to the appeal, how much of the money would be actually left.
It spurred me to have a look into this, and it seems to be not just a real thing, as least in the Common Law world, but also how recent that other jurisdictions have repealed the concept of a Breach of promise to marry.
Australia only abolished it in 1976 . In the UK the Law Reform (Miscellaneous Provisions) Act 1970 has abolished actions for damages for breach of promise of marriage. It seems to still be alive and kicking in some US states (why am I not surprised).
And it is equally applicable to Muslim’s in Malaysia. The case of
Maria Tunku Sabri V Datuk Wan Johani Wan Hussin [2012] 7 MLJ 419 is a recent high profile case (well, if your source of news is Harian Metro I suppose).
What got me was that the thoughtless mumblings of a young adult over SMS could actually constitute an intention to promise marriage to someone. No exchange of rings, no expensive gifts, no
setting up of complicated family trusts for your mistress to start a new life with her.
The fact that contracts can be oral is drummed into all 1st semester law students doing Contract Law. It isn’t often people think about the implications that their words uttered in the passion off courtship.
But then again Malaysia is a land where
divorce via SMS does happen, so I suppose I shouldn’t be too surprised that being able to sue for failing to marry is actually a thing………..
https://twitter.com/cowboybibimbop/status/582436184669863936
