Family Law Notes PDF

TOPIC 1 : BETROTHAL years later. She sued for breach of promise. VALID BETROTHAL ○ Held: promise was illegal d...

TOPIC 1 : BETROTHAL years later. She sued for breach of promise. VALID BETROTHAL ○ Held: promise was illegal due to the incapacity of the defendant. The 1) Offer contract was against public policy and morals. Followed by Wilson v. Carnley Can comes from anyone. (non-muslim) 1 K.B. 729. ○ The case of Spiers v Hunt is no longer 2) Acceptance a binding authority in Malaysia. 3) Consideration Lau Pin Sien v Kong Chung Sng (2015) MLJU 35 Harvey v Johnston (1848) ○ The Df made promise to marry to ○ Df promised to marry Pf within married women lives separately dgn reasonable time after she arrive at husband dia. Df swore to marry Pf Lisahoppin for purpose of marrying the once her husband die. Df. she went to Lisahoppin as ○ Pf spent alot on Df, engagement requested but the Df failed to carry his ceremony, travel overseas & taking promise. She sued him for breach of marriage photographs. After laki mati, promise to marry. Df objected on Df tk jadi kahwin w/ her. ground that theres no sufficient ○ Held : theres high consideration byPf & consideration. Df took advantage of it by profiting over ○ Held : there was perfectly good illegality & contrary to public policy. Pf consideration. is given damages based on her losses. Foo Lai Sin v Wong Lee Hong (2017) MLJU 2063 ii. Religion of one/both parties doesnt prevent ○ Pf & Df, who met through a dating them from marrying agency in 2011, bought a house together in Shah Alam for RM1.4 Mary Joseph Arokiasamy v. Sundram million. The plaintiff later transferred his M.L.J. 4. half of the property to the defendant ○ No religious impediment against a without payment, as a gift to Hindu man marrying a Christian girl. compensate for breaking his promise ○ Age :- Section 10 of the LRA, the to marry her. minimum age of marriage for girls are ○ Pf got new gf & breached promise to 16 years (after the solemnisation of marry.. marriage was authorised by the Chief ○ The court ruled that this transfer was Minister) and 18 years for boys. fair compensation. iii. Age 4) Capacity Fernandes v. Gonsalves A.I.R 1925 Bom 97 i. Parties shouldn’t be in prohibited ○ The court in this case acknowledged relationships, they should be single masa that in India, a contract to marry was promise made. normally entered upon between minor parties, or by minor and an adult. Spiers v. Hunt 1 K.B. 720 Therefore, the court held that it could ○ The defendant, aged 70, had promised not be said that the Indian Parliament the plaintiff, aged 31, to marry her upon had not intended to provide remedies the death of his wife (heart ailment). for minors in the event of a breach and The plaintiff knew that the defendant awarded damages for breach of was a married man. The defendant contract to marry between the parties. then refused to marry the plaintiff after  KimjiKuverji v. Lalji Karamsi AIR 1941 Bom 129. ○ The Indian High Court held that a minor may enter into a valid contract to marry. Rajeswary & Anor v Balakrishnan & Ors 1958 ○ Pf, a girl entered into contract to marry when shes a minor. Df breached contract & Pf sued him for damages. ○ Held : minor can enter into contract for marriage. But the decision should be accordance to the amended Malaysian law.  CONSEQUENCES OF BREACH BETROTHAL 1) Damages a. General Damages Dennis v. Senayah M.L.J. 95. ○ Plaintiff alleged that as the result of the breach, she had to endure humiliation and mental anguish. She had incurred expenses to the amount of RM 870.10 and wished to claim both general and special damages. ○ Held: no aggravating circumstances such as an allegation of seduction. There was naturally mental anguish and humiliation. On the plaintiff’s future prospects for marriage, he found her to be young and her prospects not marred as such. He also considered her father’s standing in the community. General damages amounting to RM 1,500 were awarded. Berry v Dacosta ○ the defendant, described as “a gentleman of considerable fortune”, had persuaded the plaintiff to leave home and live with him prior to the expected marriage, but subsequently “the plaintiff was cast off, and the defendant married another woman”. ○ Court Held: The judge awarded $2500 damages including compensation for the degradation and misery caused to the plaintiff b. Special damages. Dennis v. Senayah M.L.J. 95. ○ In this case, the action for breach of promise to marry was successful, and the court awarded special damages for food items, saris, and costs of wedding preparations, totaling RM 620.10. 2) Return of Gifts Cohen v Stellar ○ Man whos awarded damages for breach of betrothal claimed return of ring. ○ If man didnt carry his promise to marry, he cannot demand the ring back. ○ If woman received ring refuse to fulfil conditions of the rings, the must return the ring back.  EXCEPTIONS 3) When man permitted to have plurality of wives by his personal law Ni for Pf nak sue & kene prove yg shes innocent (doesnt know that Df is married). If she failed to Nafsiah v. Abdul Majid No 2) 2 M.L.J. prove, she cannot sue for breach of betrothal to Df. 175. ○ Pf sue for breach of betrothal. Parties are 1) Pf doesnt know Df married when promised made muslims. Df attempted to rely on gen rule of law abt betrothal is void if woman knows Shaw v. Shaw and Anor 2 Q.B. 429 hes married. (C.A) ○ HC rejects the Df argument bcs his religion ○ In this case, Mr. Shaw represented himself allows him to marry more than one. So tkde to be a widower and went through a masalah, Since theyre muslims, they marriage ceremony with the plaintiff, a cannot go by civil laws as civil courts widow in 1937. They lived together as man doesnt have jurisdiction to hear muslim and wife. The real Mrs. Shaw was alive all cases. the while until she died in 1950. In 1952, the plaintiff subsequently discovered that she was all along not legally married to Mr. DEFENCES FOR BETROTHAL Shaw. She sued the administrators of Mr. Shaw’s estate for damages for breach of 1) Religion contract to marry by the deceased. The court held that she was entitled to damages 2) Non-disclosure of Facts as the deceased breached the contract to marry. 3) Misrepresentaion ○ On a promise to marry during the period of decree nisi, as in this case, in majority of Wharton v. Lewis (1824) 1 C & P 529. cases, no reconciliation was proven to have ○ Defendant broke promise. Before the taken place. engagement, the plaintiff’s brother had informed the defendant that her father 2) Promise made during decree nisi would leave property to her upon his death. As it turned out, the father had a Fender v St John-Mildway A.C.1. short time before, paid off his creditors. ○ The defendant’s wife had already obtained The other point was in relation to the a decree of nisi of divorce on the grounds of plaintiff’s past when she was at Oxford. the defendant’s adultery with the plaintiff at The defendant had broken off the the time when the defendant had promised courtship when he received information to marry the plaintiff upon a date after the concerning the questionable life the decree had become absolute. The plaintiff had been leading in Oxford. defendant broke off the engagement. ○ Held: Misrepresentation did not occur as Subsequently, he married another woman he was not induced by the promise. and the plaintiff sued him for breach of Defense failed. promise. ○ The court held that although such promise 4) Mental/Infirmity/Physical to marry may prevent reconciliation, in large number of cases, when a petitioner had Jefferson v. Paskell 1 K.B. 57 (C.A). advanced so far as a decree nisi, no ○ In this case, the plaintiff contracted a reconciliation could take place. The House disease of chest soon after her of Lords by a majority decision awarded the engagement. She thought it was a mere plaintiff damages for breach of promise to chill, but the doctor diagnosed marry. When a man is permitted to have a tuberculosis. In any case, she was not purity of wives by his personal law. ready and was unfit for marriage on the day fixed for the wedding. She underwent treatment but the defendant refused to marry her though she was given a clean  bill of health less than six months thereafter. However, it turned out that the plaintiff’s illness was not tuberculosis. In this case, the court granted damages to the plaintiff as the defendant failed to prove that he honestly and reasonably believed the plaintiff to be unfit for marriage. ○ The defendant’s own mental or physical infirmity is not a defence. Hall v. Wright (1859) EB & E 765; [1843-60] All E.R. Rep. 734. ○ In this case, the defendant had pleaded his own supervening ill-health, that is a serious disease occasioning bleeding from the lungs from which he was still suffering and alleged that he had been warned that the excitement of marriage would endanger his life. The court held that the defendant’s own mental or physical infirmity is not a defence in an action of breach of promise to marry. 5) Not uberrimae fidae Beachey v. Brown (1860) E.B. & E 796, E.R. Rep. 506. ○ Agreement to marry another before approached by defendant was the cause of the breach: rejected by court. ○ Cockburn CJ whilst agreeing that there are many things that a man may want to know about the woman he is to marry, such as her temper, her disposition, or her financial situation, felt that the discovery of such attributes should not entitle the defendant to refuse to fulfil his engagement. ○ HELD: If a woman is of unchaste conduct, which goes to the very root of the contract of marriage, there, from the excess and necessity of the case, the man is released from his contract. ○ The plaintiff’s own moral, physical or mental infirmity which render the plaintiff unfit for the marriage. The infirmity was discovered either after the engagement contract had been made or that the infirmity had only begun to develop after the making of the contract.  TOPIC 2 : DOMICILE & RESIDENCE ○ He returned to Kuala Lumpur once or twice a week but subsequently took a mistress and 1) Domicile of Origin lived with her in Singapore until he ceased to return to Kuala Lumpur when his wife knew Kanmani v. Sundarampillai M.L.J. 172. of their relationships. ○ The respondent husband had nominated ○ The petitioner became a permanent resident Kuala Lumpur as the place of payment under of Singapore and was issued a blue identity his insurance policies and intended his card. He resigned from the Royal Selangor children to be educated in Malaya and had Golf Club and from the Selangor Club at no intention of taking them with him to Kuala Lumpur and became a member of the Ceylon, his domicile of origin. Singapore Island Country Club and the ○ He was closely associated with a temple in American Club in Singapore. The court held Sentul and had expressed an intention to that the petitioner has acquired the domicile devote his life to it. of choice in Singapore. ○ However, he had not attempted to secure a permanent dwelling in Malaya and had made Melvin Lee Campbell v. Amy Anak Edward no attempt to take out Federal citizenship Sumek 2 M.L.J. 338. and, as a result, his domicile is still Ceylon ○ Although the petitioner expressed the feeling and the respondent’s domicile is that of her that Malaysia would be a place he would husband, i.e. Ceylon. make his home, the court considered other relevant factors in deciding his domicile i.e. 2) Domicile of Choice the fact that the petitioner has not brought for himself any property or made any actual Udny v. Udny (1869) L.R. 1 Sc & Div 441 investment in Malaysia and was employed in ○ The court held that selling off the house and Indonesia after being a managing pilot in its furniture indicates Udny’s intention to Kuching. terminate the domicile of choice. As a result, ○ The court held that he had not been the law applicable to him is his domicile of successful in proving that he acquired the origin. domicile of choice, though he has taken steps to explore the possibility of investing in Shaik Abdul Latif v. Shaik Elias Bus 1 Malaysia and married a native of Sarawak F.M.S.L.R. 204. and arranged for the child of the marriage to ○ The deceased had a domicile of origin in reside and be educated in Sarawak. Hong Kong. He moved from Hong Kong to Singapore and subsequently to Kuala 3) Domicile of Dependence Lumpur, where he lived for 19 years until his death. While in Selangor, he amassed Ang Geck Choo v. Wong Tiew Yong 3 wealth, built a home for his family and M.L.J. 467 regarded Selangor as his place of residence. ○ The petitioner was originally domiciled in Since he has no other house either in Hong Singapore, but according to the law of Kong or any where else and he never domicile applicable in Malaysia, her domicile returned Hong Kong and his two Chinese changed to that of Malaysia upon her wives, had embraced Islam and never visited marriage to her Malaysian husband. China, the court held that he had acquired the domicile of choice in Selangor. 4) Matrimonial Domicile Joseph Wong Phui Lun v. Yeoh Loon Goit Radwan v Radwan 3 All E.R. 1026. 1 M.L.J. 236. (singapore court) ○ Although the wife’s domicile of origin was ○ Although the petitioner was still a Malaysian English, the marriage was valid since her citizen, he had declared upon oath that he capacity to enter into a polygamous union contemplated applying for Singapore was governed by the law of Egypt where, citizenship as soon as he qualified for the before their marriage, the parties had minimum qualification of ten years. decided to set up their matrimonial residence and where polygamy was practiced.  RESIDENCE Fox v. Strik & Anor 3 All E.R 7 ○ Residence has been defined by the court as physical presence and an intention to remain in the same place for a sufficiently long period to make that presence more than fleeting or transitor. There is no need to own property in a place to be capable of residing there. Levene v. Commissioners of Inland Revenue A.C. 217 (H.L) ○ The judge applied the definition from the Shorter Oxford English Dictionary: to have one’s usual dwelling-place or abode; to reside. Mahon v. Mahon 2 M.L.J. 266. ○ The parties to the marriage since their marriage in 1955 has for the past 15 years had their matrimonial home in the Federation. The petitioner had been ordinarily resident in the Federation since 1955 though the petitioner has been away in Ireland during the 15 months of the three years immediately preceding the filing of the petition. TPC v. ABU & Anor 2 M.L.J. 79. ○ The court held that the word residence has no technical meaning. Therefore, it should be construed in accordance with the object and intent of the statute in which it occurs. Inland Revenue Commissioners v. Lysaght A.C. 234 (H.L) ○ The court held that the issue of ordinary resident is a question of fact  TOPIC 3 : MARRIAGE WAYS OF MARRIAGE REQUIREMENT SOLEMNIZATION OF MARRIAGE 1) Age 1) after the issue of a certificate for marriage by the 2) Consent of parent/guardian - S.12(1)-(6) LRA Registrar; sections 14, 15, 16, 17, 18, 19, 20, 3) Not within prohibited relationships 22, 23. 4) Monogamous marriage - S.5 LRA 2) after the issue of a license by the Chief Minister; sections 21, 22(1). Avoidance of marriage by prior subsisting 3) in a church, temple or at any place of marriage marriage in accordance with the religion, custom or usage of the parties; sections 22(2), 22(3), 28(3), 24. Nancy Kual v Ho Than On 4) in Malaysian embassies or consulates abroad. - ○ The plaintiff sought a declaration that she was sections 28(4), 26. the legal wife of the defendant and that the native customary marriage entered into between them was valid and subsisting in law. PROCEDURE & FORMALITIES The plaintiff, a native of Sabah and the defendant, a Chinese, underwent a tea 1) Registrations (sections 52, 27, 30, 31, 31(3)) ceremony to celebrate their marriage 2) Subsisting marriages (sections 33(1)-(3), 34) according to Chinese customs. They 3) Registration of Marriages Ordinance 1952 underwent another celebration of their Application: to Muslims of Sabah and Sarawak, marriage, this time according to the customs natives of Sabah and Sarawak who do not of the Kadazan Tatana. The plaintiff and the elect to marry under the LRA, or the Christian defendant continued to cohabit until they Marriage Ordinance of Sabah or the Church experienced domestic problems. The and Civil Marriage Ordinance of Sarawak and defendant then left the matrimonial home. aborigines of West Malaysia. What followed were meetings between the plaintiff and the defendant with the native court. At one meeting, the defendant, on being shown photographs of the marriage, responded that the marriage was a mere ‘act’. ○ Held: Reading Sec. 5(4) together with Sec. 3(1), a marriage solemnized under native customary law and not registered under the LRA between a non-native (the defendant) and a native (the plaintiff) is valid under Sec. 3(4). The court granted the declaration in view of discouraging any party from treating weddings and marriage rituals lightly. Although one of the parties is a non-native, the marriage which both parties went through, according to the Kadazan Tatana custom, is to be recognized as valid as it was contracted in a form required or permitted by the law of the country that is according to the native customary law in Sabah. Thus, the defendant should not be allowed to retract from the marriage. 5) Consent of parties  Conflict of Provisions of Registration of Marriage Section 5(4): After the appointed date, no marriage under any law, religion, custom or usage may be solemnised except as provided in Part III. Section 34: Neither the registration of nor the omission to register any marriage shall affect the validity of the marriage nor shall any error in the particulars recorded nor any omission to record any particular, which ought to have been recorded affect the validity of the registration of the marriage. CASES ON CONFLICT REQUIREMENT REGISTRATION OF MARRIAGE Yeoh v Chew 4 MLJ 373. ○ invalidity of marriage does not hinder a child to be legitimate as the couples reasonably believe that there was valid marriage. In this case, the marriage was solemnized according to the Chinese customary marriage after coming into force of the LRA. Joremi Kimin & Anor v Tan Sai Hong 1 MLJ 268 ○ It was held that where the same question came up involving a Chinese customary marriage. The court held that section 7(2) of the Civil Law Act, merely states inter alia, that an action under section 7(1) of the Act may be brought for the benefit of a wife of a deceased. The section does not seek to differentiate nor make any distinction between a lawful and unlawful wife. Section 2 of the Income Tax Act, 1967however defines a ‘wife’, as being a woman who is regarded by any law or custom, as the wife of a man. On the facts, the plaintiff admitted that she and the deceased went through a Chinese customary marriage which was never registered and the plaintiff and the deceased had lived harmoniously as husband and wife and had children out of that union.  TOPIC 5 : NULLITY OF MARRIAGE 3) S69(c) - Parties are within the prohibited degrees of (1) VOID MARRIAGE S.69 relationship, unless the Chief Minister has granted a special licence under Sec. 11(6). 1) S69(a) - At the time of the marriage, either party was already lawfully married and the former husband or 4) S69(d) - Parties are not male and female respectively wife of such party was living at the time of the marriage and such former marriage was then in force. Corbett v Corbett ○ Where a person’s sex is determined PP. v. Rajappan 2 MLJ 231 according to his or her birth, a marriage ○ Principle of the case: The court has no contracted with a person who was registered jurisdiction to entertain the petition as the act at birth as a male, but had undergone a of bigamy was not committed in Malaysia. sex-change operation to become a woman, ○ If the court has jurisdiction to entertain the is void as he was not a woman for the petition, the second marriage will be held as purpose of the marriage, but instead, is a a void marriage. biological male and had been so since birth. ○ HELD: The Supreme Court held that it has ○ Knowledge of the fact that the marriage is a no jurisdiction to decide on the validity of the void marriage by one or both parties to the second marriage, as the act of bigamy was marriage is not a bar to the petition of a void not committed in Malaysia. marriage. ○ After this case, there was an amendment to sections 5,6 and 7 of the LRA and section JG v Pengarah Jabatan Pendaftaran Negara 494 of the Penal Code where a person can ○ It is generally accepted by the courts be charged for the offence of bigamy even if following the advice of the medical a subsequent contract of marriage was profession that to assess and determine the made outside Malaysia in the existence of a sex of a person, four basic criteria must be valid marriage. considered: ○ a male person marries under years of age or ○ (1) Chromosomal factor; a female person who is above 16 years but ○ (2) Gonadal factor (presence of testes or under 18 years, marries without a special ovaries); license granted by the Chief Minister under ○ (3) Genital factor (including internal sex section 10 of the LRA. the parties are within organs); the prohibited degrees of relationship unless ○ (4) Psychological factor the chief minister grants a special license under subsection (6) of section 11 of the Lim Ying v Hiok Kian Ming Eric LRA, or d) the parties are not respectively ○ Basically in this case, the petitioner only male and female. knew after marriage that the respondent was a female at birth and had undergone a Corbett v. Corbett 2 All ER 33 sex-change operation. she decided to file for ○ Principle of the case: A person’s sex is divorce and further asked for a declaration determined according to his birth. that there was never been a marriage after ○ At the time of marriage, the petitioner knew repeated attempts to consummate the that that the respondent had been registered marriage had failed at birth as a male and had three years earlier ○ Held: A decree of nullity was ordered undergone a sex-change operation because the respondent was a female at consisting in the removal of the testicles and birth, but a valid marriage requires a most of the scrotum and the formation of an solemnization btw a male and female. artificial vagina and had since lived as a Furthermore, the P would not have woman. HELD: VOID. consented to the marriage if she knew abt the truth, thus there was no free consent to 2) S69(b) - Parties who have not attained the age of the marriage (MARRIAGE IS VOID) majority, but have contracted a marriage without a special licence granted by the Chief Minister as under Sec. 10.  (2) VOIDABLE MARRIAGE S.70 3) S.70(c) - that either party to the marriage did not validly consent to it whether, in consequences of 1) S.70(a) - That the marriage has not been duress, mistake, unsoundness of mind or otherwise. consummated owing to the incapacity of either party Marriage is a contract; therefore, the absence of to consummate it. consent will invalidate the marriage. Baxter v. Baxter 2 All E.R. 886 Buckland v. Buckland 2 All ER 300. ○ Principle of the case: Although the husband ○ Principle of the case: Marriage out of fear used contraceptive sheath, the marriage is (duress) is a voidable marriage. considered to have been consummated. ○ Petitioner was a policeman, employed in ○ In this case, the wife did not allow the Maltese. While working there, he went husband to have sexual intercourse with around with a Maltese girl. The girl’s parent her unless he uses contraceptive sheath. forced him to marry her. She was only 15 The husband applied for nullity of marriage. years old. He married her out of fears. The court overruled the decision in Cowen When returned to England, she applied for v. Cowen 2 All ER 197 and held that nullity of marriage and the court granted the the marriage has been consummated petition. notwithstanding the husband’s use of a sheath. Mehta v. Mehta 2 All ER 690 ○ Principle of the case: Mistake as to the L v. L MLJ 145 nature of the ceremony amounts to ○ Principle of the case: Inability to voidable marriage. consummate, may due to physiological or ○ The petitioner thought that the marriage psychological causes and may be either ceremony was for her conversion to the general or merely quad the particular Hindu religion but it turned out that the spouse. ceremony was a marriage ceremony and ○ After three years of marriage, the evidence the court held that the marriage was a shows that the wife was still a virgin. The voidable marriage. husband could consummate the marriage with another woman, but was incapable to In the Marriage of N. Osman and O Mourrali consummate the marriage with her. The (1990) 13 Fam LR 444 court granted a decree of nullity of the ○ Principle of the case: If misrepresentation marriage to the wife. or fraud induces an operative mistake, the marriage will be voidable. 2) S.70(b) - that the marriage has not been ○ The wife applied for the nullity of marriage consummated owing to the willful refusal of the based on the grounds that her consent respondent to consummate it. given to the marriage was not real consent because it was obtained by fraud. The Rathee v. Shanmugam 1 MLJ 263 husband, a foreign national, went through a ○ Principle of the case: Where the parties marriage ceremony with the wife in have agreed that a civil marriage will be Australia for the purpose of being allowed followed by a religious ceremony, it is a just to reside there. After the marriage, the excuse of refusing to consummate the husband refused to cohabit with the wife. marriage. ○ The parties are Hindus and they registered In the Estate of Park 2 All ER 1411 their marriage at the Registry of Marriages ○ Principle of the case: The correct test to at Ipoh. They agreed not to consummate determine unsoundness of mind is whether the marriage until a formal Hindu ceremony. he or she was capable of understanding the The husband delayed the ceremony and nature of the contract of marriage that he or told her that he does not wish to proceed she had entered. with the marriage. The wife was successful ○ The deceased contracted a second in applying for nullity of marriage. marriage and made a new will which revoked his earlier will. The beneficiaries of the first wife claimed that he was unsound  of mind when he entered into the second delivered a child conceived through artificial marriage. However, the court held that the insemination. In 1957, the husband found marriage was valid as the deceased was another woman and left the wife. The able to appreciate the responsibilities husband petitioned for a decree of nullity on normally attaching to the marriage. the ground of his own incapacity. ○ That at the time of marriage either party, ○ Held: In a petition by an impotent spouse, though capable of giving a valid consent, the circumstances including the was a mentally disordered person within the respondent’s attitude and reaction to the meaning of the Mental Disorders Ordinance situation created by the petitioner’s 1952 of such a kind or to such an extent as impotence must be looked at to determine to be unfit for the marriage. (*replaced by whether it would be just or unjust for the the Mental Health Act 2001, took effect 15 impotent spouse to obtain a decree. In this June 2010) case, it would be unfair, inequitable and ○ That at the time of the marriage, the unjust to grant the husband a decree. respondent was suffering from a venereal disease in a comunicable form; ○ That at the time of the marriage, the respondent was pregnant by some person other that the petitioner. BARS TO RELIEF S.71(1) 1) That the petitioner, knowing he could have the marriage avoided, led the respondent to reasonably believe that he would not seek to do so WvW ○ After the parties were married, attempts by the husband to consummate the marriage were unsuccessful. On the suggestion of the husband, the parties adopted a child. Subsequently, the husband left the wife, and petitioned for nullity of the marriage on the ground that the wife was unable to consummate the marriage or alternatively, that she wilfully refused to do so. Held: Where there was evidence that the husband had initiated the adoption in hopes that the wife would overcome her repugnance to intercourse, the joint adoption of the child had the effect of approving the marriage on the part of the husband. 2) That it would be unjust to the respondent to grant the decree Pettit v Pettit ○ The marriage was never consummated owing to the husband’s incapacity. The wife contributed towards the purchase of the matrimonial home which she kept when the husband was in the army. In 1945, she