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HCMP 348/2008
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
MISCELLANEOUS PROCEEDINGS NO. 348 OF 2008
(ON AN INTENDED APPEAL FROM FCMC NO. 5488 OF 2006)
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| BETWEEN |
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HRT fka HS |
Petitioner |
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and |
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RHT |
Respondent |
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Before: Hon Tang VP and Cheung JA in Court
Date of Hearing: 3 April 2008
Date of Decision: 3 April 2008
Date of Reasons for Decision: 9 April 2008
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REASONS FOR DECISION
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Hon Tang VP (giving the reasons for decision of the Court):
1. This is the respondent’s application for leave to appeal.
2. The sole issue with which we are concerned is the validity of the marriage.
3. The couples were natives of Sindhi Province of what was formerly India, and which has become part of Pakistan. On 23 March 1960, the respondent and the petitioner went through a ceremonial ritual in Indonesia. The respondent accepted that the ceremony was in accordance with Sindhi Hindu customary ritual and that in terms of the Sindhi Hindu customary ritual it was a marriage. There is a marriage certificate dated 8 August 1960 issued by the Indian Association in Jakarta. The respondent contended, however, that it was not a valid marriage under Indonesian law because it was not registered, according to his expert in Indonesian law (Mr Augustinus), validity depended on the registration of the marriage. The petitioner’s expert took a different view.
4. The judge (HH Judge Melloy) after an 8-day trial and careful consideration of the evidence, preferred the evidence of the petitioner’s expert. She dealt with such evidence and the evidence of the relevant Indonesian law in paras. 30 to 42 of her judgment. We agree with her reasoning and will not repeat them.
5. Leave to appeal will normally be granted unless the appeal has no realistic prospect of success.
6. Judge Melloy refused leave because she was of the view that the appeal has no reasonable prospect of success.
7. We agreed and we have refused leave.
8. It is accepted that at the time of the ceremony in 1960, there was no facility for the registration of such a marriage. According to the learned judge, prior to Marriage Law 1/1974 (“the 1/1974 Law”), the marriage could not be registered. After the 1/1974 law, a similar marriage could be registered and unless registered would not be valid. So the question is whether the requirement for registration for such marriage introduced by the 1/1974 law meant that such marriage contracted prior to the 1/1974 law was invalid. As the learned judge said:
“42 Going forward all marriages performed after the enactment of the Marriage Law 1/1974 had to be registered. There was no requirement in 1960 for Foreign Orientals non-Chinese to register their marriage. No Civil Registries existed in 1960 for them to do so.”
9. Mr Coleman SC, who appeared with Mr Jeremy S K Chan, accepted that under the 1/1974 Law, a Sindhi Hindu customary marriage would be valid under Indonesian law provided it was registered, and there was machinery under the 1/1974 Law to enable such marriages to be registered. However, a similar marriage contracted prior to 1974 would not be regarded as a valid marriage because of the absence of machinery for registration.
10. According to Mr Augustinus, in 1960, the parties could have chosen to submit themselves to the European Civil Code, and if they had done so, they would have been able to undergo a marriage under European Civil Code and such marriage could have been registered under the European Civil Code. But because the parties had chosen not to submit to the European Civil Code, their Sindhi Hindu marriage, which could not be registered at the material time, was invalid. We are not surprised that Mr Augustinus’ evidence was rejected by the learned judge. We agree with her conclusion and reasons.
11. Mr Coleman also referred to the fact that the parties had each in ex parte proceedings in Indonesia obtained conflicting decisions on the validity of the marriage. He also pointed to the fact that the two eminent legal experts called on behalf of the parties took a different view on the validity of the marriage. Be that as it may, what we have to consider is whether the appeal has a reasonable prospect of success. We do not believe that it has a reasonable prospect of success, and that is why we have refused leave.
12. Mr Coleman further submitted that the learned judge has placed undue weight on the fact that a marriage certificate had been issued by the Indian Association. We are sure the learned judge had not mistaken the certificate as the allegedly required registration. She accepted the certificate as evidence of the marriage, and was right in doing so.
13. For the above reasons, we refused leave to appeal.
(Robert Tang)
Vice-President |
(Peter Cheung)
Justice of Appeal |
Mr Russell Coleman, SC and Mr Jeremy S. K. Chan, instructed by Messrs Stevenson, Wong & Co., for the Respondent.
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