Best of the Transparent Hummingbird
I am familiar, like any good Singaporean primary school kid, with the
social/political narrative, but this is the first time I’ve ever read
the actual ‘In re: Maria Hertogh’ Court of Appeal judgment from 1951. I
had thought that it a purely a custodial battle between her Malay foster
family and Dutch birth parents decided on custody principles (a close
model on the UK 1925 Guardianship of Infants Act which applied in the
Colony of Singapore at the time), a custody battle which was
insensitively handled given the socio-religious context — but I did not
realise until now that
[1951] 2 MLR 241 — Coram: Spenser Wilkinson J, Wilson J, Foster Sutton CJ FM)
No custody order can be made of a married woman. In fact, from what we know today, that was most likely why she was married as soon as the custody battle began — a tactical move by her foster family.) It therefore became necessary to decide the preliminary issue of whether her marriage was valid or void.
Unlike a contract, where the fight is over which law governed the contract, in marriage law the classic rule is the dual domicile rule. Simply stated, each of the parties to the marriage must possess capacity to marry under the respective jurisdictions of their respective country of domicile at the time of marriage. This is because the validity of a marriage should not swing between valid and void between jurisdictions. Example: supposing a groom domiciled in country X where the minimum age of marriage is 25 and a bride domiciled in country Y (minimal age of marriage: 21.) attempt to marry when both parties are 23. This marriage will be found void ab initio by a Singapore court not withstanding the fact they got married in country Y or even in a third country (say Singapore, where the minimum age for marriage is 18) because by the law of his domicile, the groom had no personal capacity to contract a marriage.
Under Dutch law, except with the special dispensation of the Queen of the Netherlands, no one under 16 could marry (and no dispensation had been obtained in this case.)
Singapore law before 1961 recognised many forms of customary and religious marriage. You could celebrate a Chinese customary marriage or a Hindu temple marriage and these would be perfectly valid under Singapore law. Under Islamic law in Singapore a woman has capacity to marry once puberty has begun (which was the case for Maria.) Maria then clearly had capacity to marry under Singapore law — provided she were a Singaore domiciliary.
Domiciliary rules in common law countries are quite technical but it is quite simple when it comes to minors: your domicile during your minority is that of your father’s, unless you are illegitimate, in which case it is your mother’s domicile. Maria’s father is a Dutch national and despite his having spent 20 years in Indonesia and speaking fluent Bahasa was still a Dutch domicilary.
The Sottomayor v d Barros exception, even had it been relevant here, could not apply in this case because Inche Mansor was not domiciled in Singapore but in Kelantan.
Would have meant (I simplify) this: if a marriage was celebrated in singapore, and one of the parties is a singapore domicilary and the other foreign, then if there is an incapacity under the foreign law only, an incapacity which is unknown in Singapore,
Political narrative - white English judges and colonial insensitive to understanding local custom ruling favorable to white Dutch people
Religious clash — outrage is becausse nad christian girl was raised muslim or that a muslim girl was taken and given to christian (safe house convent)
Women’s right angle - free will and marriages and also about child marriages
It was not disputed that the child loved her foster family. I found in the judgment
that the English judge at first instance had found that compared to a European child of similar age she was more mature, and she also clearly articulated her wish to remain with her foster family.
Neither was religion the issue. It was clear to the judges both at First instance and at COA that although she was born to a Dutch family and had been baptised (in Indonesia by a Catholic priest) she did not regard herself as a white or Christian girl. And the court (three Englishmen, at that) went as far as to make the finding that she was not, for purposes of marriage, a Christian, so arguments by her Dutch family’s counsel that her marriage had to be governed by the Christian Marriages Ordinance and not Islamic law failed outright.
What was decisive, however, was a far more technical reason and simply this: Maria was not a Singapore domiciliary.
In marriage law
The issue,
therefore, which we have to determine is not what religious teaching the infant should be deemed, or permitted,
to follow, but whether on the date of the marriage, the 1st August, 1950, she was “a person professing the
Christian religion” within the meaning of the Ordinance. That is the real issue on this particular aspect of the
case. What is the evidence on the point.
The infant was born on the 24th March, 1937, her father is a Duty subject and a Christian. On the 10th April,
1937, she was baptised in the Roman Catholic Church of St. Ignatius at Tjimahi, in Java, by a Roman Catholic
priest named Father de Koster, and up to December, 1942, when she commenced to live with one Che Aminah
binte Mohamed, she was brought up in a Roman Catholic environment. From then until the 1st August, 1950, she
was brought up in a Muslim environment, and at some stage between the two dates she embraced the Muslim
faith. In this connection the learned trial Judge, in his judgment, says:
now,
Today we would call a dozen child psychologists to argue about whether it is in her best interest to be returned to her birth parents or with her adoptive family, whether she regarded herself as a Dutch girl or a Malay girl