A R T v G a N (WA-24F-187-06/2023)

This was an application (“this Application”) by the Applicant Wife for exemption from referral of the marital dispute to the conciliatory body pursuant to section 106(1)(vi) of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”).

In the interest of privacy of the parties concerned, and sensitivity of the issues in these proceedings, the Applicant, and Respondent Husband have been anonymised in this judgment as ART and GAN respectively.

The involved parties, the Applicant, a citizen of Vietnam, and Respondent, a Malaysian (collectively, “the Parties”), aged 34 and 47 respectively at the time of the hearing of this Application, were married in May 2017, and were blessed with a son, born in August 2017 (“the Child”) whose birth was documented in a Vietnamese birth certificate.

The marriage began to unravel in 2019, prompting the Parties to live separately. The Applicant and Child resided in Vietnam, while the Respondent remained in Malaysia.

In January 2020, the Respondent had unilaterally relocated the Child from Vietnam to Malaysia without the Applicant’s consent. Despite the 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3 Applicant’s persistent requests for the Child’s return, the Respondent adamantly refused. The Applicant encountered difficulties returning to Malaysia but managed to do so in April 2022, only to find that the Respondent had vacated his residence.

Faced with these circumstances, the Applicant urgently filed an application for guardianship, custody, care, and control of the Child on an urgent, ex parte basis. Although the Applicant obtained a court order in April 2022, challenges arose in serving the cause papers to the Respondent. Meanwhile, the Applicant diligently sought the Child, who had been taken to Kuala Terengganu by the Respondent, a development that was brought to the Court’s attention during case management in May 2022.

Following the Court's directive, the Respondent complied by appearing in Court and producing the Child on 13 May 2022. Subsequently, constructive discussions between the Parties, facilitated by their respective solicitors — Messrs Ras & Co representing the Applicant and Messrs Yoon & Partners representing the Respondent — led to the formulation of an agreement. This agreement was formalised and recorded in a consent order dated 20 May 2022 ("the Consent Order"). According to the terms of the Consent Order, joint guardianship and joint custody were granted to the Parties, with primary care and control to the Applicant. Parties had also agreed that the Applicant would reside with the Child in Vietnam.

However, implementing the Consent Order presented challenges, leaving the Applicant to file, in June 2023, an application to vary the 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 terms of the Consent Order vide enclosure 26 in Originating Summons No: WA-24F-120-04/2022 (“Enclosure 26”).

In the same month, the Applicant filed this Application, seeking exemption from referring the marriage to a conciliatory body, pursuant to section 106(1)(vi) of the Law Reform (Marriage and Divorce) Act which reads: Section 106 – Requirement of reference to conciliatory body before petition for divorce

No person shall petition for divorce, except under sections 51 and 52, unless he or she has first referred the matrimonial difficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties: Provided that this requirement shall not apply in any case –

where the petitioner alleges that he or she has been deserted by and does not know the whereabouts of his or her spouse;

(ii) where the respondent is residing abroad and it is unlikely that he or she will enter the jurisdiction within six months next ensuing after the date of the petition;

(iii) where the respondent has been required to appear before a conciliatory body and has wilfully failed to attend;

(iv) where the respondent is imprisoned for a term of five years or more;

where the petitioner alleges that the respondent is suffering from incurable mental illness; or

(vi) where the court is satisfied that there are exceptional circumstances which make reference to a conciliatory body impracticable. [Emphasis added.] 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 [10] It is essential to highlight that the Respondent, having enlisted the services of new solicitors, Messrs Isaacs & Isaacs, in June 2023, filed an application, in July of the same year, to vary the terms of the Consent Order vide enclosure 33 in Originating Summons No: WA- 24F-120-04/2022 (“Enclosure 33”). By the conclusion of July 2023, the legal representation changed to Messrs Siva Nada & Associates, who assumed responsibility for the Respondent's case. [11] In August 2023, the Respondent filed an application seeking to stay the Consent Order. That application was subsequently dismissed. The issues [12] The central matter before this Court in this Application was the determination of whether there existed exceptional circumstances justifying the exemption of the Parties from the obligation to refer their matrimonial dispute to a conciliatory body. [13] The Court had to also deal with an additional challenge in the form of a preliminary objection raised by the Respondent that highlighted a discrepancy in the dates between the Notice of Application and the Applicant’s affidavit in support thereof. [14] The preliminary objection was dismissed, and this Application was allowed for the following reasons: 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 Contentions, findings, and evaluation Whether discrepancy between dates in Notice of Application and affidavit in support rendered the latter defective [15] At the outset, the Respondent raised a preliminary objection asserting a defect in the Applicant's affidavit in support of this Application. This objection stemmed from the fact that the affidavit in support was affirmed on 1 June 2023, while the Application itself was filed on 28 June 2023. [16] The Respondent in raising the preliminary objection, relied on the cases of Arab Malaysian Finance Bhd v. Serajudin Mohd Ismail & Anor [1999] 6 CLJ 405 and Oriental Bank Bhd v Sathunavakey [1998] 4 CLJ SUPP. [17] At this juncture, it became necessary to highlight that Counsel for the Respondent had cited outdated and inapplicable cases. A more relevant precedent would be the case of S Vigneswaran M Sanasee v Maju Institute of Educational Development (MIED) [2010] 7 CLJ 640. In that case, the learned Mah Weng Kwai JC (as he then was) had dismissed a similar objection. The dismissal was based on the rationale that there is no statutory requirement for such chronological alignment between the application and the affidavit in support, and even if there was, such discrepancy could be cured by Order 1A (Court or judge shall have regard to justice) and Order 2 (Effect of non-compliance) of the Rules of the High Court 1980 (now Rules of Court 2012). This view was elucidated in the following passages of the judgment: 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 [6] Counsel for the defendant relied on the decision in the High Court case of Arab Malaysian Finance Bhd v. Serajudin Mohd Ismail & Anor [1999] 6 CLJ 405 which stated that if an affidavit is affirmed before the filing of an application, the affidavit cannot be said to have been affirmed in a cause or matter because at the time of filing the affidavit, the cause or matter did not yet exist. In that case the affidavit was excluded by the court as it was affirmed a week before the filing of the originating summons which it purported to support. [7] In his written submission, counsel for the defendant submitted that if the preliminary objection is upheld and encl. 2 is excluded the originating summons stands unsupported and must be dismissed in limine. Counsel then proposed that to remedy the situation, the plaintiff should file a further affidavit to adopt and verify the contents of his affidavit (encl. 2). The reason for the proposal by counsel was so that the plaintiff cannot escape liability in the event action is taken against him on matters stated in his affidavit, for example contempt of court, on the ground that his affidavit was not properly filed or regularly before the court as at the time of filing the affidavit, the originating summons was not yet in existence. I dismissed the defendant's preliminary objection and held that the affidavit (encl. 2) was properly filed before the court for the following reasons:

I wholly disagree with the contention of counsel for the defendant and his reliance on the rationale in the decision in Arab Malaysian Finance Bhd (supra).

There is nothing in O. 41 RHC which requires an affidavit to be filed after an application which sets out the cause or matter has been filed.

O. 41 r. 9(2) RHC merely states that every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates of swearing and filing, and an affidavit which is not indorsed may not be filed or used without the leave of the court. The rule does not prohibit the swearing of an affidavit before an application is filed.

In most cases, for practical reasons (and almost without exception), affidavits are invariably affirmed before an application is filed. In reality affidavits are usually affirmed a day or just before an application with the affidavit in support are filed in court. 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8

The procedure in Arab Malaysian Finance Bhd (supra) is honoured more in its non-compliance. To comply with the decision, a party intending to file an application with an affidavit in support would have to go to court, file the application, await a case number to be given to the application by the court clerk at the registration counter, then have the affidavit in support affirmed by the deponent in the presence of a commissioner for oaths before returning to the registration counter to file the affidavit that has just been affirmed. This unnecessary procedure will cause untold inconvenience to litigants for no real or perceived benefit. Invariably what is required in Arab Malaysian Finance Bhd (supra) is never followed.

There is absolutely no prejudice caused to a defendant who is served with an application together with an affidavit in support which was affirmed earlier, whether by a day or a week, before the application was filed. I do not see how such a situation can be disadvantageous to the defendant.

Even assuming the court is wrong in not agreeing with Arab Malaysian Finance Bhd (supra), the court can without hesitation rely on O. 2 r. 1(1) RHC to regard the non-compliance as an irregularity which shall not nullify the proceedings before the court.

The court can also rely on O. 1A RHC and shall have regard to the justice of the case and not only to the technical non-compliance of the rules.

Importantly, counsel for the defendant has chosen to ignore a host of decisions delivered after Arab Malaysian Finance Bhd (supra) wherein the learned judges have for good reasons, disagreed with the decision of RK Nathan J in Arab Malaysian Finance Bhd. I need only refer to the cases of:

Hong Kong Bank Malaysia Bhd v. Nor Harizan Mohd Ali [1999] 6 CLJ 466 per Azhar bin Hj Ma'ah J (now JCA);

(ii) Yang Lak Man v. Yang Paw Man [1999] 7 CLJ 131 per Mohd Hishamuddin bin Mohd Yunus J (now JCA);

(iii) Standard Chartered Bank Malaysia Bhd v. Arivalagan Krishnan & Anor [2001] 4 CLJ 168 per Low Hop Bing J (now JCA) and

(iv) Bank Utama (Malaysia) Bhd v. Chai Koh Shon & Sons Sdn Bhd [2003] 1 CLJ 264 per Sulaiman Daud J (now JCA). 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9 In all the above cases, it was held that the RHC do not expressly or by implication require that an affidavit in support should only be affirmed after the filing of the originating cause or matter. Low Hop Bing J (now JCA) went on to say that in view of the filing and extraction procedure practiced in the court registry, it will be inconvenient and impractical for the affidavit to be affirmed on or after the date of the filing of the originating summons. It is unfortunate that counsel for the defendant saw it fit to raise the preliminary objection which, in light of the above-cited cases, rendered it frivolous and without merit.

The affirmation by the plaintiff in encl. 2 before the filing of the originating summons is not detrimental to the defendant in any way and has not occasioned any miscarriage of justice. [Emphasis added.] [18] Reference was made also to Order 41 rule 4 and Order 92 rule 3 of the Rules of Court 2012 empower this Court to look at the overall justice of the case before entertaining any objection pertaining to affidavits. The relevant provision reads: Order 41 – Affidavits Rule 4 – Use of defective affidavit An affidavit may, with the leave of the Court, be filed or used in evidence notwithstanding any irregularity in the form thereof. ***** Order 92 – Miscellaneous Rule 4 – Inherent powers of the Court For the removal of doubt it is hereby declared that nothing in these Rules shall be deemed to limit or affect the inherent powers of the Court to make 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 any order as may be necessary to prevent injustice or to prevent an abuse of the process of the Court. [Emphasis added.] [19] The preliminary objection was evidently devoid of merit and was summarily dismissed. It was opportune at this point to remind Counsel for the Respondent of the principle that the 'relation of the rules of practice to the work of justice is intended to be that of handmaid rather than mistress; and that the Court ought not to be so far bound and tied by rules' (as articulated by Lord Collins MR in Re Coles and Ravenshear [1907] 1 KB 1). Consequently, raising technicalities devoid of relevance to the merits of this Application was unwarranted. [20] Furthermore, the axiom that 'procedural skirmishes ought not to prevail, to defeat substantive justice' (in the words of Hamid Sultan Abu Backer JCA in Reebok (M) Sdn Bhd v. CIMB Bank Bhd [2019] 9 CLJ 230) underscored the inability to entertain the Respondent’s preliminary objection. [21] Guidance was also sought from the case of Kumpulan Protection Sdn Bhd v. Global Globe (M) Sdn Bhd [2016] 7 CLJ 733, wherein the Court took a stance that an error in the intitulement would not be fatal to an application unless the party complaining of such error suffered prejudice. [22] Unwilling to let procedural minutiae overshadow substantive justice, I proceeded to address the merits of this Application. 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 Whether the Applicant had established exceptional circumstances [23] In this Application, the primary contention put forth by the Applicant was her assertion of having primary care and control of the Child, with both of them residing in Vietnam. Additionally, she underscored the inconvenience she would face if the mandatory reference to the conciliatory body was not exempted, emphasising the need for multiple trips to Malaysia. [24] The Respondent opposed this Application, insisting that the Applicant should present her case before the conciliatory body and articulate her reasons for seeking a divorce in that forum. He further alleged that the Applicant was evading potential queries from the members of the conciliatory body. [25] The Respondent’s argument appeared to be untenable for multiple reasons. Firstly, an examination of the historical context surrounding this case strongly implied that the Respondent had no genuine intention to reconcile. Instead, it became evident that his primary motivation was to intentionally create challenges in the Applicant’s life, even it meant disregarding the obligations outlined in the Consent Order. [26] Notably, in a police report dated 1 June 2023, he had expressly stated “saya dengan isteri saya sehingga sekarang belum lagi bercerai tetapi saya akan memfailkan petisyen penceraian di Mahkamah Tinggi Kuala Lumpur.” This statement had clearly indicated his willingness to pursue a divorce. The Respondent’s sole 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 motive behind opposing this Application, therefore, was to prolong the divorce proceedings, and consequently to make life difficult for the Applicant. [27] Secondly, the Applicant’s rationale for seeking exemption held merit, drawing guidance from the precedent set in the case of Khoo Kay Peng v Pauline Chai Siew Phin [2015] MLJU 158. In that case, the court had asserted, in the following passage, the legitimacy of a similar basis, providing support for the Applicant’s plea for exemption from referral to the conciliatory body. [127] I am of the view that the words “exceptional circumstances which render it impracticable” are wide enough to cover not only the situations mentioned by learned Counsel for the Wife i.e. the practical or even logistical aspects e.g. whether it is too costly, too inconvenient, or not practical to be carried out, but it can also cover situations, as in the present case, where both parties confirm that there is an irretrievable breakdown of the marriage and it would be a failure, and therefore “not able to be done or put into practice successfully” the conciliatory process required by s106(1)(vi) of the LRA [Emphasis added.] [28] The passage quoted from Khoo Kay Peng v Pauline Chai Siew Phin further reinforced my view that allowing this Application was imperative. Dismissing it would subject the Applicant to logistical challenges, increased expenses, and undue inconvenience, especially considering the evident irretrievable breakdown of the marriage. [29] I am cognisant that section 106 of the Law Reform (Marriage and Divorce) Act is an obligatory provision designed to foster reconciliation. 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 Parliament’s intent in introducing this section was to ensure that marital disputes are initially referred to a conciliatory body. The conciliatory body endeavours to resolve issues arising from the dispute by providing a platform for the parties to articulate their concerns. Adherence to section 106 of the Law Reform (Marriage and Divorce) Act is mandatory, subject to exceptions delineated therein. [30] However, while this Court is obligated to endorse reconciliation, it must also consider the principles of public policy and justice. Prolonging the resolution of an unhealthy marriage could be contrary to these principles. The notion that a court should, at times, advocate for divorce rather than compelling couples to endure unhappy marriages acknowledges the potential adverse effects of remaining in dysfunctional unions both for the individuals involved and any children in the family. [31] This was particularly pertinent in the present case where the Respondent seemed intent on extending the Applicant’s hardships. Not only had he failed to comply with the terms of the Consent Order, as alluded to earlier, but the Respondent had applied to vary, and to even stay the implementation of the terms of the Consent Order, causing unnecessary delay and hardship to the Applicant in proceeding with the divorce. [32] In this context, I found the case of Bowman v Bowman [1949] 2 All ER 127 particularly instructive, wherein Lord Denning remarked in the following passage: 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 The really important consideration in all these cases is to see whether there is any chance of reconciliation. On this point it is most material to inquire what the applicant has already done to try to make the marriage a success or to become reconciled. Is the breakdown of the marriage due to any failing or maladjustment on the part of the spouse who applies to launch her petition within three years of the marriage? Has the applicant consulted a probation officer or anyone else specially qualified to help? If the court is not satisfied that all which is reasonable has been done in this respect, it may well dismiss the application. [Emphasis added.] [33] In my assessment, directing the matrimonial dispute to the conciliatory body would be futile as there was no prospect of reconciliation between the Parties. The Applicant was resolute in moving forward with the Child independently of the Respondent. [34] It was imperative to note, at this juncture, that I had dismissed the Respondent’s application to vary in Enclosure 33; while allowing the Applicant’s application to vary in Enclosure 26, awarding her sole guardianship and custody. Access was granted to the Respondent but was restricted to supervised visits in Vietnam, a measure necessitated by the Respondent’s persistent attempts to separate and conceal the Child from the Applicant. [35] Furthermore, the case of Kiranjit Kaur Kalwant Singh v. Chandok Narinderpal Singh [2010] 3 CLJ was brought to my attention, referencing the English case of Fay v. Fay [1982] 2 All ER 922. In Fay v. Fay, the House of Lords clarified that the determination of exceptional hardship or circumstances is within the purview of the trial 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 judge, to be based on his or her assessment. The relevance of this concept is evident in the following passage: The House of Lords explained: Parliament deliberately intended that the decision on what is or is not exceptional hardship or depravity in a particular case should be a matter for the judge at first instance to decide by making his own subjective value judgment as to whether the hardship or depravity was out of ordinary, when judged by prevailing standards of acceptable behavior between spouses and after taking account of all relevant circumstances [Emphasis added.] Conclusion [36] In the current proceedings, following a thorough examination and judicious consideration of all the evidence adduced — comprising both oral and documentary, along with submissions from both Parties, I concluded that requiring the Applicant to refer the matrimonial dispute to the conciliatory body would impose exceptional hardship. In light of these considerations, and in the interest of avoiding unnecessary prolongation of the matter, I deemed it appropriate to allow this Application, with costs. Dated: 23 January 2024 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 16 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Applicant – Raspreet Kaur; Messrs Ras & Co For the Respondent – Sivanesan Nadarajah; Messrs Siva Nada & Associates Cases referred to: ➢ Arab Malaysian Finance Bhd v. Serajudin Mohd Ismail & Anor [1999] 6 CLJ 405 ➢ Bowman v Bowman [1949] 2 All ER 127 ➢ C v A [1998] 6 MLJ 222 ➢ Fay v. Fay [1982] 2 All ER 922 ➢ Khoo Kay Peng v Pauline Chai Siew Phin [2015] MLJU 158 ➢ Kiranjit Kaur Kalwant Singh v. Chandok Narinderpal Singh [2010] 3 CLJ ➢ Kumpulan Protection Sdn Bhd v. Global Globe (M) Sdn Bhd [2016] 7 CLJ 733 ➢ Oriental Bank Bhd v Sathunavakey [1998] 4 CLJ SUPP. ➢ Re Coles and Ravenshear [1907] 1 KB 1 23 January 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 17 ➢ Reebok (M) Sdn Bhd v. CIMB Bank Bhd [2019] 9 CLJ 230 ➢ S Vigneswaran M Sanasee v Maju Institute of Educational Development (MIED) [2010] 7 CLJ 640 Legislation referred to: ➢ Law Reform (Marriage & Divorce) Act 1976 – section 106 ➢ Rules of Court 2012 – Orders 1A, 2 ➢ Rules of the High Court 1980 – Orders 1A, 2