[KCH-12B-26/11-2011]

MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KUCHING
CASE NO.: KCH-12B-26/11-2011

BETWEEN
Mr. B

...

APPELLANT/
DEFENDANT

...

RESPONDENT/
PLAINTIFF

AND

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Ms T
.

JUDGMENT
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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

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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

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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.
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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
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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

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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.

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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

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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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[KCH-12B-26/11-2011]

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
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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 9th October 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.

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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,

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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 any
gifts 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

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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

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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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[KCH-12B-26/11-2011]

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
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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

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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

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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).

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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
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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

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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

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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

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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

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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

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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
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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.

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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,

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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 marry upon 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
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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

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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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[KCH-12B-26/11-2011]

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
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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

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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

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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

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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

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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

[KCH-12B-26/11-2011]

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 (see Mary Joseph Arokiasamy by her next friend S P Arokiasamy v G S
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Sundram [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:

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(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

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(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 be
enforced by law unless and until C refuses to buy the horse.

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(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?
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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:

[KCH-12B-26/11-2011]
47. Time for performance of promise where no application is to be made
and no time is specified.
Where, by the contract, a promisor is to perform his promise without
application by the promisee, and no time for performance is specified, the
engagement must be performed within a reasonable time.

Explanation - The question "what is a reasonable time" is, in each

particular case, a question of fact.

However, by breaking off the relationship with the plaintiff, the defendant
has rendered that event unlikely. The fact that the parties did not fix a date
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to get married is therefore not relevant.

Damages
The learned Sessions Court Judge awarded a total of RM36,000 in damages.
In the memorandum of appeal, counsel for defendant challenged this award.
However, in the submissions, counsel for defendant has not directly

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addressed the appropriateness of this award. Instead he insinuated that the

plaintiff may not even have been a virgin prior to her relationship with the
defendant and that she may have had many sexual partners. This submission
is based purely on speculation. The learned Sessions Court Judge made a
finding of fact that the plaintiff has suffered anguish about the loss of her

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virginity to the defendant who jilted her after such a short time. I see no
reason to disturb his finding of fact. I also see no reason to disturb the award
of damages made by the Sessions Court Judge which seems reasonable to
me.

[KCH-12B-26/11-2011]

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 Thomas

Messrs Ariffin Shahzad Advocates
Kuching

For Respondent/Plaintiff:

Mr. Alvin Yong Sze Lung

Messrs Chong Brothers Advocates
Kuching

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Notice:

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

revision.
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