[go: up one dir, main page]
Scribd
Upload
912 views1 page

Case Review of RE CHS 2001

The case RE CHS [1997] 3 MLJ 152 was decided by the High Court of Malaya Kuala Lumpur. The issues in the case were whether it was impracticable to obtain consent from the father of a minor for marriage, if the applicant had the legal right to give consent, and if the court had jurisdiction to give consent. The court held that while the mother could consent if the father was dead, the father here was only unavailable, not dead, so the mother was not the proper person to consent. It was impracticable to obtain the father's consent, so the proper procedure was for the applicant to request the court directly for its consent.

Uploaded by

Jane Koay
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
912 views1 page

Case Review of RE CHS 2001

The case RE CHS [1997] 3 MLJ 152 was decided by the High Court of Malaya Kuala Lumpur. The issues in the case were whether it was impracticable to obtain consent from the father of a minor for marriage, if the applicant had the legal right to give consent, and if the court had jurisdiction to give consent. The court held that while the mother could consent if the father was dead, the father here was only unavailable, not dead, so the mother was not the proper person to consent. It was impracticable to obtain the father's consent, so the proper procedure was for the applicant to request the court directly for its consent.

Uploaded by

Jane Koay
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as DOCX, PDF, TXT or read online on Scribd
You are on page 1/ 1

The name and citation of the case:

RE CHS [1997] 3 MLJ 152

The Court which decided the case:

High Court of Malaya Kuala Lumpur

Issues of the case:

1. Whether it is impracticable to obtain the consent of the father?

2. The applicant has the legal right to give the consent?

3. Whether the court has the jurisdiction to give the consent under section 12 of Law Reform
(Marriage and Divorce) Act 1976?

Ratio decidendi of the case:

According to section 12(1)(a), the person who can lawfully give the consent to a marriage of a
minor is the father of the minor. However, if the father of the minor is dead, the mother will
have the right to give the consent to the marriage as provided under section 12(1)(b) of LRA
1976. Hence, the legal right of the mother to give the consent arises only when the father is
dead and not on any other ground based on the two sections. In this case, as the father is not
dead but merely disappear, the applicant who is the mother of the minor is not the proper
person to give the consent.

Section 12(2)(c) confers and authorizes the court to give consent where it is impracticable to
obtain such consent. The word “impracticable” is defined the Concise oxford dictionary 9th
edition as “impossible in practice”. While the Black’s Law Dictionary, 6h edition states that
although impossibility or impracticability of performance may arise in many various ways, the
tendency has been to classify the cases into several categories as follows: destruction,
deterioration or unavailability of the subject matter or the tangible means of performance.
Based on the facts of the case, it is apparently shows that it is impracticable to gain the consent
of the father as he is not available. Therefore, the applicant should follow the proper procedure
in order to apply for an order which enable the court to give the required consent.

Decision of the court:

The court held that it is impracticable to get the consent from the father as he is not
unavailable. The legal right of the mother to give consent arises only when the father is dead.
Therefore, the applicant is not the proper person to give the consent as the father in this case is
not dead yet. Consequently, the proper procedure to be followed is for the applicant to apply
for an order to enable the court to give the required consent.

You might also like