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

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[2019] 1 LNS 1976 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 Petitioner Husband (“PH”) filed a single divorce petition (enclosure 1) under section 53 of Law Reform (Marriage and Divorce Act) 1976 (“LRA”) to seek for the dissolution of his marriage to the Respondent Wife (“RW”). In doing so he is asking for guardianship, custody, care and control of the child of the said marriage and he will

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assume the responsibility for the said child’s education until tertiary level together with other prayers. RW who is not represented, filed her reply and prayed that the divorce petition be dismissed with cost and is claiming for spousal support and other prayers.

[2] For ease of reference I reproduce (briefly) the claim by PH against RW as follows:

(i) Bahawa perkahwinan antara Pempetisyen dan Responden yang didaftarkan melalui Daftar Perkahwinan No.

A534500 pada 6.10.2001 dibubarkan;

(ii) Dekri Nisi dijadikan mutlak dengan serta merta;

(iii) Hak pemeliharaan, jagaan dan kawalan (“care, custody and control”) serta penjagaan (“guardianship”) LJL.

diberikan kepada Pempetisyen;

(iv) Responden diberikan hak akses penuh kepada LJL;

(v) Responden berpindah keluar dengan aman damai dari rumah beralamat No. 115-A …Kajang, Selangor dalam tempoh tujuh (7) hari dari tarikh Dekri Nisi diperintah oleh Mahkamah yang Mulia ini;

(vi) Segala perbelanjaan anak tersebut termasuk pendidikan hingga ke peringkat tertinggi, perubatan dan harian sehingga mencapai umur dewasa ditanggung oleh Pempetisyen;

(vii) Responden memulangkan kepada Pempetisyen kereta No.

Pendaftaran: WEV… yang sedang digunakan oleh Responden yang didaftarkan atas nama Pempetisyen;

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(viii) Responden memindahmilik saham yang dipegang dalam Pembinaan Yoke Ling Sdn Bhd ke atas nama Pempetisyen dengan serta-merta;

(ix) Status quo hartanah-hartanah tersebut dikekalkan seperti sedia kala;

(x) Kos tindakan ini ditanggung oleh Pempetisyen;

(xi) Pihak - pihak menanggung kos peguamcara masing - masing; (xii)Perintah selanjutnya atau relief lain yang dianggap sesuai dan adil oleh Mahkamah Yang Mulia ini”

[3] RW in her reply/cross petition prayed as follows (briefly):

“(A) Bahawa permohonan pempetisyen adalah salah di sisi undang- undang di bawah Akta Membaharui Undang-Undang (Perkahwinan dan Perceraian) 1976 [Akta 164] dan fakta-fakta;

(B) Bahawa permohonan pempetisyen terhadap saya adalah secara menindas saya dan bertujuan untuk menyusahkan saya tanpa membayar nafkah tiap-tiap bulan dalam tempoh yang ditetapkan, perbuatan menindas patut dihalang oleh mahkamah yang mulia ini, bahawa permohonan pempetisyen terhadap saya adalah suatu penyalahan proses mahkamah dan adalah patut diestop dan dihalang oleh mahkamah yang mulia in;.

(C) Saya hanya memohon dalam mahkamah vang termulia disini dan mengikut dalam akta tuntutan nafkah orang bukan beragama islam [di bawah akta perempuan bersuami dan anak•

anak (nafkah) 1950);

(D) Prinsip asanya adalah bahawa seseorang suami atau bapa kepada anak, sama ada sah taraf atau sebaliknya, mempunyai tanggungjawab untuk menanggung dan membayar nafkah isteri

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dan anaknya yang tiada berkemampuan untuk menanggung diri mereka sendiri, sekiranya tanggungjawab ini diabaikan, tuntutan boleh dibuat notis permohonan di mahkamah.

CROSS PETITION

(A) Saya mengatakan bahawa permohonan pempetisyen di sini adalah mengaibkan, remeh, menyusahkan dan satu penyalahgunaan proses mahkamah yang mulia ini serta membuang masa mahkamah yang mulia ini, alasan ini adalah sebab dalam pengetahuan daripada aspek jabatan bantuan guaman, perceraian orang bukan beragama islam hendaklah dilakukan mengikut peruntukan di bawah Akta Membaharui Undang• Undang (Perkahwinan dan Perceraian) 1976 [Akta 164];

(B) Salah satu pihak boleh memohon untuk pengecualian merujuk kes ke tribunal atas alasan yang berikut:

(C) Salah satu pihak ditinggal langsung (tidak tinggal rumah yang sama);

(D) Jabatan Bantuan Guaman telah meneliti kes saya telah menolak dan sebagai kes tidak berkelayakan sebab dua pihak tinggal rumah yang sama);

(E) Pempetisyen tidak mempunyai bukti yang kukuh dan sah seperti berikut: CCTV, rekod, hospital medical repot, jabatan kebajikan masyarakat -protection order repo;

(F) Semua kes yang dihujah bertulis telah mengumumkan kes telah ditamatkan dan semua tidak berkaitan tentang tuntutan nafkah orang bukan beragama islam;

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(G) Saya menghujahkan bahawa permohonan pempetisyen di sini adalah satu penyalahgunaan kuasa mahkamah, mengaibkan, remeh dan menyusahkan;

(H) Alasan-alasan permohonan antaranya adalah bahawa pempetisyen tidak ada pembelaan bermerit dan berkelayakan terhadap permohonan saya ini dan juga tidak ada isu untuk perbicaraan;

(I) Saya agar memohon memerintahkan pempetisyen membayar nafkah yang meninggikan sebanyak RM5,000.00 tiap tiap bulan seperti berikut: membeli sebuah kereta yang baru, kos minyak pengangkutan tiap tiap bulan, kereta penyelenggaraan tiap-tiap bulan, kos kerugian berkaitan proses IVF di Hospital Universiti Kebangsaan Malaysia, kos kerugian perkahwinan cincin, dengan kadar tetap selama tempoh yang ditetapkan;

(J) saya agar memohon mahkamah akan mengambil kira keperluan isteri atau anak serta akan menimbang juga kemampuan suami atau bapa dalam menentukan suatu jumlah nafkah yang munasabah”

[4] Before I proceed further, it is to be noted that RW had failed to be present on several Case Management (CM) dates. Briefly the chronology are as follows:

Dates Particulars Event

23-1-2019 First CM before the Senior Assistant Registrar (SAR).

RW was present at 12.15pm and was informed of the next CM date

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20-2-2019 Petition served. RW had not filed her

reply. PH applied for hearing date. Hearing fixed at 20-3- 2019

RW failed to be present

20-3-2019 On the hearing date for L.1, RW informed the court that she has filed her reply and cross petition (L.14). It was instructed for RW to serve on PH and to file her documents and serve it as well.

RW was present

27-3-2019 Court was informed, RW has yet to serve the above to PH.

10-4-2019 Court was informed RW has filed an application for Summary Judgment L.13 against PH. Hearing date fixed

RW failed to be present but has written a letter

requesting a

postponement to court.

22-4-2019 Hearing for L.13 and since RW failed to be present L.13 was struck out.

RW failed to be present despite letter from court issued (L.20)

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9-5-2019 RW filed two Notices:

(i) “Notis Niat Menggunakan Affidavit bagi menghidupkan Permohonan (A. 32.k. 13)”

(ii) “Notis Mengemukakan Dokumen yang disebut dalam Pliding (A. 24, k. 10)”

13-5-2019 RW has not filed her documents. Trial date fixed

24-6-2019 Trial proceeded RW failed to be present without giving any reasonable explanation

3-07-2019 Upon application by PH, the said Decree Nisi was made absolute (L.39)

22-8-2019 RW filed “Notis Permohonan Untuk Pembatalan Decree Nisi”

(L.42)

23-8-2019 RW filed “Notis Permohonan Untuk Pembayaran Injuksi terhadap gangguan sepanjang masa hidup”

(L.44)

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26-8-2019 RW filed “Notis Rayuan Hakim Dalam Kamar” (L.40)

RW present and SAR informed RW that the said notice didn’t follow the standard format and was filed out of time & for counsel for RW to be present

5-9-2019 L.40 was withdrawn by RW. RW was present. L.42

& L.44 were served on counsel for PH

28-11-2019 L.42 and L.44 was withdrawn RW was present &

represented by a new counsel

[5] On the trial date 24.06.2019, the learned counsel informed me that they have 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 explanation, the said trial proceeded with PH giving evidence and closing his case on the same day. Upon perusing all the evidence adduced, relevant cause papers and brief submission by the learned counsel, on balance of probabilities, I found that PH had succeeded in proving his case and I therefore allowed his claim against RW with no order as to cost.

Dissatisfied with my decision, RW has filed this appeal and my reasons are as follows:

BRIEF FACTS

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In setting out the brief facts of this case, I will also refer to PH’s witness statement, RW’s reply and the documents available before me.

In a nutshell:

[6] PH and RW were legally married on 06.10.2001 at the Thean Hou Temple Kuala Lumpur and were blessed with a son (refer as

“LJL”, now aged 17+ years old). They had initially resided at No 266, Cheras, Kajang, Selangor (not the full address). According to PH, he had engaged an interior decorator to decorate the said house but RW in turn had accused him of allegedly having an affair with the said interior decorator (referred as “MK”), PH and RW eventually settled their differences with the assistance of Datuk Michael Chong of MCA on 31.01.2016 with agreed terms of settlement (exhibit P4). PH later bought the house at No 115A, Kajang, Selangor (not the full address) and the family then moved and lived in the said house in 2015.

According to PH, RW in 2016 referred their marriage issues to a Conciliatory Body/Tribunal but parties failed to settle their differences and starting from there she started embarrassing and smearing the good name of PH amongst family members, friends and business associates. According to PH, during the marriage, RW had acted unreasonably towards him and he cannot reasonably be expected to live with her. The marriage between them had in fact irretrievably broken down and consequently, he be allowed to leave the marriage.

PETITONER HUSBAND’S CASE

[7] According to PH in his evidence, the marriage between them started to deteriorate in 2009 when he was sued by a contractor. RW had asked him not to contest the said suit and from there on, he had suffered financial problems. She was apparently angry with him and could not be bothered with him but however, when he succeeded in his counter claim in the said suit, she turned around and was nice to

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him. Sometime in October 2014, she pestered him to have a second child by going through an IVF procedure which he obliged but the procedure failed.

[8] In 2015, they moved to a new house which PH had purchased under his sole name at No 115A, Kajang, Selangor (not the full address). He decided to engage an interior decorator and through his friend at Kar Soon Aluminium, he was introduced to MK an interior decorator. RW however, started accusing him of having an affair with MK where she had lodged several complaints to Biro Pengaduan Malaysian Chinese Association (MCA). After a few sessions of mediation, they agreed to a term of settlement (exhibit P4). The said settlement however, failed to lessen her unreasonable behaviour when she continued to accuse PH of having affairs with several other women. She eventually left the master bedroom and started to sleep in another room. RW then referred their marital problem to the Marriage Tribunal. PH had attended all three sessions fixed by the said Tribunal but RW only attended the second session. According to PH, RW insisted on claims which he found to be so unreasonable and they therefore failed to reconcile.

[9] It was after this session that RW started to embarrass PH with various WhatsApp messages to him personally, his friends and his family members. When he elected to ignore all these actions by RW, she physically attacked him where he had lodged a police report on 25.2.2017 (exhibit P9). On 25.2.2017, RW decided to move back to the master bedroom and attempted to force herself onto him in an effort to get pregnant with a second child when he himself was not interested to have more children as he finds that RW did not take good care of their only child, LJL. On 12.3.2017, RW again attacked and injured PH where a police report was lodged (exhibit P10). On 22.3.2017, the Marriage Tribunal issued a form KC29 (exhibit P11) stating that the parties failed to be reconciled. PH claimed that he

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cannot be reasonably expected to live with RW in such circumstances when she had intentionally embarrassed him, smeared and ruined his good name, adversely impacted his business and livelihood, humiliating and causing embarrassment to him, his family members and his friends. For ease of reference I have tabulated the chronology of events as stated by PH, as follows:

Dates RW’s unreasonable behaviours Exhibit

2-12-2016, 3-12-2016, 16-12-2016 And 5-12- 2016

Emails posted by RW and messages sent by RW to LJL’s teacher claiming herself to be a single mother which had embarrassed PH.

IDP 5

What’s App messages sent by RW advertising her maid services to others with payment of said services be made to RW.

IDP 6

WhatsApp messages sent by RW in the family group chat smearing PH’s name.

IDP 8

25-2-2017 WhatsApp messages and photos sent by RW which PH claimed to be an intimidation and lodged police report on 25.2.2017.

P 9

12-3-2017 RW allegedly attacked PH and P 10

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confronting PH’s mother. PH lodged a police report.

22-3-2017 Certificate KC-29 was issued by the marriage tribunal confirming that PH and RW had failed to be reconciled.

P 11

22-5-2017 Interim protection order (IPO) was granted to RW.

P 12

19-7-2017 PH applied to have the IPO set aside.

RW sent threatening messages to PH. IDP 13

9-8-2017 PH lodged police reports against RW. P 14

25-9-2017 IPO was set aside. P 15

WhatsApp messages sent by RW using

“LJL’s” name to third parties, PH business associates, accusing PH of having marital affairs with others.

IDP 7

PH and other Directors sued RW for defamation and a consent order was entered.

IDP 17

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RW had also filed several civil proceedings against PH, his families &

friends:

(i) B1-A77-22-03/2018, B1-A77-26- 3/2018 B1- A77-27-03/2018, B1-A77- 28-3/2018 and B1- A77-30-03/2018.

These actions were eventually dismissed by the court.

(ii) Against PH’s insurance agent B1- A77-24- 03/2018 which was eventually dismissed by the court.

(iii) Against PH’s cousins such as B1- A77-25- 07/2018, B1-A77-43-06/2018 and B1-A77-44- 06/2018 which were eventually dismissed by the court with cost.

Collectively as P 18

Civil proceedings against Persatuan Penganut Agama Buddha and Kar Soon Aluminium such as B1-A77-53-07/2018 and B1-A77-54- 07/2018 which were eventually withdrawn by RW.

P 19

RW used her mother’s name to sue PH in B1- A77-47-06/2018 and B1-A77-48- 06/2018

which were eventually dismissed by the court with cost.

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RW had illegally set up a society in the name of PH’s late father. PH and his mother lodged police report.

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The learned counsel for PH submitted that the evidence of PH had not been rebutted by RW and therefore pray for order in terms for prayer 15(i-ix) of the divorce petition (enclosure 1).

THE RESPONDENT WIFE CASE

[10] She had failed to be present on the day of the trial as fixed, despite having notice, and since PH’s papers were in order, I proceeded to hear PH’s claim. However, as a trial judge, I am also duty bound to consider the defence of RW that’s available before the court. From her reply to the petition and her cross petition, she objected to the divorce petition and had only claimed the cost of this proceeding and maintenance for her and LJL. As correctly submitted by the learned counsel for PH, she did not claim the matrimonial home nor other property of the marriage.

THE LAW

BREAKDOWN OF MARRAIGE

[11] Section 53 and section 54 of The Law Reform (Marriage and Divorce) Act 1976 (Act 164) (“LRA”) provides as follows:

“53. Breakdown of marriage to be sole ground for divorce (1) Either party to a marriage may petition for a divorce on

the ground that the marriage has irretrievably broken down.

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(2) The court hearing such petition shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, make a decree for its dissolution”

This section provides for divorce through the breakdown of marriage.

The court hearing the application may grant the decree if it is satisfied as to the facts alleged as causing or leading to the breakdown of the marriage and that the circumstances makes it just and reasonable to grant the decree of divorce.

“54. Proof of breakdown

(1) In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say:

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;

(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent;

(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;

(d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.

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(2) In considering whether it would be just and reasonable to make a decree the court shall consider all the circumstances, including the conduct of the parties and how the interests of any child or children of the marriage or of either party may be affected if the marriage is dissolved and it may make a decree nisi subject to such terms and conditions as the court may think fit to attach, but if it should appear to the court that in all the circumstances it would be wrong to dissolve the marriage it shall dismiss the petition.”

This section provides and assist the court in determining whether or not the marriage has broken down irretrievably, but it does not mean the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of those four listed grounds.

MATRIMONIAL ASSET

[12] Section 76 of LRA has been amended via Act A1546 and came into force from 15^{t h} December 2018 [PU(B) 697/2018], provides the power of court for division of matrimonial assets acquired during the marriage by the joint effort of parties upon granting a decree of divorce or judicial separation

“76. Power for court to order division of matrimonial assets (1) The court shall have power, when granting a decree of

divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.

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(2) In exercising the power conferred by subsection (1) the court shall have regard to:

(a) The extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family;

(aa) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family;

(b) Any debts owing by either party which were contracted for their joint benefit;

(c) The needs of the minor children, if any, of the marriage,

(d) the duration of the marriage; and subject to those considerations, the court shall incline towards equality of division;

(3) (deleted by Act 1546).

(4) (deleted by Act 1546).

(5) For the purposes of this section, references to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts.”

MAINTENANCE OF SPOUSE

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[13] Section 77 of LRA provides to the power of court to order maintenance of spouse as follows:

“77. Power for court to order maintenance of spouse

(1) The court may order a man to pay maintenance to his wife or former wife: -

(a) during the course of any matrimonial proceedings;

(b) when granting or subsequent to the grant of a decree of divorce or judicial separation;

(c) if, after a decree declaring her presumed to be dead, she is found to be alive.

(2) The court shall have the corresponding power to order a woman to pay maintenance to her husband or former husband where he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health, and the court is satisfied that having regard to her means it is reasonable so to order.”

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POWER FOR COURT TO MAKE ORDER FOR CUSTODY

[14] Section 88 and 89 of LRA provides power of court to make order for custody and its conditions (as the court thinks fit), as follows:

(i) “88. Power for court to make order for custody

(1) The court may at any time by order place a child in the custody of his or her father or his or her mother or, where there are exceptional circumstances making it undesirable that the child be entrusted to either parent, of any other relative of the child or of any association the objects of which include child welfare or to any other suitable person.

(2) In deciding in whose custody, a child should be placed the paramount consideration shall be the welfare of the child and subject to this the court shall have regard: -

(a) to the wishes of the parents of the child; and

(b) to the wishes of the child, where he or she is of an age to express an independent opinion.

(3) There shall be a rebuttable presumption that it is for the good of a child below the age of seven years to be with his or her mother but in deciding whether that presumption applies to the facts of any particular case, the court shall have regard to the undesirability of disturbing the life of a child by changes of custody.

(4) Where there are two or more children of a marriage, the court shall not be bound to place both or all in the custody

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of the same person but shall consider the welfare of each independently”.

(ii) “89. Orders subject to conditions

(1) An order for custody may be made subject to such conditions as the court may think fit to impose and subject to such conditions, if any, as may from time to time apply, shall entitle the person given custody to decide all questions relating to the upbringing and education of the child.

(2) Without prejudice to the generality of subsection (1), an order for custody may: -

(a) contain conditions as to the place where the child is to reside, as to the manner of his or her education and as to the religion in which he or she is to be brought up;

(b) provide for the child to be temporarily in the care and control of some person other than the person given custody;

(c) provide for the child to visit a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody at such times and for such periods as the court may consider reasonable;

(d) give a parent deprived of custody or any member of the family of a parent who is dead or has been deprived of custody the right of access to the child at such times and with such frequency as the court may consider reasonable; or

(e) prohibit the person given custody from taking the child out of Malaysia.”

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FINDINGS OF THIS COURT

(A) WHETHER THE DIVORCE PETITION WAS IN ORDER [15] The petition was filed by PH under section 53 of LRA:

a) At para 1-3 PH stated that both PH and RW were lawfully married and duly registered with a certificate of marriage issued (exhibit P1);

b) They were blessed with a son “LJL” whose birth certificate was marked as exhibit P2;

c) PH had also tendered the certificate from the Marriage Tribunal as required under section 106 LRA (exhibit P11);

d) I find PH has complied with the requirement as stated in Form 2 (enclosure 1) and Form 7 [(affidavit by PH in support of the petition) – (enclosure 4)] of Divorce and Matrimonial Proceedings Rules 1980 (“DMPR 1980”);

e) He had also filed statements as to the arrangement for children [(Form 4)-(enclosure 6)] as required under Rules 7(2), Notice of Appointment of Solicitor (enclosure 5), Notice of Proceedings [(Form 5)-(enclosure 12)] and Direction for Trial (enclosure 11);

f) He had also complied with Rules 21 for service of pleadings and affidavit of service was filed (enclosure 10) where the pleadings were served via registered post and the acknowledgment card was returned and marked as exhibit “1” (enclosure 10);

I find the petition filed by PH to be in order and RW was duly informed of the hearing date, but she elected to be absent without

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giving any reasonable explanation and I therefore proceeded with the trial. It is trite in a civil trial, that when a matter is called and only the plaintiff is present, the court may proceed to hear the matter and give judgment (O. 35 r. 1(2) RC 2012). 33-The counterclaim if any by the defendant would be dismissed. The absent party may apply to set aside the judgment (O. 35 r. 2 RC 2012) (see Liow Geok Lan v. John Loh [1993] 3 CLJ 158; Hup San Timber Trading v. Tan Ah Lan [1979]

1 MLJ 238), the recourse which RW never did exercise. It is settled that where a judgment had been recorded in the absence of a party, it may be set aside on the application of the absent party which should be made within seven days after the trial to the judge by looking into the reasons or excuse for the party’s absence. In such circumstances, it was ruled in Buga Singh v. Koh Bon Keo [1967] 1 MLJ 16, that if the court is satisfied that a party was prevented from appearing by sufficient cause on the day of the hearing, and if justice can be done by compensating the other side for any cost thrown away, the court is bound to set aside the judgment and order a new trial. Such is not the situation in the present case, where RW has failed to comply with the rules of proceedings, quality and accuracy of RW’s cause papers and procedures which is clearly visible and questionable despite certain latitude and accommodation were given to her. KC Vohrah J in in Tan Lee Siang & Ors v. Kenneison Brothers Sdn Bhd [1999] 3 CLJ 422, cited the case of Rachman v. Tabrum [1923] 39 LTR 380, ruled that where in the absence of one party, the court proceeded to hear the matter on its merits, this matter may not be re-ventilated if the order had been perfected which is a progression of the ruling of the Court of Appeal in 1979 in Hup San Timber Trading v. Tan Ah Lan case (supra) that the court may set aside the judgment to accord both parties an opportunity to be heard. In the present case, the merits of the case were heard premised on the cause papers and evidence of both parties filed in court prior to the hearing. RW’s claim before the court was not struck out (O. 35 r. 2 (1) RC 2012) for her absence at

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the full trial but was dismissed, which clearly shows that merit had been considered.

(B) RW’S REPLY TO THE DIVORCE PETITION

[17] RW at para 4 of her reply (enclosure 14) to the petition had referred to the Divorce Petition, Affidavit of PH, Statements to the arrangement of children and notice of proceeding, simply stated in her defence that the parties herein are still staying together in a house and PH had failed to give the full facts to the court (she had not offered any facts for this argument). Therefore, it is her contention that the petition filed ought to be dismissed and set aside. It is her argument that the petition is oppressive and unfair to her when PH had failed to pay her any maintenance. She is therefore, claiming RM2,500.00 as her maintenance and is also praying for PH to provide her with a car.

Despite several CM dates given, she had failed to file any documents to support her claim apart from being absent with no reasonable excuse offered. From her reply to the petition, RW is not claiming any share in the matrimonial home/assets from the husband and that is her right not to do so.

(C) WHETHER THE MARRIAGE BETWEEN PH AND RW, HAS IRRETRIEVABLY BROKEN DOWN

[18] PH had filed a single petition for divorce alleging that the marriage had broken down irretrievably because RW has behaved in such a way that PH cannot reasonably be expected to live with her and that the parties to the marriage had lived apart for a continuous period of more than two years immediately prior to the presentation of the single divorce petition. It is to be noted that PH had alleged that he was physically and mentally abused by RW and supported his

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above). In Hariram Jayaram v. Saraswathy Rajahram [1990] 1 MLJ 114, the petitioner and the respondent were married on 15 March 1972. They both resided at the matrimonial home until 16 April 1986 when the petitioner left the place and moved out. There is no child from the marriage. On 21 May 1988, the petitioner filed a divorce petition alleging that the marriage had broken down irretrievably and that the parties to the marriage had lived apart for a continuous period of at least two years immediately preceding the presentation of the petition. No other allegation was made apart from the allegation that attempts at reconciliation had failed. The respondent, by her answer filed on 26 September 1988, denied the allegations and the court ruled:

“In considering a petition for divorce, the court is required, pursuant to s. 53(1) of the Law Reform (Marriage and Divorce) Act 1976 to inquire into the facts alleged as causing or leading to the breakdown of the marriage. The petitioner had satisfied the court of the fact in relation to the marriage as set out in s.

54(1)(b) of the Law Reform (Marriage and Divorce) Act 1967 in that the respondent was of such a character and personality and behaviour that the petitioner could not reasonably be expected to live with her. The court was to examine the whole of the evidence placed before it including, and giving not inconsiderable weight to, the assertions of the parties and determine whether it can be said that in spite of the behaviour of the wife and the reaction to that behaviour of the husband, the marriage has not broken down irretrievably”.

[19] In his single petition for divorce, PH claimed that the said marriage had broken down irretrievably, the parties had lived apart (in separate bedrooms) for a continuous period of more than two years immediately prior to the filing of this single divorce petition where attempts at reconciliation had failed. As mandated under s. 53 and 54

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of the LRA, I have enquired into the facts of the present case to determine the breakdown factors and find as follows:

(a) PH claimed that RW had behave in such a way that had been excessive, embarrassing, and abusive physically and mentally and any attempts at reconciliation had failed. She is of such a character, personality and behaviour that he could not reasonably be expected to continue living with her. These allegations were not rebutted by RW because she failed to be present at the trial though the hearing date had been given to offer her explanation and/or rebuttal evidence. She did not rebut the claim that she was abusive to her husband and other incidents 33- as set out in the tabulation at para 9 above by offering her explanation and/or rebuttal evidence.

(b) There is no denying in the present case that the parties had separated sometime in 2017 when she moved out of the master bedroom and they had been living apart even though under the same roof for more than two years prior to the filling of the single divorce petition by PH. All attempts at reconciliation during that period of separation had been futile;

(c) In Q.44- of his witness statement, PH stated that the reason for filling this divorce petition is premised on the allegations that he had been abused verbally and mentally. He went on further to claimed that RW is abusive towards him, his families, friends and business associates and he could no longer stay in an abusive marriage as it was affecting him, his family and his business;

(d) I find that the explanation in his witness statement was not challenged and therefore, it must be accepted as true and correct (see Ng Siew Lan v. John Lee Tsun Vui & Anor [2017] 2 CLJ

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court is always seized of two side to a story and ultimately an election as to which story is to be believed must be made on the facts and circumstances of the case.

[20] Scrutinising the evidence of PH, considering the materials presented before me I find clearly the hostility and bitterness between the parties had not been resolved and/or receded. To say or argue otherwise would be a serious error in judgment. I am inclined on balance of probability to find that the marriage between the parties had indeed irretrievably broken down. Considering the foregoing, I find RW to have caused and contributed to the breakdown of the said marriage. I have examined the whole of the evidence placed before me and I hold without doubt that the present case had met the necessary criteria as required under s. 53 and 54 of the LRA and the marriage had indeed irretrievably broken down and I have ordered as such.

GUARDIANSHIP OF THE CHILD OF THIS MARRIAGE (“LJL”) [21] PH is seeking for custody, care and control of LJL because PH has arranged for his school’s transportation, his daily pocket money for his breakfast at school, PH’s mother usually will prepare lunch and dinner for him or sometimes PH will buy. Against that backdrop of stability, I hold it to be in the best interest, welfare and happiness of the said child of the marriage that custody, care and control of LJL be given to PH especially taking into account that LJL is almost 18 now and it won’t be long before he can then elect to stay with either party that he wishes.

MAINTENANCE FOR WIFE

[22] It is trite that if the court finds that the wife is the cause of the breakdown of marriage then she is not entitled to claim maintenance

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from her husband. In Leow Kooi Wah v. Philip Ng Kok Seng [1997] 3 MLJ 133, [1997] 1 LNS 419 Mahadev Shankar J said that in quantifying the maintenance payable, the court is required by section 78 of the LRA to base its assessment on the means and needs of the parties, regardless of the proportion such maintenance bears to the parties' income but having regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage. Since I made the findings that RW was the one who caused the breakdown of this marriage, RW is therefore, not entitled to claim maintenance from PH.

MAINTENANCE FOR CHILDREN OF THE MARRIAGE AND EDUCATIONAL COST

[23] PH has stated that he will bear all cost for the maintenance and for education of LJL and I have so ordered.

MATRIMONIAL HOME/ASSETS

[24] PH at para 9 of his petition stated that he had bought two properties during the marriage, as follows

(i) Property (i), an apartment bearing the address of LG-06, Taman Minang Ria (not detail address) and it was registered under PH and RW’s name; and

(ii) Property (ii) a bungalow bearing the address No.115-A, Kajang (not detail address) which was registered under PH’s name only

PH in his evidence stated that both properties were bought by him and there was no contribution from RW. PH is applying that status quo of the said properties to be maintained. Section 76 (1) LRA provides that

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the court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage or the sale of any such assets and the division between the parties of the proceeds of sale and the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family. In the circumstances I find the prayer by PH is reasonable and the interest of RW as one of the registered owners of property (i) is preserved and I have so ordered.

CONCLUSION

[25] Considering the foregoing and after closely scrutinising and considering all evidence adduced before me, I allowed PH’s claim and dismissed RW’s counter claim, with no order as to cost.

Dated: 16 DECEMBER 2019

(HAYATUL AKMAL ABDUL AZIZ) Judge

High Court Of Malaya Shah Alam, Selangor Darul Ehsan

COUNSEL:

For the petitioner husband - M Sujata, R Mageswaran & Henry Teh ; M/s M. Sujata & Associates

respondent wife failed to be present

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Case(s) referred to:

Liow Geok Lan v. John Loh [1993] 3 CLJ 158

Hup San Timber Trading v. Tan Ah Lan [1979] 1 MLJ 238 Buga Singh v. Koh Bon Keo [1967] 1 MLJ 16

Tan Lee Siang & Ors v. Kenneison Brothers Sdn Bhd [1999] 3 CLJ 422

Rachman v. Tabrum [1923] 39 LTR 380

Hariram Jayaram v. Saraswathy Rajahram [1990] 1 MLJ 114

Leow Kooi Wah v. Philip Ng Kok Seng [1997] 3 MLJ 133, [1997] 1 LNS 419

Legislation referred to:

Law Reform (Marriage and Divorce Act) 1976, ss. 53, 54, 76 (1), 77, 78, 88, 89

Rules of Court 2012, O. 35 rr. 1(2), 2 (1)