Opening Statement

Yang Arif, if it pleases the court, I am Vanieda Shoudy Moosom from Tetuan Hart & Co,
acting on behalf of the petitioner, Ryan Smith in this petition. Together representing with me
today will be my co-counsel, Nurhayati binti Ayob.

If it pleases this honourable court, Yang Arif, I shall be submitting on the relevant
documents, brief of facts of case and on the procedural requirements. My co-counsel will
continue with the submission of the grounds.

Yang Arif, today is the decided date for the hearing of the application of annulment
between the petitioner, Ryan Smith and the respondent, Jenny Kim. Yang Arif, both the
petitioner and respondent are Malaysian citizens, domiciled in Malaysia. Before we begin, I
would like to inform this honourable court that there are no other legal actions taken within the
Malaysia courts nor outside of Malaysia. Thus, this honourable court has the rightful jurisdiction
in hearing this case.

Yang arif, if the court does not have any further inquiries, I would like to briefly explain
the relevant documents. MUCH OBLIGED YANG ARIF

EXHIBITS

Yang Arif, I would like to direct the court’s attention to the Exhibits. Firstly, the exhibits
contain a certified true copy of the petitioner’s Identification Card which is marked as EXHIBIT
JL-1A, a certified true copy of the respondent’s Identification Card marked as EXHIBIT JL-1B,
a certified true copy of the Parties’ marriage registration marked as EXHIBIT JL-2, a certified
true copy of the petitioner’s electric bill which is marked as JL-3, a certified true copy of the
hospital medical report marked as EXHIBIT JL-4 and lastly, a certified true copy of a screenshot
conversation marked as EXHIBIT JL-5.

ENCLOSURES

Moving on, Yang Arif, I would like to direct the court’s attention to the Enclosures.
Enclosure 3 is the Affidavit in Support filed on 23rd of March 2020. Enclosure 4 is the Notice of
proceedings filed on 24th March 2020, Enclosure 5 is the Acknowledgement of Service filed on
25th of March 2020, and lastly Enclosure 6 is the Direction of trial filed on 7th April 2020.

Yang Arif, if the court does not have any further inquiries, I humbly request to proceed with the
brief of facts of the case.
Statement of facts

The petitioner Ryan Smith (NRIC: 851120-14-5477) and respondent Jennie Kim
(NRIC: 920823-10-5870) got married on 25 October 2019 at the National Registration
Department, Shah Alam with the address at Plaza Masalam,2, Jalan Tengku Ampuan Zabedah
E9, Section 9, 40100 Shah Alam Selangor. The marriage was witnessed by Kim Tan Fatt who is
the assistant registrar, proof of which can be found in EXHIBIT JL-2. The petitioner and
respondent had their first sexual intercourse on 26 October 2019 and the intercourse was
protected.

On 10 November 2019, Jenny suffered severe fever and often vomited. On the same date,
Ryan returned from Vietnam to prepare for their Chinese customary wedding ceremony. The
Chinese customary wedding ceremony took place on 15 November 2019. It was held at the
Grand Blue Wave Hotel addressed at Perbandaran Persiaran, Section 14, 40000 Shah Alam,
Selangor. The respondent moved into the petitioner’s home on 20 November 2019.

The following month, on 5 December 2019, Ryan and Jenny travelled to their
honeymoon destination which is Bali. During this time, both the petitioner and respondent had
performed sexual intercourse multiple times with each other.

On 14 January 2020, Ryan found a pregnancy test kit in Jenny’s drawer indicating that
Jenny is pregnant. He urged to bring Jenny to the clinic for confirmation. After being persuaded,
Jenny agreed to do a pregnancy check-up at UMRA Medical Center at No.14-18, 13/14
Volleyball Road, Section 13, 40100 Shah Alam, Selangor on 16 January 2020.

Dr Hanisyah Ahmad confirmed that Jenny’s pregnancy has entered 15 weeks. However, their
marriage barely entered 12 weeks. In fact, their first sexual intercourse was protected. A copy of
the medical report with regards to the respondent’s pregnancy is attached and marked as
EXHIBIT JL-4.

Ryan asked for Jenny’s explanation with regards to her pregnancy. They also had a
quarrel and Jenny claimed that the baby inside her womb is her legitimate child with Ryan.
Dissatisfied with Jenny, Ryan has decided to annul their marriage on the basis that Jenny’s
pregnancy term does not match their period of marriage.

Following that night, Ryan also found a text message from Jenny who informs Lauren
that the child in her womb was his. A copy of the smartphone’s screenshot showing the content
of the text message is provided for this petition, marked as EXHIBIT JL-5. Jenny eventually
admitted to Ryan that the child in her womb was not his.

The petitioner and defendant began to live separately from 25 January 2020 until 6 March
2020. They only met on 7 March 2020 to solve the problems that they are facing. On 16 March
2020, Ryan came to Tetuan Hart & Co for legal advice regarding the annulment of his marriage
with Jenny.

PROCEDURAL REQUIREMENTS

a)The petitioner fulfils all the procedural requirements. The solicitor, Nor Fadlina bt Mohd Lutfi
from Tetuan Hart & Co, on behalf of the petitioner commenced the proceeding by filing petition
at High Court of Malaya at Shah Alam as provided by Rule 7 of Divorce and Matrimonial
Proceedings Rules 1980 and fulfils the requirement of Rule 8 of Divorce and Matrimonial
Proceedings Rules 1980 as well. Rule 7 requires a petition for nullity to begin by using Form 2
and filing the cause paper as Enclosure 2. Rule 8 requires for the information required by the
petition form and also any other certain information such as whether or not there is any
continuing proceeding in any country outside Malaysia to be stated in the petition form. Aside
from stating the information on the petition form as required by Rule 7 and Rule 8, the petition
form has to be supported with exhibits and filed together with the petitioner’s affidavit in
support.

b)The petitioner filed a petition for a decree of nullity on the ground that the respondent was
pregnant with someone else other than the petitioner’s child at the time of their marriage. In
order to file a petition on this ground, a medical report has to be tendered in support of the
ground pursuant to Rule 26 of Divorce and Matrimonial Proceedings Rules 1980. The petitioner
has fulfilled this requirement when he tendered the respondent’s medical report stating her
condition marked as EXHIBIT JL-4.

c)A copy of the petition which was filed in court on 19th of March 2020 as required by Rule 10
(4) of Divorce and Matrimonial Proceedings Rules 1980 together with notice of proceedings and
acknowledgement of service has been served to the respondent on 24th of March 2020. A copy
of petition is considered served to the respondent upon the acknowledgement of service in Form
6 as Enclosure 5 is signed by the respondent or his solicitor on his behalf pursuant to Rule 12 (5)
(a)&(b) of Divorce and Matrimonial Proceedings Rules 1980. The acknowledgement of service
was signed on the 24th of March 2020 and returned to the court based on Rule 12(8). All the
cause papers and relevant documents are in order. Thus we humbly submit that the petitioner has
fulfilled the court procedural requirement.  

IF THE COURT HAS NO FURTHER QUESTION REGARDING THE PROCEDURAL

How to address the court

Nak mintak tunjuk exhibit:

-Yang Arif, may i direct the court to exhibit / present to the court exhibit…
Nak tunjuk apa dalam BOA:

-Yang Arif, may i assist/direct the court to the case of … in Tab C1, page 1, paragraph 1 of the
BOA where the court held that/emphasised that/the principle adduced that…

-/ may i humbly request the court to turn to Tab C1….

Court tanya tp nak cari jawapan:

-Yang Arif, may I have a moment please

Untuk tekankan a fact:

-Yang Arif, I would like to emphasise to this honourable court that the petitioner ….

-Yang Arif, I would like to point out that..

Nak kaitkan apa u cakap tadi and now:

-Yang Arif, as i have mentioned earlier in the first limb of my submission… //

-As i have mentioned beforehand…..

Nak move on dari point 1 ke point 2

-If there are no further questions/inquiries from this court, I humbly request to move on to my
second limb./ i would like to indulge into my second limb

Kalau tersalah cakap

-My apologies Yang Arif, it should be…

Kalau dah jawab soalan YA and nak continue

-If the matter is clarified, may i continue YA

Dah habis turn

-If there are no further questions from the court, my co counsel will continue to proceed with our
pleadings.

LAW ON THE ANNULMENT

Yang Arif, as it pleases the court, my name is Nurhayati binti Ayob as the second counsel acting
on behalf of my client, Ryan Smith. Before I proceed with submission, I would like to establish
whether the petitioner has the jurisdiction to bring the case in the court. Yang Arif I would like to
emphasize that the requirement of marriage is that the marriage must be either registered under
the Act or deemed to be registered under the same as stated under Section 67(a) LRA, the
marriage contracted under a law providing that marriage is monogamous as stated in Section
67(b) of LRA, if I may assist the court to BOA (PAGE 3 OF BOA). I also would like to point
out that the court may only make decree of nullity where both parties to marriage reside in
Malaysia as stated in the case of Yung Fui Phin v Lim Tow Siew [1996] 3 MLJ 479 (PAGE 7
OF BOA) where it stated that failure to prove any record of domicile in Malaysia is fatal to the
petition. However, in the present case, petitioner is originally domiciled in Malaysia with the
proof of electric bill under Exhibit JL-3 where it shows that petitioner is still acquiring property
at M4-2-246, Tingkat 2, Apartment Baiduri, 40000 Shah Alam Selangor Darul Ehsan.

This is also supported in the case of In Cheng Sun Chuen v Lee Chee Seng [1983] 2 MLJ 371
(PAGE 12 BOA) where grant a decree of nullity of a marriage cannot be granted unless both
parties to the marriage reside in Malaysia at the time when the proceedings were commenced. In
this present case, as shown in the facts of the case, the marriage of both the petitioner and the
respondent was registered in accordance with the Law Reform Marriage Act, or specifically
pursuant to Section 27 of the Act [page 2 BOA], the parties have registered registered their
marriage at the National Registration Department, Shah Alam with the address at Plaza
Masalam, 2, Jalan Tengku Ampuan Zabedah E 9 / E, Section 9, 40100 Shah Alam, Selangor on
October 25, 2019 (Friday). The copy of marriage register labelled as Exhibit (JL-2) is attached in
the petition for annulment to show that they have married in accordance with Section 27 of the
Act. As such, this satisfies the requirement of having the marriage registered under paragraph (a)
to Section 67 of the Act. Even when the respondent decided to part away from the petitioner, she
is still living within the jurisdiction of Malaysia. As such, this too satisfies the requirement of
residency, as required under paragraph (c) to Section 67 of the Act.

That being said, by virtue of Section 67 of the Act, we humbly submit that the court in this
present case does indeed have jurisdiction to entertain the matter, as the requirements of the
provision have been duly satisfied by the parties. Accordingly, the petitioner humbly seeks for
the relief from the court to make a decree of nullity to the existing marriage between the parties
on the ground that the respondent has at the time of the marriage been pregnant by some person
other than the petitioner, as stipulated under Section 70(f) of the Act.

if there are no further questions from the court, may I continue on my submission

Yang Arif I would like to emphasize that it is important to know that voidable is something that
is not absolutely void, but may be avoided. Thus, the marriage is still valid and subsisting until a
decree annulling has been pronounced. Yang Arif, note that there are six grounds upon which
marriage is voidable which are as follows:

a) The marriage has not been consummated owing to the incapacity of either part to
consummate it
 b) The marriage has not consummated owing to the wilful refusal of the respondent to
consummate it

c) Either party to marriage did not validly consent to it, whether as result of mistake, duress
of unsoundness of mind or otherwise

d) At the time of marriage, either party , though party capable giving a valid consent was
mentally disordered person considered unfit for the marriage

e) The respondent suffering from venereal disease

f) At the time of marriage, the respondent was pregnant by some other person

It is our respectful submission that the condition for voidable marriage under Section 70(f) of the
Law Reform (Marriage and Divorce) Act 1976 has been satisfied, that is the respondent is
pregnant with someone else’s baby at the time of the marriage. By virtue of Section 70(f) of the
Act [page 4 BOA], a marriage is voidable if at the time of the marriage, the respondent was
pregnant by some person other than the petitioner. 

It was established for the annulment of the marriage on the ground, inter alia, of her pregnancy
by some other man as stated in Stocker v Stocker, (page 19&20 BoA). Evidence was given by a
serologist who had genotyped the blood of the husband, the wife and the child, that the usual
tests did not exclude the husband as the father of the child but that he had used a haptoglobin test
which showed that the husband could not be the father.

In this present case, as shown in the facts of the case, they made a pregnancy check up at UMRA
Medical Center (Maternity) at No. 14-18, 13/14 Volleyball Road, Section 13, 40100 Shah Alam,
Selangor on January 16, 2020 (Thursday). The pregnancy checkup was performed by an
obstetrician and gynecologist doctor, Dr. Hanisyah Ahmad (770518-14-5624). The doctor
confirmed that Jenny's pregnancy has entered 15 weeks. The copy of the medical report is
attached in the annulment petition labelled as Exhibit (JL-4).

However, their marriage was only 12 weeks old. In fact, the first consummation was protected.
This shows that the baby that Jenny is bearing in her womb now was caused by a person other
than Ryan at the time of the marriage because the pregnancy was 15 weeks old while their
marriage was only 12 weeks old.

Apart from that, it is important to prove that no consummation had taken place after doubting the
legitimacy of the baby being born for the said petition of nullity to succeed. This is to avoid any
possible future acceptance of petitioner on his wife pregnancy as stated in the case of Smith v
Smith [1947] 2 All ER 471 [page 25 BOA] where Bucknill LJ stated; 
“In my view, the facts laid before this husband were such that any reasonable person would
have drawn the conclusion that his wife was pregnant at the date of the marriage by some
person other than himself. Having those facts in his mind, he chose to have intercourse with his
wife without asking her whether his suspicions were correct. By doing that, he has, I think,
put himself outside the relief given by section 71.”

The position of bars to relief in Malaysia could be seen in Section 71(1)(a), [page 5 - BOA]
where the court shall not grant a decree of nullity if the respondent satisfies the court that the
petitioner, with knowledge that it was open to him to have the marriage avoided, but still
conducted himself in relation to the respondent (for example intercourse) as to lead the
respondent reasonably to believe that he would not seek to do so.

It is also crucial that the petitioner, at the time of the marriage, was ignorant of the facts being
alleged. This could be seen under Section 71(2), [page 5 BOA] in which it states that the court
shall not grant a decree of nullity on the ground Section 70(f) unless it is satisfied that the
petitioner at the time of the marriage is ignorant of the facts alleged. Hence, not only is it
necessary to prove that the respondent was pregnant at the time of the marriage, it is also
important to note that the petitioner is oblivious to such facts.

It is reasonable for Ryan to not have noticed the changes in her physicals even during pregnancy
because Jenny is a plus sized woman.The fact that Ryan was shocked by Jenny’s pregnancy
shows that Ryan was totally ignorant of the fact that Jenny was already pregnant by some person
other than him. Ryan was also shown to have gone to the clinic to ascertain the identity and
status of the pregnancy.

In addition, it is our humble submission that the petitioner also did not consummate the marriage
even after finding out that the respondent has been pregnant by some other person which is
opposed to the case of Smith v Smith [page 25 BOA]. This can be seen from his decision to
leave the respondent on her own and claimed that he needed privacy and some time alone. The
petitioner also did not in any way accept the pregnancy of respondent as evident from the facts
the parties have immediately gone to the clinic to make a pregnancy test. Furthermore, after
finding out that the baby is not his, they were quarrelling over the matter and eventually went to
live separately. All these facts show that the petitioner is indeed unhappy and did not acquiesce
to the act of the respondent.. He has not accepted his wife’s pregnancy with someone else other
than him.

In conclusion, it is clear that such marriage is voidable under the ground of Section 70(f) of the
Act as the respondent was indeed pregnant by some person other than the petitioner.
Accordingly, we wish to submit that such marriage shall be annulled by the court. Lastly, we
further submit with respect to this Honourable Court that there are no bars to relief in this present
case.
PRAYERS

We humbly pray to this Honorable Court to declare:-

1. That the said marriage be annulled on the ground of Section 70(f) that at the time of
marriage, the respondent was pregnant by some other person other than the petitioner.

2. That the respondent may be ordered to pay the costs of this suit.

3. That the Court grant any appropriate ancillary claim to the petitioner that the Court deems
fit.

Much obliged.