84.) Such categories are varied and non-exhaustive and a court has an 1 inherent jurisdiction to prevent such an abuse of process irrespective of 2 whether it is expressly prayed for or not in a striking out application. 3 4 Absence of Relief sought against 2nd Respondent in the JSP 5 [24] I have examined the JSP and I have noted that although the 2nd 6 Respondent has been named as the party having an adulterous 7 relationship with the RH, there is no relief sought against the 2nd 8 Respondent in any of the paragraphs of the JSP. This was admitted in 9 paragraph 12 of the PW’s Affidavit in Reply (Encl 34). The PW has not 10 offered any cogent explanation as to why she chose only to name the 2nd 11 Respondent as a party but not seek appropriate reliefs for the alleged 12 adultery. Be that as it may whether it was intended or inadvertently left out 13 the fact remains that even if the PW succeeds in proving the commission 14 of the alleged adultery between the RH and the 2nd Respondent, this Court 15 is hampered without the power to condemn the 2nd Respondent to pay 16 damages in respect of the alleged adultery. 17 18 [25] It rendered the PW’s action of citing the 2nd Respondent as a party 19 to be impractical, frivolous and/or vexatious and an abuse of the Court’s 20 process. 21 22 [26] Quite obviously there is merit in the learned counsel for the 2nd 23 Respondent’s argument that in the absence of relief against the 2nd 24 Respondent, there raises reasonable grounds to believe that the purpose 25 of the PW in citing the 2nd Respondent as one of the parties in the said 26 JSP to be suspiciously for some other ulterior purposes. 27 [27] The Court must be vigilant in preventing improper use of its powers 1 and abuse of its machinery. More importantly the Court has a duty to 2 uphold the integrity of its judicial system. 3 4 [28] In this regard the Court finds support and relies on the case of Tan 5 Wei Hong & Ors v Malaysia Airlines System Bhd & Ors [2018] 2 CLJ 6 84 where the Court of Appeal cautioned parties as follows: 7 8 “Concerning “abuse of process”, Supreme Court Practice, 1995, p. 9 (Sweet & Maxwell), observed as follows: 10 This term connotes that the process of the court must be used bona 11 fide and properly and must not be abused. The court will prevent 12 improper use of its machinery and will, in a proper case, summarily 13 prevent its machinery from being used as a means of vexation and 14 oppression in the process of litigation… The categories of conduct 15 rendering a claim frivolous, vexatious or an abuse of process are not 16 closed but depend on all the relevant circumstances. And for this 17 purpose considerations of public policy and interests of justice may be 18 very material.” 19 20 [29] The learned Judges of the Court of Appeal went further on to hold 21 as follows: 22 23 “We hasten to add that clearly, the courts have a duty to uphold the 24 integrity of the judicial system by declining to adjudicate on matters 25 which constitute an abuse of the courts’ process. While the 26 circumstances in which the pleadings themselves will disclose no 27 reasonable cause of action on their face will be relatively limited, the 28 inherent jurisdiction of the court to look beyond the pleadings has meant 29 that it can act at a relatively early stage to strike out proceedings where 30 the claim is clearly unsustainable and cannot succeed. Order 18 r. 31 19(1)(d) represents an important weapon in the armoury of the court to 32 prevent abuse of process. Order 18 r.19(1)(d) extends beyond the other 1 grounds and capture all other instances of misuse of the court’s process, 2 such as a proceeding that has been brought with an improper motive or 3 an attempt to obtain a collateral benefit.” 4 5 [30] In my view the naming of the 2nd Respondent in the JSP is frivolous 6 and vexatious and designed to embarrass her. In Middy Industries, the 7 Court of Appeal held that the words “frivolous and vexatious” in Order 18 8 Rule 19(1)(b) of the ROC 2012 also include proceedings where a party is 9 not acting bona fide but merely wishes to annoy or embarrass his 10 opponent or when it is not calculated to lead to any practical result. In the 11 context of this case it is my considered view that if allowed to remain it 12 would lead to a situation where even if the PW succeeded in proving the 13 commission of the adultery, the Court is constrained from condemning the 14 2nd Respondent. 15 16 [31] Further, the Court of Appeal in Middy Industries further 17 emphasized that “if an action was not brought bona fide for the purpose 18 of obtaining relief but for some other ulterior collateral purpose, it might be 19 struck out as an abuse of the process of the court”. 20 21 [32] On this issue I am guided and will pay heed to the following dicta of 22 the Federal Court in the case of Munchy Food Industries Sdn Bhd v 23 Huasin Food Industries Sdn Bhd [2022] 1 MLJ 377 which decided the 24 following: 25 26 “[41] The reason for the decision of the Court of Appeal is clearly 27 inconsistent with legal principles applicable not only in actions involving 28 trademark infringement and passing off but also the basic principle that 29 parties are bound by their pleading. The Court of Appeal departed from 30 the well-trodden path of procedure. Pleadings represents the 1 cornerstone of any litigant’s case. The court should confine its 2 decision to the question raised in the pleadings. A court cannot 3 make out a case not pleaded. Nor can it grant a relief which is not 4 claimed.” 5 6 [33] Having examined the principles propounded in the aforesaid cases 7 and applying them in the instant case, I would agree that indeed by 8 naming a co-respondent without seeking reliefs from the party is frivolous, 9 vexatious and obviously an abuse of the process of Court. My view is in 10 alignment with the case of AJS v RIS & Anor [2020] 9 MLJ 295 where 11 the learned High Court Judge struck out the petitioner wife’s action against 12 the Co-Respondent as she found the citing of the Co-Respondent was 13 clearly an abuse of process of the Court due to the fact that the Court did 14 not have the power to condemn damages against the Co-Respondent. 15 16 [34] It is in keeping with the above principle that this Court is of the view 17 that by naming the 2nd Respondent in the JSP without seeking any reliefs 18 is mala fide and an improper use of the court’s process. The Court will act 19 to prevent such an abuse from taking place. 20 21 [35] In her attempt at an explanation the PW stated that her reason for 22 the absence of the relief against the 2nd Respondent was because she 23 intended to reserve her right to seek damages in the divorce petition. This 24 Court finds no merit in this explanation and sees it as a poor reason to 25 offer. Instead it strengthened the Court’s view that the PW’s action of 26 naming the 2nd Respondent is not for the purpose of obtaining relief 27 against the 2nd Respondent but for some other ulterior motive. I would 28 agree that if the PW had really intended to reserve her rights to claim for 29 damages from the 2nd Respondent in the divorce petition then the proper 1 forum for naming the 2nd Respondent will be the divorce petition and not 2 here in the JSP. It is pointless to name the 2nd Respondent as a party in 3 the JSP and do it again in the divorce petition. Instead of simplifying the 4 proceeding in one platform, the PW has chosen to unnecessarily 5 complicate matters. It is doubtful that the PW is exercising good faith in 6 her decision to waive seeking relief against the 2nd Respondent here in 7 the JSP in favour of a future divorce proceedings. 8 9 [36] In any event this Court is firmly of the view that the naming of the 10 2nd Respondent in this JSP is an abuse of court process. The PW had not 11 exercised her right in good faith to obtain relief against the 2nd Respondent 12 but for some other collateral purpose not made known to the Court. 13 14 Whether the breakdown of marriage was due to adultery and whether 15 the PW found it intolerable to live with the Respondent 16 [37] The PW’s case against the 2nd Respondent is premised on the 17 provisions of section 54(1)(a) of LRA 1976. It is worthy to note that issues 18 raised for the Court’s determination in judicial separation petitions are no 19 different from those in a divorce petition. 20 21 [38] Section 54(1)(a) stipulates that in its inquiry into the facts and 22 circumstances as causing or leading to the breakdown of the marriage, 23 the Court shall have regard to the fact “that the Respondent has 24 committed adultery and the petitioner finds it intolerable to live with the 25 Respondent. 26 27 [39] I have kept in mind that the key words for the ground under Section 28 54(1)(a) are “committed adultery” and “finds it intolerable to live”. It bears 29 reiteration that the party who relies on Section 54(1)(a) is required to prove 1 firstly the allegation of adultery and secondly, must show that she can no 2 longer be expected to live with the guilty spouse. 3 4 [40] In the case of HAL v HAS [2024] 7 CLJ 306 the learned Judge in 5 her judgment held as follows: 6 7 “[22] Although I had made a finding of fact that the Petitioner had indeed 8 committed adultery with TEB, the subsequent inquiry pertained to 9 whether the Respondent had found the adultery intolerable, as outline 10 in s54(1)(a) of the Law reform (Marriage and Divorce) Act. 11 [23] At this juncture, it was crucial to appreciate the concept of 12 ‘tolerance/tolerate’, which referred to the act of allowing or permitting 13 something without interference or resistance, despite not necessarily 14 approving or agreeing to it. It is the willingness to accept someone or 15 something, especially opinions or behavior or people that one may not 16 agree with. 17 [24] In the present case, the Respondent admitted her awareness of the 18 adultery, although she maintained that she only learned about the 19 subsequent marriage between the Petitioner and TEB, along with the 20 birth of their daughter, a few years later. In any event, despite this 21 knowledge, she chose not to pursue a divorce under s54(1)(a) of 22 the LRA, and even continue to accept maintenance from the 23 Petitioner, although sporadically, at least until 2012. This deliberate 24 choice to maintain the marital bond, despite the significant 25 developments, undermined the credibility of her claim that the 26 adultery was intolerable and led to irretrievable breakdown of 27 marriage. 28 [25] Furthermore, the Respondent’s belated assertion of adultery 29 allegations in August 2021, a staggering two decades or so after 30 becoming aware of the Petitioner’s extramarital conduct, further 31 weakened her stance. In my view, therefore, the Respondent’s failure 32 to act upon her knowledge of the Petitioner’s adultery, coupled 1 with her prolonged continuation of the marriage, signified a tacit 2 acceptance or tolerance of the situation. Consequently, the 3 Respondent was not in a position to assert that the marriage had 4 irretrievably broken down due to adultery. 5 [27] It is well-established principle that the law does not extend its 6 assistance to those who are passive in their legal pursuits, a maxim that 7 holds true even in family law proceedings. It is interesting to note in the 8 context of Singapore, s95(5) of the Women’s Charter 1961, stipulated 9 that a person cannot seek divorce on grounds of adultery if they continue 10 cohabitating with her spouse for six months or more after discovery of 11 the adulterous relationship. While the LRA lacks a similar limitation 12 provision, there is a compelling case for considering analogous 13 amendments to dissuade litigants from neglecting their rights over time.” 14 (emphasis added) 15 16 [41] I am of the same view expressed by the Learned Judge in the above 17 case. In this regard the PW has pleaded in her JSP in Paragraphs 66 to 18 69 she discovered the alleged adultery in the year 2019. Despite this 19 knowledge, the PW still believed that their marriage can continue to be 20 preserved and maintained for the well-being of the family. This is shown 21 in paragraph 70 of the JSP which reads as follows: 22 23 “70. Walaupun sakit hati, Pempetisyen isteri sudi percaya bahawa 24 ‘perkahwinan’ tersebut dengan Responden Kedua hanya satu-satunya 25 kesilapan Responden Suami dan bahawa keluarga dan perkahwinan 26 mereka dapat terus dipelihara dan dikekalkan untuk kesejahteraan 27 kesemua.”. 28 29 [42] It is also worthy to note that the PW chose not to pursue a divorce 30 proceeding pursuant to Section 54 of the LRA 1976 and/or any judicial 31 separation petition pursuant to Section 64 of the LRA until the year 2024. 32 To compound matters further the PW also elected to continue living 1 together with the RH in the matrimonial home until 17.8.2023. It took her 2 approximately 6 years down the road before she finally filed this JSP. 3 4 [43] Bearing the above circumstances in mind it is the view of this Court 5 that the PW’s failure to act upon her knowledge of the alleged adultery 6 together with her election of continuing to stay in the marriage, had 7 signified a tacit acceptance and a tolerance of the situation she found 8 herself in. In fact, it is important to bear in mind that it was the RH who left 9 the matrimonial home in August 2023, not the PW. Her not leaving the 10 matrimonial home drove home the point that she tolerated the adultery 11 and did not see it as the main contribution to the breakdown of her 12 marriage to the RH. As described in HAL v HAS, this undermined the 13 credibility of her claim that the adultery was intolerable and led 14 irretrievably to the breakdown of the marriage as required in Section 15 54(1)(a) of the LRA 1976. 16 17 [44] Contrary to her claims, it is noted in the PW’s Affidavit in Reply dated 18 26.4.2024(Encl 34), the PW referred to several factors which she averred 19 supported and established the fact that the alleged adultery is the cause 20 of the breakdown of her marriage with the RH. The following excerpts of 21 the paragraphs of Enc 34 are reproduced below for ease of reference: 22 23 Paragraph 6.1 : the PW asserted that she only found out about the 24 purported “marriage” between the 2nd Respondent and the RH after the 25 RH left the matrimonial home. This assertion is inconsistent and in direct 26 contrast with her averments in Paragraphs 66 to 70 of the JSP. In the 27 JSP the PW had pleaded that she discovered the alleged adultery as 28 early as the year 2018. The PW had also discovered evidence of his 29 adulterous relationships with many other women which caused her to be 30 hospitalized after a suicide attempt in 2021. In spite of all her assertions 1 she made the decision to stay on in the marriage. 2 3 Paragraph 6.3 : the PW alleged that the RH and the 2nd Respondent 4 often travelled abroad together, where the RH would spend lavishly 5 upon the 2nd Respondent.” This issue was never raised nor pleaded in 6 the JSP. 7 8 [45] Apart from the above the PW had attempted to offer an explanation 9 for her continued residence in the matrimonial home. These averments 10 departed from the averments made in Paragraph 70 of the JSP. 11 12 [46] In this regard I find serious and material departures from her 13 pleadings which the PW has not explained. I find merit in the 2nd 14 Respondent’s contention that affidavits cannot be utilized as an 15 instrument to improve and/or make good the pleadings (see United 16 Malayan Banking Corporation Berhad v Palm & Vegetable Oils (M) 17 Sdn Bhd & Ors [1981] 1 MLJ 206). 18 19 [47] This trite principle was restated and adopted in the recent case of 20 Dr Vijaendran a/l Subramaniam (Chairman for the Malaysian 21 Association for the Advancement of Functional and Interdisciplinary 22 Medicine (MAAFIM) & Anor v Kerajaan Malaysia & Anor [2023] 7 MLJ 23 922 as follows: 24 25 “[23] Based on the above-established principle of the decided cases, it 26 is crystal clear that the nature and scope of the plaintiff’s claim must 27 be confined to what was expressly pleaded in the OS. 28 [24] The scope of the original pleading cannot be surreptitiously 29 amended or enlarged by way of affidavit or submission. It is my view 30 that the court’s power to grant relief is not a carte blanche for the parties 31 to depart from their own pleaded case. The opposing party must be 1 given fair notice of the case which they must meet.”. 2 3 [48] In the instance case the PW has strayed from her pleadings. It is the 4 view of this Court that the PW is not allowed to introduce new allegations, 5 facts, matters and circumstances that were not pleaded in the JSP and 6 the Court shall not take those averments into consideration in coming to 7 its decision. 8 9 [49] Therefore the PW’s assertion that the marriage had irretrievably 10 broken down due to the alleged adultery and that she found it intolerable 11 to live with him is obviously unsustainable. No matter what her reasons 12 for staying the fact remained that she stayed and this signified a tacit 13 acceptance and a tolerance of the adultery. In this regard the PW had 14 willingly expressed her belief that the marriage and families can continue 15 to be preserved and maintained for the well-being of all. In the 16 circumstances of this case the PW is in no position to assert that the 17 marriage had irretrievably broken down due to the adultery committed by 18 the Co-Respondent. 19 20 [50] The PW herself had admitted that the RH had affairs with many 21 other women. Yet of all these women, she chose to only name this Co- 22 Respondent as the party who was the cause of the breakdown of her 23 marriage to the RH. It is an obvious case of an abuse of court process. 24 25 [51] In a final note, this Court is perplexed by the next contention 26 submitted on behalf of the PW to oppose the 2nd Respondent’s 27 application. Learned counsel for the PW submitted that the PW had 28 produced prima facie evidence of adultery in the exhibits attached to her 29 affidavit in reply dated 26.4.2024(Encl 34) and the 2nd Respondent had 1 failed to answer and/or respond to each of all these assertions. 2 3 [52] I find that submission to be misconceived. From my examination of 4 the affidavits filed by the 2nd Respondent it is clear that all the allegations 5 were disputed and denied. The 2nd Respondent in using words and 6 phrases such as “purported adulterous relationship”, “the alleged 7 relationship” and “allegation of adultery” showed that the allegations and 8 averments made by the PW against the 2nd Respondent were challenged. 9 The words and phrases used were clear and unambiguous. To my mind 10 the 2nd Respondent never made admissions to any of the PW’s 11 allegations. 12 13 [53] It may be argued that it is better to bring this matter before a full trial 14 to uncover the truth with regard to the issues surrounding the adultery 15 allegations. However it is my view that there must be some ground shown 16 to substantiate all the averments first before the court can allow this to 17 happen. Here the pleading itself falls short in establishing the key features 18 of proof in relation to the Co-Respondent. 19 20 [54] Given that the JSP is fraught with difficulties and without 21 fundamental reliefs and more, it will be requiring this Court to exercise 22 moral justice when it is not the function of the court. At any rate, I am of 23 the view that to permit the PW to cite the adultery involving the Co- 24 Respondent as the catalyst for the breakdown of the marriage between 25 her and the RH, following years of awareness without action, will not only 26 defy the principles of justice and equity but would also contravene the very 27 essence of accountability (see HAL v HAS [2024] CLJU 753). 28 [55] With all said and done, I turn now to the action taken by the PW after 1 the instant application was filed. 3 months down the line, the PW decides 2 to file in an application for leave to amend the JSP by including a prayer 3 against the 2nd Respondent, which reads as follows: 4 5 “156.1 Bahawa Responden Kedua yang mengakibatkan keruntuhan 6 perkahwinan antara Pempetisyen Isteri dan Responden Suami adalah 7 diperintahkan untuk membayar ganti rugi kepada Pempetisyen Isteri.” 8 9 [56] The PW’s action of filing in the said amendment application after the 10 2nd Respondent’s striking out application and the exchanges of the 11 affidavits between the parties pertaining to the striking out application 12 impliedly infers the PW’s concession and admission that the absence of 13 relief sought against the 2nd Respondent gives justification and reasonable 14 ground to strike out the JSP. Even more than that, it signified the PW’s 15 tactical manoeuvre and inelegant attempt to circumvent the striking out 16 application. 17 18 Conclusion 19 [57] As such, having considered all matters and based on the above 20 reasons, I find there is no compelling evidence by the PW to sustain the 21 JSP against the 2nd Respondent. It is my finding that the proceedings 22 against the 2nd Respondent is frivolous and vexatious and an abuse of 23 Court process. 24 25 [58] To conclude, for the reasons discussed, I am impelled to the view 26 that the PW’s claim is on the face of it plainly and obviously unsustainable 27 and this is a case suitable to be struck off against the Co-Respondent. 28 [59] The application in Encl 19 is allowed and consequently the 1 application in Encl 39 is struck off. 2 3 Dated 4 December 2024. 4 5 6 7 (JULIE LACK) 8 Judge 9 High Court of Malaya 10 Shah Alam, Selangor Darul Ehsan 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 Counsel 1 For the Petitioner Wife : 2 Megan Choo Wen Shin with Kong Xin Er 3 (MESSRS. JOSEPHINE, L K CHOW & CO.) 4 5 For the Respondent Husband : 6 Vel Manohran 7 (MESSRS. M. MENON & PARTNERS) 8 9 For the 2nd Respondant : 10 James Chow with Pey Shau Xuan 11 (MESSRS. CHOW KOK LEONG & CO.) 12 13 14 15 16 17 18 19 20