1. ) Jeganathan A/L Kanusamy (KA-33JP-34-03/2022)

JEGANATHAN A/L KANUSAMY

SANTHI A/P MUNIANDY (NRIC NO : 820103-02-5096) --- PEMPETISYEN BERSAMA GROUNDS OF JUDGMENT [Enclosure 29]

This matter concerns an application filed by the Petitioner Wife under Enclosure 29, supported by an Affidavit affirmed on 4.6.2023 under Enclosure 30, seeking to vary the terms of a Consent Order dated 31.3.2022.

The reliefs sought included increased monthly maintenance for the two children of the marriage, and a declaration and transfer of the Petitioner Husband’s half share in the matrimonial property in favour of the Petitioner Wife.

After hearing both parties and considering the written submissions under Enclosures 42, 44, 46, and 48 together with the authorities cited, this Court on 5.12.2024 allowed the application with variations. The Petitioner Husband has since appealed. I now set out my full reasons.

The joint divorce petition was filed under section 52 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA 1976”). A consent order was recorded on 31.3.2022 regulating custody, access, maintenance, and property arrangements.

On 8.6.2023, the Petitioner Wife filed Enclosure 29 seeking variation of the order, citing her sole responsibility for the children’s expenses and the failure of the Petitioner Husband to contribute. She relied on supporting affidavits under Enclosures 30 and 31.

The Petitioner Husband filed an Affidavit in Reply under Enclosure 32 opposing the application, contending inter alia that the property transfer had already been effected and raising procedural objections regarding the Affidavit In Support.

Written submissions were filed by both parties under Enclosures 42, 44, 46, 48. After hearing counsel on 5.12.2024, I made the following orders:

Petitioner Husband to pay RM1,000 per child monthly until the child attains 18 years or completes higher education;

transfer of his half share in the matrimonial property to the Petitioner Wife;

access rights per agreement; and

costs to be borne by the Petitioner Wife. C. ISSUES FOR DETERMINATION

The issues for determination before this Court were:

Whether the application under Enclosure 29 was procedurally defective by reason of errors in date, affidavit jurat, and language requirements;

Whether this Court had jurisdiction to vary a consent order entered on 31.3.2022;

Whether there was sufficient evidence of a “material change in circumstances” to justify variation of maintenance and property terms. D. SUBMISSIONS OF PARTIES

The Petitioner Wife submitted:

She bore all costs of raising the children including tuition, Kumon classes, food, clothing, and medical expenses, averaging RM6,000 monthly;

She alone has been servicing the housing loan (RM2,800 monthly) for the matrimonial property

Under sections 83, 93, 96 and 97 LRA 1976, the Court has jurisdiction to vary maintenance and custody orders where there has been misrepresentation, mistake of fact, or material change in circumstances.

Authorities relied upon include Sivajithi a/p K Suppiah v Kunathasan a/l Chelliah [2006] 3 MLJ 184 and Jane Dripin v Charan Jit Singh Santokh Singh [2019] CLJU 55, establishing the principles of material change.

The Petitioner Husband submitted:

Enclosure 29 was defective as it cited an incorrect date of order, 31.3.2012 instead of 31.3.2022;

The supporting affidavit under Enclosure 30 was said to be defective for lack of jurat translation;

He contended that the consent order is binding and not open to variation save in exceptional circumstances. Reliance was placed on Lau Hui Sing v Wong Chuo Yong [2008] 5 MLJ 846, affirming the principle that consent orders should not be lightly disturbed;

He disputed the wife’s claim of sole financial contribution and produced a salary slip as Exhibit “JK3” suggests a limited earning capacity (net salary RM2,600). E. ANALYSIS AND FINDINGS OF THE COURT

Procedural Objections

The alleged errors in date and form were minor irregularities. The mistaken reference to “31.3.2012” was a typographical slip, not affecting substance.

As to the affidavit language objection, I find it untenable. The supporting affidavit was in Bahasa Malaysia. Even if otherwise, the Federal Court in Robinder Singh Jaj Bijir Singh Jasminder Kaur Bhajan Singh [Civil Appeal No 02(i)-48- 08/2023(N), Jan 2024] has clarified that matrimonial proceedings may be filed in English without contravening Order 92 ROC.

Order 41 r.4 and Order 92 r.4 ROC 2012 preserve the Court’s discretion to admit defective affidavits in the interests of justice. Technical objections must yield to substantive justice (Reebok (M) Sdn Bhd v CIMB Bank Bhd [2019] 9 CLJ 230).

I therefore dismissed the procedural objections.

Jurisdiction to Vary Consent Orders

While a Consent Order has contractual finality, matrimonial law recognises statutory exceptions. Sections 83, 93, 96 and 97 LRA 1976 confer power upon the Court to vary maintenance and custody orders where there has been misrepresentation, mistake of fact, or material change in circumstances.

In Lau Hui Sing v Wong Chuo Yong [2008] 5 MLJ 846, the Court of Appeal acknowledged that although consent orders are generally conclusive, statutory exceptions exist in matrimonial cases. The welfare of the children remains paramount.

I therefore hold that this Court had jurisdiction to entertain the wife’s application to vary the order notwithstanding its consensual origin.

Material Change of Circumstances

The evidence was clear that the wife has solely borne the financial responsibilities for the children and the property since the divorce. Bank statements and receipts as Exhibit “SM1” corroborated her claims.

The husband did not adduce credible evidence of consistent maintenance payments. His reliance on an undated salary slip was insufficient to prove impecuniosity or discharge of parental duty.

The children’s educational needs have increased with age (tuition, KUMON, TASKA, extracurricular). These constitute a material change warranting upward revision of maintenance.

As for property, although the husband contended the transfer was completed, evidence showed the wife continued servicing the loan. Formalising the transfer of his ½ share ensured clarity, avoided future disputes, and was in line with the original joint understanding.

I am satisfied there was a material change of circumstances justifying variation under sections 96 and 97 LRA 1976.

For these reasons, this Court ordered on 5.12.2024 that:

The Petitioner Husband shall pay maintenance of RM1,000 per child monthly until the child attains 18 years or completes higher education, whichever is earlier;

The Petitioner Husband’s ½ share in the matrimonial property be transferred to the Petitioner Wife, with liberty for the Land Administrator to effect the transfer in default;

Access rights be granted in accordance with the parties’ agreement; and

Costs to be borne by the Petitioner Wife.

The orders were made to protect the welfare of the children and to reflect the financial realities post-divorce.

In conclusion, the wife has shown a material change of circumstances within the meaning of sections 96 and 97 LRA

The husband’s procedural objections were without merit. The orders of this Court are just and equitable, and in the best interests of the children.

Accordingly, Enclosure 29 was allowed in terms set out above. Dated : 22nd September 2025 ……………………………………………… (YA PUAN MAHAZAN BINTI MAT TAIB) JUDGE HIGH COURT OF MALAYA ALOR SETAR, KEDAH For The 1st Petitioner : M Humavathi A/P Manikavelu Messrs. S. Raman & Co. Advocates & Solicitors For The 2nd Petitioner : Balabedha A/P Ramaloo Messrs. Balabedha & Co. Advocates & Solicitors