Abc v Def (BA-33JP-644-05/2022)

IN THE HIGH COURT OF MALAYA AT SHAH ALAM IN THE STATE OF SELANGOR DARUL EHSAN, MALAYSIA (FAMILY DIVISION) DIVORCE PETITION NO.: BA-33JP-644-05/2022 between ABC …PETITIONER HUSBAND and DEF …PETITIONER WIFE GROUNDS OF REFERENCE [1] Following the outcome of the case management held on 03.06.2026, I have directed, among others, that the sessions fixed for investigation pursuant to r.65(5) of the Divorce and Matrimonial Proceedings Rules 1980 (“DMPR1980”), particularly on the 8th, 9th, 10th, 11th, 12th, 18th, and 19th days of June 2026 (“Investigations”) be vacated, and for the applications be referred to Her Ladyship the Honourable High Court Judge pursuant to r.66(2) of the DMPR1980 for Her Ladyship’s deliberation and rulings, or, should Her Ladyship see fit, her decision. I too directed that the direction of filing to be put on hold until otherwise directed by Her Ladyship. [2] The said r.66 reads as follows:

66. Applications heard by registrar.

(1) Except in a case to which Rule 67 applies and subject to paragraph (2), the registrar shall, after completing his investigation under Rule 65, make such order as he thinks just.

(2) The registrar may at any time refer the application, or any question arising thereon, to a judge for his decision. 11/06/2026 05:51:47 BA-33JP-644-05/2022 Kand. 438 **Note : Serial number will be used to verify the originality of this document via eFILING portal

(3) Pending the final determination of the application, the registrar may make an interim order upon such terms as he thinks just. [3] The direction was not made lightly given that the sessions for Investigation had been fixed some 6 months ago. This course of action was necessitated by the events which are elaborated upon below. I have indicated to the parties that I will provide my reasons in writing, and I do so now. [4] I am mindful that I must be backed by the provisions in the rules in making such a direction. The said r.66(2), unlike its preceding r.66(1) and the r.66(3) that comes after, is made [note: the phrase “made” is employed pursuant to the usage of the word “make” in s.108(1) of the Law Reform (Marriage and Divorce) Act 1976 (“LRA1976”) and also the preamble found in the DMPR1980] in an unequivocal and unqualified manner. It therefore should, in my view, be construed in its plain and literal sense. [5] The phrase “at any time” stated therein the r.66(2) must mean any time, including any question arising prior to the commencement of the Investigation sessions, as was the case here. In the absence of any wording to the contrary under the said r.66(2), my discretion as the registrar to refer is not restricted to the instances where questions arise only after the Investigation has commenced. [6] The questions that arose are these:

Division 2] commenced in year 2024. Effective August 2025, pursuant to an internal placement order, I assumed the role of the Senior Assistance Registrar of the said

Court, replacing the learned Senior Assistant Registrar. [11] I was informed through a letter dated 30.09.2025 written by the previous solicitors for the Petitioner Husband, that the investigation for both Encl. 20 and Encl. (collectively “the Variation Applications”) was conducted on intermittent basis **Note : Serial number will be used to verify the originality of this document via eFILING portal throughout the year of 2024, which totalled up to 14 days. The investigation stood adjourned thereafter and was then scheduled to resume on 19.11.2025. However, the filing of an application through Encl. 317 by the Petitioner Wife to set aside the investigation sessions conducted thus far led to the vacating of the scheduled sessions (“Encl. 317”). I pause at this juncture to note that a case management was conducted on the 19.11.2025 whereby the Variation Applications were fixed for investigation from 03.02.2026 until 13.02.2026. [12] On 18.12.2025, after hearing from both parties, Encl. 317 was decided by Her Ladyship the then presiding Judge of the said Court. The relevant excerpts from the minutes reads: “Decision on Encl 317 : Court exercises its discretion in the interim of justice to allow. Encl 317 and order the investigation proceedings to be heard de novo before the learned SAR. Court directs SAR that all hearing be recorded through the RVT” [13] Following that, a case management was conducted before me on 16.01.2026, whereby the Petitioner Husband has appointed a new set of solicitors. The matter was further adjourned to the 26.01.2026 for the parties to identify the cause papers filed. On 26.01.2026, upon confirming the stance taken by the parties, the investigation for the Variation Applications were rescheduled to June 2026 as aforementioned, and, in light of the outcome of Encl. 317 and that the parties being agreeable that the evidence adduced hereinbefore be disregarded, I directed that the parties file their respective affidavits exhibiting all evidence upon which they intend to rely. [14] The affidavits were supposed to be filed on or before 09.03.2026. Numerous extensions of time were given thereafter. In the interim, parties exchanged letters, raising several issues. The flow of the events is succinctly outlined below: **Note : Serial number will be used to verify the originality of this document via eFILING portal

65. Investigation by registrar of application for ancillary relief. …

(5) At the hearing of an application for ancillary relief the registrar shall, subject to Rules 66, 68 and 69, investigate the allegations made in support of and in answer to the application and may take evidence orally and may order the attendance of any person for the purpose of being examined or cross-examined, and may at any state of the proceedings order the discovery and production of any document or require further affidavit. … (emphasis mine) **Note : Serial number will be used to verify the originality of this document via eFILING portal [30] Based on the excerpt above, it appeared quite clearly that the investigation is to be conducted on allegations made in support of and in answer to the application. In light that these were Variation Applications, in my view, the phrase “in support of” must be read together with r.63 of the DMPR1980 which stipulated that:

63. Evidence on application for variation order.

(1) An application for a variation order shall be supported by an affidavit by the applicant setting out full particulars of his property and income and the grounds on which the application is made.

(2) The respondent to the application may, within 14 days after service of the affidavit, file an affidavit in answer. [31] Therefore, r.65(5) must be construed to have meant the allegations raised in the affidavits filed in support of Encl. 20 or Encl. 34, as the case may be, as well as the affidavits in answer rebutting the aforementioned affidavit. The cut-off date, as counsel for one of the parties who I do not intend to name, had in my view rightfully pointed out, must be the date when the affidavit in reply is filed. Whatever evidence or affidavit produced or intended to be produced thereafter should be irrelevant for the purpose of investigation under r.65(5) of the DMPR1980. [32] At this juncture I must admit that when the directions were given back in 2025, I am swayed by the position taken by the previous solicitors for the Petitioner Husband (I do note that there may be a change of position the Petitioner Husband is taking now, perhaps with the advice of his new set of solicitors), as well as what transpired in respect of the previous investigation conducted by the learned Senior Assistant Registrar, and that the Encl. 307 in my view only applies to the investigation per se, and, in culmination thereof, as I indicated to the parties during the case management on 03.06.2026, I am “terrified” that I might have given direction contrary to what is actually allowed by the law. **Note : Serial number will be used to verify the originality of this document via eFILING portal [33] So much for my take in respect of the First Question. Second Question: What is the scope and extent of an investigation by the registrar under r.65(5) of the DMPR1980? [34] Assuming that the issue of the Petitioner Husband having dropped prayer 1.8 in his Encl. 20 does not arise, the next issue that has to be determined as a preliminary point or guidance is in respect the scope and extent of an investigation to be conducted by the registrar, particularly in the light of r.67(2) of the DMPR1980 which reads:

67. Applications heard by judge. …

(2) The registrar’s report shall contain an estimate of the financial relief to which, in his opinion, the applicant is entitled (if he has not already obtained an order for financial relief) and of the relief to which, in the registrar’s opinion, the applicant would be entitled if the application were granted. … [35] In this respect, Mr. Chris cited Hoong Wai Kit (supra) in support to the proposition that the investigation in the context of variation application is confined only to financial issues. With respect, Hoong Wai Kit (supra) is not persuasive, especially in light that the learned High Court Judge in the final portions of the grounds reproduced the findings of the registrar following her interviewing of the children concerned. The registrar in that case clearly went beyond the scope of r.67(2) Mr. Chris intend to impress upon me, and the learned High Court Judge appeared to have no qualms about it. [15] I have also highlighted to the parties that the same issue has been raised back in 21.09.2023, where Her Ladyship the then presiding Judge of the said Court had deliberated the same. The relevant excerpt from the minutes reads: **Note : Serial number will be used to verify the originality of this document via eFILING portal “Decision on PO in Encl 20: It is my view that Rule 65 is not limited to only financial matters. It also relates to other reliefs too. I disagree with the PW’s preliminary objections. I agree with the PH’s submissions. Hence the PO is dismissed.” [36] Be that as it may, I do find force in the position taken by the current learned counsel for the Petitioner Husband. [37] r.67(2) refers to a report written pursuant to the completion of investigation, as stipulated in r.67(1) of the DMPR1980 which is reproduced as follow:

67. Applications heard by judge.

(1) In the case of an application for financial or other relief which is being heard at the same time, the registrar shall, after completing his investigation under Rule 65, report the result thereof in writing to a judge to whom the application shall be adjourned. … [38] In my view, the report mentioned in r.67(1) when read with r.65, must relate only to the outcome of the investigation of the “allegations made in support of and in answer to the application”. It is confined to investigation of the allegations and nothing else. On the other hand, the opinion of the registrar as stipulated in r.67(2) of the DMPR1980, is confined to the estimate of financial relief to which the applicant is entitled. [39] It follows that there may be wholly redundant for the registrar concerned to interview the children of the marriage in arriving to his opinion (which is confined only to the estimate of financial relief), save in the circumstances that, in his view, necessitated by the circumstances of the case, namely to either confirm or deny the allegations made in support of or in answer to the application. **Note : Serial number will be used to verify the originality of this document via eFILING portal [40] It is in my view that since the Judge sitting in the High Court would be the ultimate decision maker in determining the fate of the children, other than taking the advice of trained or experience personnel pursuant to s.100 of the LRA1976, it is only appropriate for the Judge to be the person who had first hand experience in interviewing the child concerned, prior to forming any opinion as to whether it is a case appropriate for an order of variation be granted, rather than relying on the opinions of the registrar, so to speak. [41] So much for my take in the Second Question. Third Question: What is the extent of jurisdiction a registrar has during an investigation under r.65(2) of the DMPR1980? [42] This is a question that arose following the occurrence of these events:

65. Investigation by registrar of application for ancillary relief. …

(4) Any party to an application for ancillary relief may by letter require any other party to give further information concerning any matter contained in any affidavit filed by or on behalf of that other party or any other relevant matter, or to furnish a list of relevant documents or to allow inspection of any such document, and may, in default of compliance by such other party, apply to the registrar for directions.

(5) At the hearing of an application for ancillary relief the registrar shall, subject to Rules 66, 68 and 69, investigate the allegations made in support of and in answer to the application and may take evidence orally and may order the attendance of any person for the purpose of being examined or cross-examined, and may at any **Note : Serial number will be used to verify the originality of this document via eFILING portal state of the proceedings order the discovery and production of any document or require further affidavit. … (emphasis mine) [48] It is for the parties to satisfy the registrar on the necessity thereof, however what remains irrefutable, in my view, is that the discretion under r.67(5) remains with the registrar, and such discretion is an unfettered one. This is imperative in the light that an investigation is to be conducted in an efficient, cost-saving manner. The applicant may opt to file a formal application should he be dissatisfied with the ruling of the registrar, however in taking such course of action, in consonance with my stance as aforementioned, he must be prepared to take the risk that the matter being adjourned pending the disposal thereof by the Judge. [49] Following this approach, I have queried Ms. Sri, counsel for the Petitioner Wife as to the appropriateness for the subpoena being filed. The reply was that this was filed due to urgency of matter considering the then impending investigation, in light that the Petitioner Husband having failed to respond to the request made by the Petitioner Wife, and Ms. Sri stated that she was intending to have it filed first and will ask for my direction later (as she did then during the said case management). In order to avoid extra costs being incurred, I told Mr. Chris that I am prepared to accept Ms. Sri’s explanation, and upon confirmation with Ms. Sri, which she graciously agreed, the subpoenas filed shall not be processed and it is to be refiled only upon direction of the same from the registrar. [50] So much for my take in the Third Question. Fourth Question: Upon the completion of Investigation, what is the respective extent of jurisdiction a registrar has pursuant to rr.66 and 67 of the DMPR1980? [51] This question somehow relates to the foregoing questions, in the sense that they shared a common dilemma i.e. whether the provisions for investigation under the **Note : Serial number will be used to verify the originality of this document via eFILING portal DMPR1980 is necessary at all. Case laws have indicated that such a provision, in the context of application for ancillary relief in the DMPR1980, “give rise to the spontaneous duty imposed by the … for parties to exercise utmost good faith in making the fullest disclosure of relevant information in the an application for ancillary relief” [see Wong Choi Mei (supra), para [15]; Susila S Sankaran v Subramaniam P Govindasamy [2013] 4 CLJ 579, HC, para [18]]. [52] The issue became stark when the application for ancillary relief involved no application for financial relief. Depending on the course of interpretation taken, one may find these provisions ultra vires the intention of LRA1976. This problem manifest itself in the Petitioner Husband discontinuing prayer 1.8 in his Encl. application. [53] r.66(1) of the DMPR1980 reads:

66. Applications heard by registrar.

(1) Except in a case to which Rule 67 applies and subject to paragraph (2), the registrar shall, after completing his investigation under Rule 65, make such order as he thinks just. … [54]

(ii) The experts were appointed by the parties separately. The Court, lacking the specialised expertise in these fields, is not in a position to evaluate or attach weight to any expert report without giving the other side an opportunity to rebut the same through their own expert. Therefore it is inappropriate, in my view, to give a direction to the effect that no rebuttal would be required. **Note : Serial number will be used to verify the originality of this document via eFILING portal

Pursuant to r.66(1) of the DMPR1980, upon the completion of an investigation for Encl. 20 which has its prayer 1.8 discontinued, the registrar shall make an order. This is in sharp contrast to r.67 whereby the registrar is only required to issue a non-binding written opinion. [55] In my view, since the welfare of a child is involved, it cannot be the intention of the Parliament for an order affecting the future of a child be made by a registrar of the Court, especially when one has the interpretation of “court” under s.2 of the LRA1976 and the spirit of Guardianship of Infants Act 1961 (Revised 1988) in mind. It follows that Encl. 20 is not one that is appropriate to be dealt with by the registrar. **Note : Serial number will be used to verify the originality of this document via eFILING portal This is compounded with the fact that the swear taken by the Judge sitting in the High Court is, as it logically should, different to that which was taken by the registrar when he entered service under the Judicial and Legal Scheme, and a much heavier one. [56] In respect of the authorities at hand, the leading case law in this country with regard to the mandatory provisions for an investigation to be conducted, as far as my research reveals, is the case of Ngu Chu Chiong v Lina Soo [2008] 2 CLJ 783 decided by the Court of Appeal. However, a close examination on the case indicates that this case is in relation to financial reliefs, and it appeared to be the only issue, which has no assistive value to the matter in the case at hand. [57] On the other hand, I would also like to mention that in the case of Yogitha (supra), the learned High Court Judge (now JCA) in dealing with an objection raised pursuant to the non-compliance of rr. 61, 63 and 65 had these to say: [15] Secondly, this Application was filed amidst the ongoing proceedings of the Divorce Petition and Cross-Petition, specifically during the Respondent’s case, subsequent to the Petitioner’s conclusion of her case. The Petitioner herself had repeatedly asserted her personal knowledge regarding the Respondent’s financial situation and wealth. Consequently, the absence of compliance with rules 61, 63, and 65 of the Divorce and Matrimonial Proceedings Rules had not resulted in any prejudice to the Petitioner. [58] Albeit on a completely different issue (particularly on the issue of spousal maintenance), the above case law led to the impression that it is incumbent upon the Court to consider if there be any departure from the rules, whether prejudice will be caused. It is pertinent to note that the case of Yogitha (supra) has been overturned partially by the Court of Appeal (see Ashvin Jethanand Valiram v Yogita Kishanchand Jethwani [2026] 3 CLJ 1) however the findings of the learned High Court Judge (now JCA) in respect of the above excerpt appeared to be undisturbed. **Note : Serial number will be used to verify the originality of this document via eFILING portal [59] I would pause to add that I am not in agreement with Mr. Chris as to the applicability of r.76 of the DMPR1980 in the instant case. I agree with the position of Ms. Sri that r.76 applies to a fresh application before the Court, which is not the case here that concerns an application for a variation of a matter that had already been disposed of by the Court. [60] That is so much for my take on the Fourth Question. Postlude [61] With the above questions lingering, it is appropriate for the matter to be referred to the Her Ladyship. There may be a lapse in my reasonings as I do not wish to delve further in light that these are merely preliminary issues that may have no bearing on the final rights of the parties at stake. [62] In passing, I have queried the counsels as to the current state of affair, briefly. I was under the impression that the children are now under the care of the Petitioner Wife, but they maintain good relationship with the Petitioner Husband. In my view this is the bright side of the story and I am glad to hear that. I have indicated to the parties that parties do attempt settlement, and the children especially must maintain good relationship between siblings including any new sibling they may have. Parties must have moved on with their respective lives. Date: 11th June 2026 (HENRY HO YIT YAO) Senior Assistant Registrar High Court of Malaya Shah Alam (Family Division 1) **Note : Serial number will be used to verify the originality of this document via eFILING portal Counsels:- For the Petitioner Husband:- Sheni Casinathan and Chris Chin Shang Yoon (Tan Han Rui with them) of Messrs. Jailani & Sheni Advocates & Solicitors No. 236C, Jalan Bandar 13 Taman Melawati 53100 Kuala Lumpur. For the Petitioner Wife:- Srividhya Ganapathy of Messrs. Muhendaran Sri Advocates & Solicitors The Zhongshan Building, 84A Jalan Rotan Off Jalan Kampung Attap 50460 Kuala Lumpur. **Note : Serial number will be used to verify the originality of this document via eFILING portal