Advanced Taxation Assignment

Chan Yong Ann

Part 2 - Discussion on the case about our opinion

Respondent (R)
:
Mohamed bin Mohamed Said
Appellant (A)
:
Director General of Inland Revenue
Issue
:
Whether respondent's daughter (P) can be reverted to the status of an "unmarried child" for
the purpose of Section 48 of Income Tax Act, 1967 for the purpose of claiming deduction
(Child relief) upon annulment of her marriage due to wilful refusal to consummate the
marriage.
Supporting fact to claim for deduction:
Daughter aged twenty-four (24) for the year of assessment of 1972 (Date of born: 18th
May 1948)
R's daughter was receiving full-time instruction for a Ph.D. degree in England in
Neurophysiology at Queen Mary's College, London. (Outside Malaysia)
Marriage on 10th August 1966, but on the petition of her husband on 4th October 1971
pronounced and declared the marriage have been and absolutely null and void, by reason
of wilful refusal to consummate the marriage.
In the year of 1971, the respondent expended $5,200 for her maintenance and education
Court decision:
Decree of nullity did not have the effect of reverting the daugher to the position of an
unmarried child for the purpose of Section 48 of the Income Tax Act, 1967 and therefore the
respondent was not entitled to the decision which he claimed.
Legal reference:
Section 48(3)(a)(i)
Discussion:
We agreed with the court decision.
Both parties agreed to be bond of marriage with the view of consummation. And such bond is
breach when either party wilful refuse to consummate which render the marriage to be
incomplete because of absence of sexual intercourse despite of any formal marriage
ceremony (The Dictionary defined Consummate) A pair of couple may experienced in
premarital sex during their cohabitation. However, this doesn't render them to the status of
"married" because of lack of decree by law. If there is a decree of law and statute component,
the status is established and accepted. But, a marriage by law and statute is void or voidable
when the marriage has not been consummated owing to the wilful refusal of the spouse to
consummate the marriage (Words and Phrases Legally Defined).

o In this case, there was a valid marriage ceremony but there is not sexual intercourse after
the said ceremony. This is due to daughter's wilful refusal of consummate the marriage
without any valid reason for not doing so, such as period of menstruation. From our
opinion, it is voluntary for both parties to be intended to consummate the marriage after
the said ceremony in order to make the marriage valid and effectual. And prior getting to
the marriage stage, both parties should has deep understanding of each other and in the
view of forming a complete relationship in the future. Therefore, there is no reason for
not being so, especially those who has married.
In legal perspective, all of these does not render the a person to restore to the original position
where marriage does not take places. The meaning of "unmarried" mean either "never having
been married" or "not having a husband" (Re Sergeant). It does not support for those who
had marriage and the petition on spouse subsequently on the marriage to be null and void due
to wilful refusal to consummate the marriage nor the issue of female's virginity. unless the
issue of impotency of spouse (Re Wombwell's Settlement). The issue not to be supported
because it is solely personal conduct, despite of the number attempts at intercourse, which
results of such decree of nullity on marriage.
o In this case, the daughter was married and having a husband. The marriage is bull and
void because of her personal conduct of wilful refusal to consummate the marriage. It
might due to her personal reason for being so. Apart from this, she has strong intention
for her refusal by wilfully or purposely and separating herself from her husband two
months after marriage and decided to pursue to higher education at overseas which serve
as a further evidence of impossibility of consummate the marriage. This may be
considered as malicious desertion of this marriage.
o Furthermore, in order to support the decision made, it is important to emphasise that there
is not valid reason for unable to have such intercourse such as impotency of spouse. There
is not valid evidence to proof for the issue of impotency neither from both parties. Since
it is just merely of personal conduct in the absence of valid reason, the party who had
done so is consider breaching the bond of marriage.