DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN [PETISYEN PERCERAIAN NO: BA /2018] ANTARA DAN JUDGMENT

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[2021] 1 LNS 900 Legal Network Series

DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM DALAM NEGERI SELANGOR DARUL EHSAN

[PETISYEN PERCERAIAN NO: BA33-906-12/2018]

Dalam Perkara Mengenai Seksyen 53 dan 54 Akta Membaharui Undang-Undang (Perkahwinan Dan Perceraian) 1976 (Akta 164)

ANTARA

LEE HOCK TEONG … PEMPETISYEN SUAMI

DAN

CHING SUET YEEN … RESPONDEN ISTERI

JUDGMENT

INTRODUCTION

[1] The Respondent Wife (“RW”), who is not represented, filed this application (Enclosure 75) against the Petitioner Husband (“PH”), asking as follows:

(i) A rehearing of the Divorce Petition under Rule 44 Divorce and Matrimonial Proceedings Rules 1980 (“DMPR 1980”) that this Court disposed on 26.06.2019,

(ii) To rescind and set aside the Decree Nisi and Decree Nisi Absolute under Rule 50(5) DMPR 1980, section 53 Law

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Reform (Marriage Abd Divorce) Act 1976 (“LRA”) and section 61(2)(b) LRA; and

(iii) For an injunction under section 103 LRA.

[2] The relevant cause papers and written submissions are as follows:

(a) Enclosure 75: Notice of application filed by RW on 09.12.2019;

(b) Enclosure 76: RW’s affidavit in support affirmed by Ching Suet Yeen on 06.12.2019;

(c) Enclosure 81: PH’s affidavit in reply affirmed by Lee Hock Teong on 15.01.2020;

(d) Enclosure 82: RW’s affidavit in reply affirmed by Ching Suet Yeen on 31.01.2020;

Submissions/submissions in reply by PH and RW.

[3] This application was heard before me on 06.03.2020. After perusing the cause papers filed, respective written submissions of the parties, I dismissed the said application with a global cost of RM2,000.00, which includes her other applications (enclosure 67:

Interim maintenance pending the decision of the Court of Appeal, enclosure 78: Attachment of PH’s salary and enclosure 83:

Application for Committal Proceeding against PH. Dissatisfied with my decision (Enclosure 75), RW filed this appeal, and my reasons are as follows:

BRIEF FACTS

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[4] From the cause papers, the facts briefly are as follows:

(a) PH and RW were legally married on 06.10.2001 at the Thean Hou Temple Kuala Lumpur.

(b) They have a son (now 19+ years old).

(c) On 13.12.2018, PH had presented a single Petition for Divorce under s. 53 LRA at the Shah Alam High Court. A counsel represented PH, but RW was not represented;

(d) On the trial date 24.06.2019, the learned counsel informed me that they had duly informed RW of the trial day, but she failed to be present in Court with no lawful excuse or reasonable explanation;

(e) All papers were in order, PH was ready to proceed with the trial, and the said trial proceeded with PH giving evidence and closing his case on the same day (O. 35 r. 1(2) RC 2012);

(f) Upon perusing all the evidence adduced, relevant cause papers, and brief submission by the learned counsel, I found that PH had succeeded in proving his case on a balance of probabilities. I, therefore, allowed his claim against RW;

(g) An order for Decree Nisi was granted, and upon an application by the learned counsel, the Decree Nisi was made absolute immediately. After the required formalities had been complied with, the Certificate of Decree Nisi Absolute dated 03.07.2019 was issued;

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(h) Dissatisfied with my decision, RW had on 26.08.2019 (enclosure 46) filed an appeal to the Court of Appeal against my decision.

(It is to be noted, from the Case Management Case 2 ( “CMS2”), I found that she subsequently withdrew the said appeal, and the Court of Appeal accordingly struck it off on 02.03.2021);

(g) On 22.08.2019, RW applied (Enclosure 42) to set aside the Decree Nisi dated 26.06.2019 together with the Decree Absolute dated 03.07.2019, but RW, represented by a counsel, withdrew this application on 28.11.2019;

(h) On 23.08.2019, RW applied (Enclosure 44) for an order for an injunction against PH, but RW, represented by a counsel, withdrew this application on 28.11.2019; and (i) On 09.12.2019, PH filed the present application (enclosure

75), which is similar to the applications that were filed and withdrawn earlier (enclosure 42 and 44, respectively), ie, to set aside/strike out this Court’s decision dated 26.06.2019, the Decrees Nisi/Decree Nisi Absolute and an order for an injunction against PH.

SUBMISSION BY THE RESPONDENT WIFE (“RW”)

[5] RW filed a lengthy submission which I have summarised as follows:

(a) Her earlier applications (enclosures 42 and 44) were withdrawn by her counsel allegedly without her consent;

(b) The said Divorce Petition to be re-heard based on justice and for this Court to invoke O. 1A Rules of Court 2012;

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(c) She is claiming damages against a third party for adultery;

(d) She is claiming maintenance against PH;

(e) The Decree Nisi can only be made absolute after three months from the Court’s decision or any shorter period fixed by Court;

(f) The Documents such as Hospital Report, IPO, and all photos without any forensic report and with no translation to Bahasa Melayu;

(g) RW referred to another proceeding BA-23NCVC-12/2017, which is not before this Court today; and

(h) This Court should consider her reply and the counterclaim to the Divorce Petition, no acknowledgment of service (Form 6), and she was not informed of the hearing date 24.6.2019.

SUBMISSION BY THE PETITIONER HUSBAND (“PH”) [6] In contrast, PH argued that:

(a) On 11.12.2018, PH filed this Divorce Petition and duly served it on RW;

(b) On 26.02.2019, RW filed her reply to the Divorce Petition together with a Cross Petition against PH;

(c) On 12.03.2019, PH replied to the reply and the Cross Petition;

(d) On 20.03.2019, the hearing date for this Divorce Petition was vacated, and case management was fixed before the

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learned Senior Assistant Registrar (“SAR”). The hearing date for this Petition was fixed on 24.06.2019;

(e) On 24.06.2019, RW failed to be present, and the hearing was proceeded with. This Court allowed PH’s application, and the Decree Nisi was granted and was made absolute immediately;

(f) On 22.08.2019, RW filed two separate applications (enclosure 42 and 44, respectively) to set aside the Decree Nisi/Decree Nisi Absolute and an order for an injunction against PH for the alleged disturbance of her life by him for her whole life;

(g) On 28.11.2019, the learned counsel for RW then withdrew enclosures 42 and 44, respectively, with a cost of RM1,500.00 awarded to PH for each application;

(h) RW had also filed separate applications in enclosures 65, 78, and 83, respectively;

(i) All notices of applications filed by RW are fundamentally defective and failed to follow the statutory format. It ought to be dismissed in limine and was filed without any affidavit in support;

(j) The Decree Nisi was made absolute immediately on 24.06.2019 and was duly registered at the National Registration Department. This Court is functus officio and does not have the power to set aside to said Decree Nisi Absolute and to return parties to status quo;

(k) When the learned counsel for RW withdrew enclosure 42 and 44, respectively, RW was present in Court; and

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(l) There is no merit to this application, and it ought to be dismissed in limine.

THE LAW

Whether the Decree Nisi Absolute Can Be Set Aside

[7] The Law Reform (Marriage and Divorce) Act 1976 (Act 164) (“LRA”) provides instances and proceedings after Decree Nisi, as follows:

“61. Decree nisi and proceedings thereafter.

(1) Every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of three months from its grant unless the Court by general or special order from time to time fixes a shor ter period.

(2) Where a decree nisi of divorce has been granted, and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the Court and on that application, the Court may –

(a) notwithstanding the provisions of the last foregoing subsection, make the decree absolute;

(b) rescind the decree nisi;

(c) require further inquiry; or

(d) otherwise, deal with the case as it thinks fit. ”

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The Divorce and Matrimonial Proceedings Rules 1980 (“DPMR 1980”) provide instances where a Decree Nisi is made absolute.

53. Decree absolute on lodging notice.

(1) Subject to Rule 54 (1), an application by a spouse to make absolute a decree nisi pronounced in his favour may be made by lodging with the registrar a notice in Form 8.

(2) On the lodging of such a notice, the registrar shou ld search the court minutes and if he is satisfied —

(a) that no appeal against the decree and no application for rehearing of the cause or rescission of the decree is pending;

(b) that no order has been made by the Federal Court extending the time for appealing against the decree or by a judge extending the time for making an application for rehearing of the cause or, if any such order has been made, that the time so extended has expired;

(c) that no application for such an order as is mentioned in sub- paragraph (b) is pending;

(d) that no intervention under Rule 49 is pending; or

(e) that section 77 of the Act does not apply or has been complied with, the registrar shall make the decree absolute:

Provided that if the notice is lodged more than 12 months after the decree nisi, the registrar may require the applicant to file an affidavit accounting for the delay and may make such order on the application as he thinks fit or refer the application to a judge.

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O. 92 r. 4 Rules of Court 2012 (“RC 2012”) provides inherent power to the Court to prevent injustice

Inherent powers of the Court (O. 92, r. 4)

For the removal of doubt, it is hereby declared that nothing in these Rules shall be deemed to limit or affect the Court ’s inherent powers to make any order as may be necessary to prevent injustice or prevent abuse of the process of the Court.

[8] Setting aside a judgment in default

(a) O. 13, r. 8 RC 2012 provides, the Court may, on such terms as it thinks just, set aside or vary any judgment entered pursuant to the Court’s order;

(b) O. 42 r. 13 RC 2012 provides, an application to set aside must be made within thirty (30) days of having received a properly drawn up, produced, passed, and sealed (O. 42 r.

10(5) copy of the judgment (see Koperasi Belia Nasional Bhd v. Storage Enterprise (Port Kelang) Sdn Bhd [1998] 3 CLJ 335;

(c) The thirty-day (30) period fixes the maximum time that runs from when the sealed copy of the said judgment in default is duly served for an application to set it aside to be made;

(d) It is also trite that even if the sealed copy of the judgment in default has not been served, but the defendant has knowledge about it, he/she can apply to set it aside;

(e) The Supreme Court in Fira Development Sdn Bhd v.

Goldwin Sdn Bhd [1989] 1 CLJ 1, SC, the issue on delay in setting aside, held:

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Citing Mallal’s Supreme Court Practice, 2^nd Ed, Vol 1, p.84: The discretion will only be exercised if the affidavit supporting the application to set aside discloses facts showing defense on merits; or for some very sufficient reasons: Bank Bumiputra Malaysia Bhd v. Majlis Amanah Rakyat [1979] 1 MLJ 23; Farden v. Richter [1889] 23 QBD 124.

A defense on merits means merely raising an arguable or triable issue…A default judgment is not a judgment on merits: L Oppenheim & Co v. Mohamed Haneef [1922] 1 AC 482;

(f) Fira Development Sdn Bhd (supra) laid down the following guide:

(i) An applicant must satisfy the Court with a reasonable explanation when judgment is allowed to be recorded by default;

(ii) The reasons proffered to the Court in applying to set aside must constitute merits to drive the Court to exercise its judicial discretion to set aside; and

(iii) The Court will not tolerate tardiness or indolence in pursuing an application to set aside, which must be made promptly and within a reasonable time.

(g) The Federal Court also dealt with the issue of delay in Tuan Haji Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd [1996] 1 MLJ 30, FC:

(i) An application to set aside must be made with reasonable promptness;

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(ii) The Court retains a discretion to set aside an irregular judgment despite the long delay, provided it is satisfied no prejudice has been suffered, and if it has, it can be compensated with appropriate costs;

and

(iii) Letting the judgment in default stand tantamount to oppression.

(h) The Court of Appeal in Khor Cheng Wah v. Sungai Way Leasing Sdn Bhd [1997] 1 CLJ 396, CA, held:

(i) The application to set aside must be made timeously;

(ii) Even in a case where a right is exercisable ex-debito justitiae, a Court will refuse relief to an indolent litigant; and

(iii) The discretion is entirely for the sitting judge to judiciously exercise.

(i) The default judgment:

(i) If it is an irregular default judgment, it would be set aside as of right irrespective of the merits and without terms. The Federal Court in Tuan Haji Ahmed Abdul Rahman (supra) held the general rule is that when it can be shown to the satisfaction of the Court that a judgment in default had not been regularly obtained, the applicant is entitled to have it set aside as of right irrespective of merits and without terms;

(ii) If it is a regular default judgment, it would only be revisited on the merits of the proposed defense and

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believable explanation of the aggrieved litigant. The Supreme Court in Hasil Bumi Perumahan Sdn Bhd &

Ors v. United Malayan Banking Corp Berhad [1994]

1 CLJ 328, held, the applicant must show that his defense is not a sham defense but one that is prima facie, raising serious issues as a bona fide reasonable defense that ought to be tried because if it is a sham defense then it is no defense at all, and the application must be dismissed. The Federal Court in Fira Development Sdn Bhd (supra) said merits mean raising an arguable or triable issue, contrary to bare averments or a sham defense.

(j) It is also worth mentioning the ruling by the Federal Court in Badiaddin bin Mohd Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 1 AMR 909, it is settled that as long as an order of a Court of unlimited jurisdiction stands, irregular though it may be, it must be respected. However, where an order of the Court is made in contravention of a statute, it will be declared void and be set aside since the judgment was arrived at devoid of jurisdiction.

[9] Section 103 LRA empowers the Court to grant injunctive relief against molestation, as follows:

103. Injunction against molestation

The Court shall have power during the pendency of any matrimonial proceedings or on or after the grant of a decree or divorce, judicial separation or annulment, to order any person to refrain from forcing his or her society on his or her spouse or former spouse and from other acts of molestation.

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FINDINGS OF THIS COURT

[10] PH had raised a preliminary objection to RW’s application and prayed that it be dismissed because the applications filed by RW are defective and failed to follow the statutory format, and ought to be dismissed in limine. I am guided by O. 1A RC 2012 that in administering these Rules, the Court or a Judge shall consider the overriding interest of justice and not merely the technical non- compliance with these Rules. It must not allow procedural irregularity to affect the case’s and I also considered that RW is a layperson who was unrepresented in this proceeding, and latitude needs to be given in the circumstances. In Jagdis Singh Banta Singh v. Outlet Rank (M) Sdn Bhd [2013] 3 CLJ 47, CA, the Court of Appeal upheld the workings of O. 1A RC 2012. I find no evidence of any disadvantage or prejudice caused to PH because of this incompliance in the present application. I dismissed the preliminary objection and proceeded to consider the merits of RW’s application.

(i) For the Divorce Petition that was decided on 26.06.2019 to be set aside and rehearing under Rule 44 Divorce and Matrimonial Proceedings Rules 1980 (“DMPR 1980”)

[11] On the trial date 24.06.2019, the learned counsel informed me that they had duly informed RW of the trial day. I found that since papers were in order, PH was ready to proceed with the trial, and RW had failed to be present without giving any reasonable excuse/explanation; the said trial proceeded with PH giving evidence and closing his case on the same day as following O. 35 r. 1(2) RC 2012. Upon perusing all the evidence adduced, relevant cause papers, and brief submission by the learned counsel, I found that PH had succeeded in proving his case on a balance of probabilities. Therefore, I allowed his claim against RW with no order as to costs. Dissatisfied

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with my decision (refer Lee Hock Teong v. Ching Suet Yeen [2019]

MLJU 1576, [2019] 1 LNS 1976, [2019] AMEJ 1612 ):

(a) RW filed an appeal to the Court of Appeal;

(b) However, from the minutes available on CMS2, I observed that RW had withdrawn the said appeal, and the appeal was struck out by the Court of Appeal on 02.03.2021;

(c) Thereby rendering finality to the decision of this Court on 26.06.2019, and the question of setting aside the said order can no longer arise in the circumstances;

(d) O. 42 r. 7(1) and (2) RC 2012 provides that a judgment or order takes effect from the date on which it is pronounced.

It is my considered view that RW cannot come back to this Court by invoking Rule 44 DMPR 1980 to set aside the said order dated 26.06.2019 (saved it is premised on illegality, fraud, misrepresentation, or lack of jurisdiction) because the order is now final and permanent..

(e) In Lee Gee Pheng v. RHB Bank Bhd [2003] 4 CLJ 639;

[2004] 1 MLJ 618, [2003] 6 AMR 698, Nik Hashim JCA summarised the law on this aspect, where he said:

“It is worthy of note that once an order of court has been drawn up and perfected, as in this case, it cannot be altered, varied or set aside as the court is functus officio.

The proper recourse for a party dissatisfied with the order is to appeal against it. However, this general principle is subject to certain established exceptions which allow the court to set aside or amend a final ord er. A final order may be set aside or amended without the need to appeal in the following cases:

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(i) to correct errors in expressions of the intention of the court (the slip rule) pursuant to O. 20 r. 11 of the RHC;

(ii) where the order is made in the absence of a party at the hearing: O. 28 r. 4(1); O. 32 r. 6; O. 35 r. 2 of the RHC;

(iii) where the order has been obtained in breach of natural justice: Muniandy a/l Thamba Kaundan & Anor v.

D & C Bank Bhd & Anor [1996] 2 CLJ 586; [1996] 1 MLJ 374 (refd);

(iv) where the order contravenes a substantive statutory provision rendering it defective on grounds of illegality or lack of jurisdiction; and

(v) where the justice of the case requires the court to correct a serious defect in the order: Badiaddin bin Moh d Mahidin & Anor v. Arab Malaysian Finance Bhd [1998] 1 MLJ 393 (refd); Selvam Holdings (M) Sdn Bhd v. Grand Kenyon & Eckhardt Sdn Bhd; (BSN Commercial Bank (M) Bhd & Ors, interveners) [2000] 3 CLJ 16; [2000] 3 MLJ 201 (refd).

In the circumstances of the present case, I find RW has failed provide any grounds, justifications, premise, or merits upon which this Court may exercise its judicial discretion to revisit the Order of Decree Nisi and Decree Nisi Absolute dated 03.07.2019. Being a regular judgment, she requires an affidavit of merits, which in this case, she has none (refer Tuan Hj. Ahmed Abdul Rahman v. Arab-Malaysian Finance Bhd (supra)).

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(ii) To rescind and set aside the Decree Nisi And Decree Nisi Absolute dated 03.07.2019 under Rule 50(5) DMPR 1980, section 53 Law Reform (Marriage Abd Divorce) Act 1976 (“LRA”) and section 61(2)(b) LRA; and

[12] RW seeks to set aside the said Decree Nisi/Decree Nisi Absolute based on the provision of section 61(2)(b) LRA, which provides:

“…that where a decree nisi of divorce has been granted, and no application for it to be made absolute has been made by the party to whom it was granted, then, at any time after the expiration of three months from the earliest date on which that party could have made such an application, the party against whom it was granted may make an application to the Court, and on that application, the Court may rescind the decree nisi. ”

Evidently, s. 61(2)(b) LRA is only applicable when there is no application for the Decree Nisi to be made absolute by the party to whom it was granted. From the facts of the case:

(a) This Court granted PH the Decree Nisi on 26.06.2019, and he applied for the said Decree Nisi to be made absolute immediately;

(b) A Certificate of Making Decree Nisi Absolute was issued by this Court on 03.07.2019 (enclosure 37);

(c) In the circumstances, therefore, s. 61(2)(b) LRA is not applicable in the present case; and

(d) Since the Decree Nisi had already been made absolute, this Court is functus officio.

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Similarly, with my earlier two findings, this application by RW is devoid of merits and deserves no further consideration from this Court.

[13] In addition, there is no provision in the LRA for rescinding or setting aside a decree nisi that had already been made absolute. It is the legislator’s intention when the LRA was framed to ensure the integrity and finality of a decree nisi that had become absolute.

Parties are not allowed to freely apply to have it rescinded or set aside save and except in very exceptional cases or circumstances (see Wong Cheng Ping v. Chin Guan Seng @ Tan Guan Seng [2010] MLJU 226, [2009] 1 LNS 1627, [2010] 5 AMR 171 ).

(iii) For an injunction under section 103 LRA.

[14] The Court shall have power after the grant of a decree or divorce to order any person to refrain from forcing his or her society on his or her spouse or former spouse and from other acts of molestation.

Injunctions are generally granted under this section where the infliction of physical and mental injury and threats thereof are concerned (see Chan Ah Moi v. Phang Wai Ann (supra); Lee Sook Kwan v. Yap Woon Woi [2010] 1 LNS 1362).

However, I find RW has failed to provide essential particulars and specify the instances that PH was harassing her. Therefore, I have no hesitation in dismissing this application for an injunction for want of evidence.

CONCLUSION

[15] In light of the foregoing and after closely scrutinizing the application and examining all evidence adduced before me, I

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dismissed RW’s application (enclosure 75) with an overall cost of RM2,000.00 granted to PH.

Dated: 30 MAY 2021

(HAYATUL AKMAL ABDUL AZIZ) Judge

High Court Of Malaya Shah Alam, Selangor Darul Ehsan

COUNSEL:

For the petitioner husband - R Mageswaran; M/s M Sujata &

Associates

For the respondent wife - Ching Suet Yeen

Case(s) referred to:

Jagdis Singh Banta Singh v. Outlet Rank (M) Sdn Bhd [2013] 3 CLJ 47, CA

Lee Hock Teong v. Ching Suet Yeen [2019] MLJU 1576, [2019] 1 LNS 1976, [2019] AMEJ 1612

Wong Cheng Ping v. Chin Guan Seng @ Tan Guan Seng [2010]

MLJU 226, [2009] 1 LNS 1627, [2010] 5 AMR 171

Lee Sook Kwan v. Yap Woon Woi [2010] 1 LNS 1362

Legislation referred to:

Law Reform (Marriage Abd Divorce) Act 1976, ss. 53, 61(2)(b), 103

Rules of Court 2012, O. 1A, O. 35 r. 1 (2), O. 92 r. 4

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Divorce and Matrimonial Proceedings Rules 1980, rr. 44, 50 (5)