civil-breach promise to marry

7/25/2019 civil-breach promise to marry

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MALAYSIA

IN THE HIGH COURT IN SABAH AND SARAWAK

AT KUCHING

CASE NO.: KCH-12B-26/11-2011

BETWEEN

Mr. B ... APPELLANT/

DEFENDANT

AND

Ms T ... RESPONDENT/

PLAINTIFF

.

JUDGMENT

Introduction

This is appeal by the defendant against the decision of the Sessions Court

Judge to grant judgment against him for breach of promise to marry. At the

material time, the defendant was 18 years old whereas the plaintiff was 17

years old. Thus, apart from the issue of whether the finding of breach of

promise to marry was justified, an issue of law relating to the age of the

defendant has also arisen in this appeal. For sake of convenience, I shall

refer to the parties by their original designation of plaintiff and defendant.

Case for the Plaintiff

The plaintiff is a young woman who is currently studying in the local

university at Kuching. The defendant is only one year older than her. He

too is currently pursuing tertiary studies. He is studying for a Diploma in a

local College in Kuching. They got acquainted with each other in 2005 at

the secondary school where they were both in Form One. However, they did


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not enter into a romantic relationship until their last year in school. In 2009,

they were in Form Five. In October of that year, the defendant made a

serious effort to befriend her. On the last day of the SPM examination on

15th

December 2009, the defendant asked the plaintiff to be his girlfriend.

The plaintiff agreed but she has some misgivings as she has heard rumours

of the plaintiffs romances with other girls in school. However, the

defendant assured her that he loved her and that she would be his last

girlfriend. Unsurprisingly, according to the plaintiff, he showered her with a

torrent of sweet words and text messages. Having been satisfied with this

assurance, the plaintiff and defendant started seeing each other frequently.

They exchanged SMS (text messages) everyday, sometimes as many as 50

to 100 messages a day. The plaintiff even referred to her as bao bei which

means treasured or precious. He also texted her to say that he would

marry her in the future. From April 2010 onwards, the defendant started to

implore the plaintiff to bring the relationship to a deeper level. However, the

defendant was afraid to commit the relationship any further as she wanted to

wait until marriage. She was also afraid that she would become pregnant.

However, the amorous eighteen-old defendants ardour was not cooled

easily. He sent text messages to her saying that he would marry her.

Finally, on Labour Day in 2010, the defendant brought the plaintiff back to

his house after an outing. He repeatedly assured her that he would marry her

and take responsibility for the consequences of a sexual relationship. The

plaintiff was convinced and surrendered her person to him. Thereafter the

young couple referred to each other as treasured husband, precious wife

and the like. The numerous text messages sent by the plaintiff were

exhibited in court. However, by middle of June 2010, the passion of the

defendant for the plaintiff abated significantly. He wanted to break up with


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her. The plaintiff was distraught to the point that she even failed to notice

that a drain was not covered and she fell into it. The defendant then resumed

his relationship with the plaintiff. However, the defendant was unable to

sustain the initial interest and zest for the plaintiff. He rarely sent text

messages or spoke to her. On occasions when they were together, he was

uncommunicative, distant and cold towards the plaintiff. He finally ended

the relationship on 9thOctober 2010. The plaintiffs family then brought the

plaintiff to the police station to lodge a report against the defendant. She

was also brought to the hospital for a medical examination. Nothing

happened in respect of the police report, presumably because the plaintiff

was already 17 years of age.

Case for the Defendant

The defendant did not deny that he has sexual relations with the plaintiff. In

fact, he agreed that they had sexual intercourse in May of 2010. However,

the defendant denied promising to marry her. He said that he only promised

her that she would not get pregnant. He said that he did not buy her anygifts to symbolize a special relationship. He said that he was very busy at

that time as he has failed two subjects in his college examinations. He was

under a lot of pressure and was, therefore, unable to give much attention to

the defendant. He said that he broke up with the plaintiff because her sister

meddled in their relationship and put him under pressure. However, the

defendant did not explain in his witness statement about the text messages

he sent to the plaintiff promising to marry her.

Issues

The learned Sessions Court Judge found as a fact that the defendant has

made a promise to marry the plaintiff. He accepted the evidence of the


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plaintiff and gave weight to the numerous expressions of love and

endearment in the text messages sent by the defendant to the plaintiff. I

quote from his judgment as follows:

In the instant case, it was adduced in evidence that the Defendant promised

to marry her. This evidence was supported from the sms-es as shown at

pages 1 to 35 of Exhibit P1 (Bundle B). The messages sent are self

explanatory and in the cross examination of the Defendant, the Defendant

admitted those SMS sent by the Defendant to the Plaintiff. To be more

specific, these are the sms-es to show that the Defendants promise to marry

the Plaintiff:

(i) at page 2 of Exhibit P1, in a SMS sent on 15.1.2010, the

Defendant wrote, the truth I really wanna marry u but not this

time la...;

(ii) At page 11 of Exhibit P1, in a SMS sent on 4.4.2010, again the

Defendant told the Plaintiff that he would marry her; not only see

ahtouch again le..wont la..den I do my thing..hahah..den marry

you.

(iii) In a SMS sent on 13.4.2010, the Defendant wrote, no. I

wannab be ur husband. (page 23 Exhibit-P1).

In a later part of the judgment, the learned Sessions Court also cited the

following text messages of the defendant:

1. On page 28 of EXHIBIT P1, SMS from the Defendant sent on

3.5.2010 which reads: of course i will be UR husband forever

2. On page 29 of EXHIBIT P1, the Plaintiff shows a SMS from the

Defendant sent on 13.5.2010 which reads: But my heart n mind

says we are married ady .


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3. At page 34 of EXHIBIT P1, the Plaintiff shows a SMS from the

Defendant sent on 6.6.2010 which reads: .I will wan to marry

u Oso.

Sexual relationship is not a necessary ingredient of a cause of action based

on breach of promise to marry. It may only be relevant in determining the

quantum of damages. However, the learned Sessions Court Judge accepted

the evidence of the plaintiff that the defendant has coaxed her into having a

sexual relationship by promising to marry her. The defendant himself did

not deny that he has sexual relations with the plaintiff although he denied

promising to marry her. After considering the testimony of the plaintiff, the

fact that the parties had a sexual relationship and the text messages of the

plaintiff, the learned Sessions Court Judge made a finding of fact that the

defendant promised to marry the plaintiff. I see no error in this finding. The

learned Sessions Court Judge saw and heard the plaintiff and the defendant

in the witness box. He also gave consideration to the text messages of the

defendant that corroborates the testimony of the plaintiff. In the premises,

without the advantages of the trial court that assessed the viva voce

evidence, the appellate court should be slow to disturb this finding of fact.

Since the counsel for defendant has not demonstrated in what manner the

trial court had failed to make use of those advantages or had otherwise made

a palpable error in analyzing the evidence, I should defer to its judgment that

the defendant has indeed promised to marry the plaintiff. I have not omitted

to consider the argument of counsel for defendant that there is no text

message from the plaintiff accepting the proposal of the defendant to marry

her. 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. If there is any doubt, she also stated in her


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witness statement that she was so distraught when he broke up with her that

she fell into a drain accidentally.

The second finding of the Sessions Court Judge was that the defendant has

terminated the relationship and, therefore, breached his promise to marry the

plaintiff. The defendant himself told the court that he has terminated the

relationship with the plaintiff. Thus the finding on this issue is virtually

unassailable. For the above reasons, in my opinion, the criticism of the

defendant in respect of the above findings of fact lack merit. I shall now

move on to consider the questions of law.

Whether the Defendant lacked capacity to enter into a contract to marry?

Counsel for defendant cited sections 10 and 12 of the Law Reform

(Marriage and Divorce) Act 1976 to argue that the defendant lacked

contractual capacity to promise marriage to the plaintiff. He also submitted

that the contract is void as it contravenes sections 10 and 12. With respect,

this argument is not valid for the following reasons. The Law Reform

(Marriage and Divorce) Act 1976 regulates the actual contract of marriage.

It does not regulate a contract to marryupon which the common law action

of breach of promise to marry is founded. In England, Law Reform

(Miscellaneous Provisions) Act 1970 has abolished actions for damages for

breach of promise of marriage. However, that has yet to happen in Malaysia

and thus courts are duty bound to apply the law as it is and not as it ought to

be and hear these actions. Section 10 provides that any contract of marriage

where the parties are under the age of 18 is void. However, in the case of a

female who is between the ages of 16 and 18, the Chief Minister may

authorize the marriage by grant of a special licence. In the case of persons

between the ages of 18 to 21, parental consent is a prerequisite. As I have


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said earlier, in the instant case, the cause of action is not based on the

contract of marriage itself. Therefore, the relevant question that arises is

whether the defendant has contractual capacity to make a promise to marry.

At the material time, the defendant was over the age of 18 which is the age

of majority in Malaysia. Thus, the defendant was of an age where he could

enter into a valid contract. Otherwise, this case should have been dismissed

at the outset in the Sessions Court. Counsel for defendant submitted that the

contract is illegal and unenforceable because the object of the contract is to

marry in contravention of the Law Reform (Marriage and Divorce) Act

1976. The reason given is that the defendant would require the consent of

his parents and that they did not even know of the couples relationship. In

my opinion, the argument that parental consent is required does not render

the contract to marry illegal. Only an actual contract of marriage between

persons who are between the ages of 18 and 21 without parental consent

would be illegal. For this reason the case of Maria Tunku Sabri v. Datuk

Wan Johani Wan Hussin[2011] 8 CLJ 859 cited by counsel for defendant is

not relevant. In that case the defendant had promised to marry a married

Muslim woman. Upon breach of this agreement, the defendant had entered

into a Settlement Agreement to provide relief to the plaintiff. The action of

the plaintiff to enforce this agreement was dismissed because it was held that

a married Muslim woman is barred by section 14(1) of Islamic Family Law

(Federal Territories) Act 1984 to marry another man. The agreement was also

based on the contingency that her husband would be agreeable to the divorce.

For the same reason, the Federal Court case of Sababumi (Sandakan) Sdn Bhd v

Datuk Yap Pak Leong[1998] 3 MLJ 151 is not relevant because in that case the

agreement in question was held to be illegal as it was prohibited by statute. In

the instant case, the object of the contract was to marry in the future. There is


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nothing illegal about the agreement to marry as the parties are not prevented by

law from marrying in the future. The age of the plaintiff is also not an issue.

An infant who is a victim of breach of promise to marry, can lawfully sue for

relief (seeMary Joseph Arokiasamyby her next friend S P Arokiasamy v G SSundram [1938] MLJ 4 ).

Whether Agreement was Uncertain?

Counsel for defendant submitted that the agreement was in the future and it is

therefore uncertain. He cited Section 33(1) of the Contracts Act 1950 which

reads as follows:

(1) Contingent contracts to do or not to do anything if an uncertain future

event happens cannot be enforced by law unless and until that event has

happened.

(2) If the event becomes impossible, such contracts become void.

ILLUSTRATIONS

(a) A makes a contract with B to buy Bs horse if A survives C. This contract

cannot be enforced by law unless and until C dies in As lifetime.

(b) A makes a contract with B to sell a horse to B at a specified price, if C, to

whom the horse has been offered, refuses to buy him. The contract cannot beenforced by law unless and until C refuses to buy the horse.

(c) A contracts to pay B a sum of money when B marries C. C dies without being

married to B. The contract becomes void.

Counsel for defendant also quoted the following answer of the plaintiff:

Q: Do you agree that the defendant had told you that he was studying and

not ready to get married?

A: Agree but promise to get married.

There is no merit in the argument of counsel for defendant. The promise to

marry was not hinged to an uncertain event as provided in section 33. It was

a simple promise to marry in the future. Section 47 reads as follows:


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Conclusion

I shall, therefore, dismiss the appeal with costs of RM2,000.

(RAVINTHRAN PARAMAGURU)

Judicial Commissioner

Date of Delivery of Judgment: 10.8.2012

Date of Hearing: 10.5.2012

For Appellant/Defendant: Mr. Roland ThomasMessrs Ariffin Shahzad Advocates

Kuching

For Respondent/Plaintiff: Mr. Alvin Yong Sze Lung

Messrs Chong Brothers AdvocatesKuching

Notice: This copy of the Court's Reasons for Judgment is subject to editorial

revision.

civil-breach promise to marry

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