D a Y v S a Y (WA-33-383-09/2020)

This was the Petitioner-Husband’s petition for divorce, whilst the Respondent-Wife cross-petitioned for divorce, monthly spousal maintenance, and equal division of matrimonial assets, and damages from the Party-Cited.

Given the privacy of parties and sensitivity of issues in these proceedings, the Petitioner, Respondent, and Party-Cited have been anonymised respectively as DAY, SAY, and RAY.

The Petitioner and Respondent (“collectively, the Parties”), aged 60 and 54 respectively at the time of the trial, registered their marriage in June 1989. Over their decades together, they raised a family comprising three children, namely, two sons and a daughter (“the Children”), who at the time of the trial had all reached the age of majority.

During their marriage, the Respondent dedicated her life to homemaking, while the Petitioner embarked on entrepreneurial endeavours, delving into the culinary industry, as well as the trade of scrap iron. S/N cq6Qc4ly7kqLz3FrLvn3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 3 [5] In the years around 2007 or 2008, the Petitioner began a relationship with the Party-Cited, who is of Thai nationality. Sometime in 2009, the Petitioner and Party-Cited proceeded with a 'traditional marriage' ceremony. However, it was crucial to highlight that this 'traditional marriage' lacked validity due to the Petitioner's existing marriage to the Respondent.

The adulterous relationship between the Petitioner and Party-Cited resulted in the birth of two children, one in 2010 and another in 2012.

Relying on a letter purportedly issued by Jabatan Pendaftaran Negara dated 29 November 2011 (Pengesahan Penceraian/Pembatalan Perkahwinan), which stated that the Petitioner and Respondent had been ‘divorced’ since 21 November 2011, the Petitioner and Party-Cited proceeded to ‘register’ their marriage at the Jabatan Pendaftaran Negara in February 2012. The Respondent, however, continued to reside at the Matrimonial Home as she claimed she was unaware of this ‘divorce’.

Sometime in 2017, the Petitioner showed the Respondent a letter dated 20 July 2017 (Pengemaskinian Rekod Perkahwinan), purportedly issued by Jabatan Pendaftaran Negara, ‘confirming’ that the Petitioner had ‘divorced’ the Respondent in 2011.

The Respondent vacated the Matrimonial Home as she claimed that the Petitioner had caused her to do so. However, she made inquiries about the alleged ‘divorce’ with the Court. On 7 November 2017, the Court issued a letter (Pengesahan Ketulenan Sijil Menjadikan Decree S/N cq6Qc4ly7kqLz3FrLvn3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 4 Nisi Mutlak (Penceraian)) to Jabatan Pendaftaran Negara, indicating that the alleged ‘divorce’ obtained by the Petitioner was not valid. This was because the divorce petition number in the letters purportedly issued by Jabatan Pendaftaran Negara corresponded to a decree nisi granted to an unrelated couple. It appeared, therefore, that the Petitioner had relied on a divorce order granted to another couple, to claim that he was ‘divorced’ from the Respondent and, on that basis, proceeded to ‘marry’ the Party-Cited.

Upon being discovered that the ‘divorce’ between the Petitioner and Respondent that the Petitioner had relied on was not valid, and that they were, therefore, still legally married, the Petitioner initiated proceedings to ‘dissolve his marriage’ to the Party-Cited, which he had registered in February 2012. This ‘divorce’ from the Party-Cited was finalised in 2019.

In the interim, the Respondent, having left the Matrimonial Home, resided with one of the sons of the marriage, until 2023, after which she relocated to live with her sister due to her son's cancer diagnosis. (During oral submissions of the Parties, the Court was informed of the son's demise.)

In September 2020, the Petitioner filed a divorce petition ("the Divorce Petition"), to which the Respondent responded and cross-petitioned in May 2021 ("the Cross-Petition").

For ease of reference, the diagram below is produced to facilitate the narrative of this case. S/N cq6Qc4ly7kqLz3FrLvn3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 5 P = Petitioner R = Respondent PC = Party-Cited JPN = Jabatan Pendaftaran Negara 2007/2008 – P begins relationship with PC 2010 – P goes through customary ‘marriage’ with PC 2012 – P registers ‘marriage’ with PC at JPN 2019 – P ‘divorces’ PC 2017 – P Shows ‘letter’ to R from JPN dated July 2017, confirming P and R had been ‘divorced’ since 2011 2017 R moves out Matrimonial Home 1989 – P Marries R 2017 – R obtains confirmation from Court dated November 2017 that ‘divorce’ between P and R not valid, and that P and R are still married 2020 – P files for divorce from R 2021 – R files response and cross-petition 2011 P claims to have ‘divorced’ R P S/N cq6Qc4ly7kqLz3FrLvn3w **Note : Serial number will be used to verify the originality of this document via eFILING portal 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 6 The issues [14] The issues that had to be addressed by this Court were as follows:

Spousal Maintenance – In the deliberation of whether spousal maintenance (including arrears in spousal maintenance) should be awarded, it was imperative to consider the following issues:

Whether the irretrievable breakdown of the marriage was due to the Petitioner’s adultery with the Party-Cited, and if it was, whether the Respondent had found such adultery intolerable;

(ii) Whether the irretrievable breakdown of the marriage was due to the Respondent’s unreasonable behaviour such that the Petitioner was not expected to live with the Respondent. In addressing this issue, the Court had to also consider if the Petitioner had pleaded the facts that he had averred to while testifying, and whether the Petitioner’s purported fraudulent conduct should be considered by the Court; and

(iii) Whether the Respondent had fulfilled the ‘means and needs’ test to justify spousal monthly maintenance claimed. In determining spousal maintenance, the further issue to address was whether this Court could consider arrears in spousal maintenance for the S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 7 Respondent, bearing in mind that it had not been specifically pleaded.

Matrimonial Assets – With regard to the matrimonial assets (“the Matrimonial Assets”), the issue was whether the Respondent was entitled to equal division of the Matrimonial Assets, which were three immoveable properties. [15] The divorce was granted and the decree nisi was made absolute immediately. Besides the Matrimonial Home, which was ordered to be transferred fully to the Respondent, the Respondent was also awarded, from the Petitioner, a monthly as well as arrears in spousal maintenance. However, no damages were awarded to the Respondent from the Party-Cited. The following are my reasons. Contentions, evaluation, and findings Maintenance [16] In navigating the complexities surrounding spousal maintenance, significant focus was placed on section 77(1) of the Law Reform (Marriage and Divorce) Act 1976 (“the Law Reform (Marriage and Divorce) Act”). The provision reads: Section 77 - Power of court to order maintenance of spouse

The court may order a man to pay maintenance to his wife or former wife:

during the course of any matrimonial proceedings;

when granting or subsequent to the grant of a decree of divorce or judicial separation; S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 8

if, after a decree declaring her presumed to be dead, she is found to be alive. [Emphasis added]. [17] Despite the discretionary power held by the Court in handling maintenance claims by a spouse, the Court was guided by the degree of responsibility assigned to each party for the breakdown of the marriage, and the 'means and needs' test, outlined by section 78 of the Law Reform (Marriage and Divorce) Act, which reads: Section 78 – Assessment of maintenance In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage. [Emphasis added.] [18] In my evaluation of whether the Respondent was deserving of maintenance, I found guidance in established legal precedents, specifically the cases of Dr Shameni Pillai PB Rajedran v Dr S Arulselvam Sanggilly & Anor [2011] 6 CLJ 782, and V Sandrasagaran

Veerapan Raman v. Dettarassar Velentine Souvina Marie [1999] 5 CLJ These cases underscored the importance for the Court to consider the following factors: S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 9

income, earning capacity, property, or financial resources that each party presently possesses or is likely to possess in the foreseeable future;

financial needs, obligations, and responsibilities that each party currently or is likely to have in the foreseeable future;

standard of living enjoyed by the family prior to the breakdown of the marriage;

age of each party and the duration of their marriage;

any existing health, physical, or mental disability of the parties;

respective contributions made by each party to the welfare of the family; and

duration of the marriage. Whether breakdown of marriage due to Petitioner’s adultery with Party-Cited [19] It was undisputed that the Petitioner, while still married to the Respondent, became acquainted with the Party-Cited, which relationship culminated in a sexual relationship, resulting in the birth of two children, born respectively in 2010 and 2012. The Respondent, therefore, claimed damages from the Party-Cited pursuant to section 58(1) and (2) of the Law Reform (Marriage and Divorce) Act, which reads: S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 10 Section 58 – Damages for adultery may be claimed against co-respondent

On a petition for divorce in which adultery is alleged, or in the answer of a party to the marriage praying for divorce and alleging adultery, the party shall make the alleged adulterer or adulteress a co-respondent, unless excused by the court on special grounds from doing so.

A petition under subsection (1) may include a prayer that the co-respondent be condemned in damages in respect of the alleged adultery. … [Emphasis added.] [20] Although the adulterous relationship between the Petitioner and the Party-Cited was undisputed, the pivotal question at hand revolved around whether the Respondent had tolerated such adultery, as outlined in section 54(1)(a) of the Law Reform (Marriage and Divorce) Act, which stipulates: Section 54 – Proof of breakdown

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-

that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; … [Emphasis added.] [21] At this juncture, it was imperative to grasp the essence of 'tolerance,' which denotes the act of allowing or permitting something without S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 11 interference or resistance, despite not necessarily approving of, nor agreeing to it. [22] It was undisputed that the Respondent had been cognisant of the Petitioner's adulterous relationship with the Party-Cited since 2009, yet only named the Party-Cited in her Cross-Petition in May 2021, more than a decade later. This prolonged delay in action, despite knowledge of the adultery, suggests a tacit acceptance or tolerance of the situation. Consequently, the Respondent's belated recourse undermined her claim that the marriage had irretrievably broken down due to such adultery. [23] In fact, during cross-examination, the Respondent conceded that despite awareness of the Petitioner's adultery with the Party-Cited, she remained 'bahagia' and continued to cohabit with the Petitioner until

While Respondent's Counsel attempted to downplay the significance of this admission, the meaning of 'bahagia' left little room for interpretation. This deliberate choice to sustain the marital bond despite the adultery had undermined the credibility of the Respondent’s claim against the Party-Cited. [24] Furthermore, the delayed inclusion of adultery allegations in May 2021, long after the Respondent became aware of the Petitioner's adulterous relationship with the Party-Cited, had weakened her position. The failure to act promptly, coupled with continued cohabitation, implied acquiescence or tolerance on the part of the Respondent. Consequently, the Respondent could not credibly assert irretrievable S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 12 marriage breakdown due to adultery by the Petitioner and the Party-Cited. [25] At this juncture, it was imperative to underscore that permitting an individual to cite adultery as the catalyst for the dissolution of his or her marriage, following years of awareness without action, would not only defy principles of justice and equity, but would also contravene the very essence of accountability. [26] I also noted that the Respondent had, as early as November 2011, expressed her intention to divorce the Petitioner in a police report lodged by the Respondent herself. However, she had only initiated divorce proceedings in the Cross-Petition a decade later, and only after the Petitioner had already filed the Divorce Petition. [27] It is a well-established principle that the law does not extend its assistance to those who are passive in their legal pursuits, a maxim that holds true even in proceedings in the Family Court. Hence, the Respondent’s claim against the Party-Cited cannot be allowed. [28] It is interesting to note that in Singapore, section 95(5) of the Singapore Women’s Charter 1961 stipulates that one cannot seek a divorce on grounds of adultery if one continues to live with one’s spouse for six months or more after discovering the adulterous relationship. This provision serves to encourage timely decision-making and prevents individuals from using the knowledge of adultery strategically in the future. However, unfortunately, the Law Reform (Marriage and Divorce) Act does not include a similar limitation. The absence of such S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 13 limitation may lead to several issues, such as prolonged uncertainty, potential manipulation of the situation, and complications in legal proceedings due to outdated evidence. Introducing analogous amendments to the Law Reform (Marriage and Divorce) Act would, therefore, encourage prompt action, prevent manipulation, enhance legal efficiency, and ensure consistency. Although there is no limitation on claims made against a third party pursuant to section 58 of the Law Reform (Marriage and Divorce) Act, it is trite that indolence on the part of any litigant cannot be condoned by the Court. [29] It was also crucial to remind all parties that even if the Court had concluded that the Respondent had found the adultery intolerable, the automatic granting of damages was not guaranteed, as the Court retained discretion in deciding whether damages should be awarded, as indicated by the word ‘may’ in section 58(3) of the Law Reform (Marriage and Divorce) Act, which stipulates: Section 58 – Damages for adultery may be claimed against co-respondent …

Where damages have been claimed against a co-respondent-

if, after the close of the evidence for the petitioner, the court is of the opinion that there is not sufficient evidence against the co-respondent to justify requiring him or her to reply, the co-respondent shall be discharged from the proceedings; or

if, at the conclusion of the hearing, the court is satisfied that adultery between the respondent and co-respondent has been proved, the court may award the petitioner such damages as it may think fit, but so that the award shall not include any exemplary or punitive element. [Emphasis added.] S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 14 [30] As such, in the final analysis, no damages were awarded to the Respondent from the Party-Cited. [31] While my view was that the Respondent was not entitled to claim damages from the Party-Cited due to the Respondent’s tolerance of the adultery between the Petitioner and Party-Cited, I decided against awarding costs to the Party-Cited based on my finding that she was less than forthcoming with the truth. Her testimony was inconsistent, self-serving, illogical, and evasive. [32] It also strained credulity for her to assert ignorance of the Petitioner's marital status, particularly given her close connection to one Sambath Kumar (“PCW1”), who had introduced the Party-Cited to the Petitioner. PCW1, being married to the cousin of the Party-Cited, and a mutual friend of the Petitioner, rendered it highly probable that the Party-Cited was aware of the Petitioner's marriage and family situation. [33] Despite being fully aware of the Petitioner's marital status, the Party-Cited callously ignored this crucial detail and pursued an adulterous relationship with the Petitioner. Such disregard by the Party-Cited for the sanctity of marriage between the Petitioner and Respondent was further compounded by her decision to unlawfully register her marriage to the Petitioner. Such blatant disrespect for established relationships and legal boundaries could not be justified, and must be condemned in the strongest terms, given the gravity of the situation and the impact it had on the Parties involved. S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 15 Whether breakdown of marriage due to Respondent's unreasonable behaviour [34] In support of his averment that it was the Respondent who had caused the irretrievable breakdown of the marriage by her unreasonable behaviour, the Petitioner invoked section 54(1)(b) of the Law Reform (Marriage and Divorce) Act, which states: Section 54 – Proof of breakdown

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- …

that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; [Emphasis added.] [35] The test in determining what is unreasonable behaviour had been expounded by Dunn J in Livingstone-Stallard v. Livingstone-Stallard [1974] 2 All ER 766, where his Lordship posed the following question: Would any right-thinking person come to the conclusion that this husband (wife) has behaved in such a way that the wife (husband) cannot reasonably be expected to live with him, taking into account the whole of the circumstances and the characters and personalities of the parties. [Emphasis added.] S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 16 [36] In his assertion that he could not reasonably be expected to live with the Respondent due to her unreasonable behaviour, the Petitioner made the following allegations, namely, that the:

Respondent had engaged in an adulterous relationship with her brother-in-law, one Jayabalan;

Respondent had pushed the Petitioner’s mother down the stairs, resulting in her eventual demise;

Respondent and Jayabalan had conspired to pay individuals named 'Yogen' and 'Shan' a total of MYR40,000 to assassinate the Petitioner. [37] The Petitioner's assertions lacked merit for several reasons. Primarily, as highlighted by Counsel for the Respondent, these crucial averments were not included in the Petitioner’s pleadings. In fact, there were numerous assertions that were heard of for the very first time, at the trial, during examination-in-chief of the Petitioner, as they were never pleaded. [38] It was imperative to recognise that pleadings serve the fundamental purpose of preventing the opposing party from being caught off-guard or confused. Therefore, facts must be pleaded with precision and clarity to ensure fairness in legal proceedings. This principle is well-established in legal jurisprudence, as articulated by the Federal Court in the case of Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944; [2015] 6 MLJ 10, as elucidated in the following excerpts: S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 17 [29] It is a cardinal rule in civil litigation that parties are bound by their pleadings and are not allowed to adduce facts and issues which they have not pleaded.... [30] The Supreme Court in Lee Ah Chor v. Southern Bank Bhd [1991] 1 CLJ 667; [1991] 1 CLJ (Rep) 239; [1991] 1 MLJ 428, had also emphasised the importance of pleadings and ruled that where a vital issue was not raised in the pleadings it could not be allowed to be argued and to succeed on appeal (see also Ambank (M) Bhd v. Luqman Kamil Mohammed Don [2012] 3 CLJ 551; [2012] MLJU 56 FC). [Emphasis added.] [39] The averments made by the Petitioner in the Divorce Petition regarding the breakdown of the marriage were general in nature, and had made no reference to facts pertaining to the alleged unreasonable behaviour of the Respondent. The relevant paragraphs in the Divorce Petition read:

Pempetisyen telah lama hidup berasingan dengan Responden lebih daripada sepuluh (10) tahun kerana Pempetisyen dan Responden telah tidak bersefahaman didalam kehidupan mereka sejak sepuluh

tahun yang lalu.

Perkahwinan Pempetisyen dan Responden retak dan berpecah-belah akibat daripada kelakuan dan tindakan Responden yang tidak munasabah telah menyebabkan Pempetisyen dan Responden berpisah lebih daripada sepuluh (10) tahun dan tidak dapat mencari jalan penyelesaian untuk memperbaiki kembali ikatan perkahwinan;

Pempetisyen dan Responden tidak mempunyai keserasian dan/ atau ketidaksesuaian sejak sepuluh (10) tahun yang lalu. …

Pempetisyen langsung tidak dapat menghubungi Responden sama sekali sejak perpisahan Pempetisyen dan Responden… S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 18 [40] In accordance with Order 18 rule 7 of the Rules of Court 2012, it is mandated that facts be adequately pleaded. However, upon meticulous examination of the pleadings in the present case, it became apparent that essential material facts were omitted. This failure to plead crucial details not only undermined the integrity of the legal process, but had also unfairly restricted the Respondent’s ability to present her case comprehensively and effectively. [41] Moreover, the allegations made by the Petitioner lacked substantiation. These included severe accusations of adultery between the Respondent and Jayabalan, as well as an alleged conspiracy involving the Respondent and two accomplices to assassinate the Petitioner. In fact, the Petitioner had confused the Court when he persistently referred to Jayabalan as the Respondent’s uncle, when Jayabalan was actually married to the Respondent’s sister. In the final analysis, there was not an iota of evidence to support the Petitioner’s claims. [42] What this Court found particularly egregious was the Petitioner's audacious attempt in 2017 to deceive the Respondent into believing that she and the Petitioner were legally divorced. The undisputed facts reveal a disturbing sequence of events wherein the Respondent was showed a letter dated 20 July 2017 (Pengemaskinian Rekod Perkahwinan) purportedly issued by the Jabatan Pendaftaran Negara. This document purported to ‘confirm’ that the marriage between the Petitioner and Respondent had been ‘dissolved’ by a court order dated 21 November 2011. S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 19 [43] However, upon meticulous scrutiny, it became glaringly evident that the document was nothing short of a sham. Subsequent investigation by the Respondent, which was corroborated by the Court via a letter (Pengesahan Ketulenan Sijil Menjadikan Decree Nisi Mutlak (Penceraian)) dated 7 November 2017, addressed to the Jabatan Pendaftaran Negara, confirmed that the alleged ‘divorce’ obtained by the Petitioner from the Respondent was not valid, as the divorce petition number stated in the letters purportedly issued by Jabatan Pendaftaran Negara corresponded to a decree nisi which was granted to a couple who was unrelated to the present case. [44] When questioned about the dubious provenance of the purported letters issued by the Jabatan Pendaftaran Negara, the Petitioner asserted that he had procured the ‘divorce’ from the Respondent with the assistance of an individual named ‘William Anthonysamy’ (“William”), whom he purportedly remunerated to oversee and finalise such divorce. [45] In my view, this narrative by the Petitioner stretched credibility to its limits and beyond. Firstly, “William” was not even a lawyer, as admitted by the Petitioner himself. It defied common sense to believe that anyone could secure a court-issued divorce order so easily, especially through an unqualified individual. Secondly, and more importantly, the Petitioner failed to produce any evidence substantiating the existence of this “William,” casting serious doubt on whether “William” was anything more than a figment of imagination. Given that ‘William’ was crucial to substantiating the Petitioner’s version of events regarding his alleged ‘divorce’ from the Respondent, the Petitioner’s failure to S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 20 produce William as a witness led to the invocation of an adverse inference, as stipulated under section 114(g) of the Evidence Act 1950. [46] The implausibility of the Petitioner's explanation had cast grave doubts on the authenticity of his claims. Despite having ‘William’s’ identification number and place of employment, the Petitioner was unable to furnish tangible evidence or provide credible testimony from ‘William’ regarding the alleged Petitioner’s divorce from the Respondent. This had undermined the veracity of the Petitioner’s assertions. By invoking an adverse inference, the Court was compelled to also draw an adverse conclusion against the Petitioner due to his conspicuous failure to substantiate his narrative with concrete evidence. [47] Such deceitful machinations on the part of the Petitioner not only betrayed the trust and integrity of his marriage to the Respondent, but also flagrantly undermined the sanctity of the legal system. By resorting to such deception, in a vain attempt to manipulate the course of legal proceedings, the Petitioner exhibited a reprehensible disregard not only for his marriage to the Respondent, but also for the principles of honesty and justice. [48] This calculated act of deceit inflicted immeasurable emotional anguish upon the Respondent, compounded by the grievous violation of her rights and dignity. The Court could not countenance such egregious misconduct and was duty-bound to impose appropriate measures to rectify the injustices perpetrated. S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 21 [49] In the final analysis, I had to agree with the Respondent's contention that the Petitioner had engaged in behaviour aimed at deceiving the Respondent into believing that she was divorced. This ploy not only sought to evade the Petitioner's obligations regarding spousal maintenance and asset division, but also underscored a pattern of deception and dishonesty throughout his testimony during the trial. [50] Furthermore, during the course of the proceedings, it came to light that the Petitioner, while still legally married to the Respondent, willfully and knowingly contracted a ‘marriage’ with the Party-Cited, officially registering it with the Jabatan Pendaftaran Negara in February 2012. This egregious act not only constituted a grave deception perpetrated against the state entity, namely, the Jabatan Pendaftaran Negara, but also attracted the provision of sections 5 and 7 of the Law Reform (Marriage and Divorce) Act, as well as section 494 of the Penal Code, which deal with the offence of bigamy. The provisions read: Law Reform (Marriage and Divorce) Act 1976 Section 5 – Disability to contract marriages otherwise than under this Act

Every person who on the appointed date is lawfully married under any law, religion, custom or usage to one or more spouses shall be incapable, during the continuance of such marriage or marriages, of contracting a valid marriage under any law, religion, custom or usage with any other person, whether the first mentioned marriage or the purported second mentioned marriage is contracted within Malaysia or outside Malaysia. Section 7 – Offence

Any person lawfully married under any law, religion, custom or usage who during the continuance of such marriage purports to contract a marriage under any law, religion, custom or usage in contravention of section 5 shall be deemed to commit the offence of marrying again during S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 22 the life-time of husband or wife, as the case may be, within the meaning of section 494 of the Penal Code [Act 574]. ******** Penal Code Section 494 – Marrying again during the life time of husband or wife Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of it taking place during the life of such husband or wife and whether such marriage has taken place within Malaysia or outside Malaysia, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine. [51] By clandestinely entering into a second ‘marriage’ with the Party-Cited, while still married to the Respondent, the Petitioner not only inflicted emotional distress and betrayal upon the Respondent, but also brought to the forefront the provisions containing offences against the legal framework governing marital relations. Such conduct warranted severe censure and underscored the imperative for judicial intervention to rectify the injustices perpetrated. [52] In my evaluation of the Petitioner, I found instructive the words of Gillen J in Sean Thornton v. Northern Ireland Housing Executive [2010] NIQB 4, which was adopted in McAllister v. Campbell [2014] NIQB 24: [12] Credibility of a witness embraces not only the concept of his truthfulness i.e. whether the evidence of the witness is to be believed but also the objective reliability of the witness i.e. his ability to observe or remember facts and events about which the witness is giving evidence. [13] In assessing credibility the court must pay attention to a number of factors which, inter alia, include the following: • The inherent probability or improbability of representations of fact S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 23 • The presence of independent evidence tending to corroborate or undermine any given statement of fact • The presence of contemporaneous records • The demeanour of witnesses e.g. does he equivocate in cross examination • The frailty of the population at large in accurately recollecting and describing events in the distant past. • Does the witness take refuge in wild speculation or uncorroborated allegations of fabrication • Does the witness have a motive for misleading the court • Weigh up one witness against another [53] The test as to credibility of a witness is: 'how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case'. This was established by the Federal Court in Md Zainudin Bin Raujan v. Public Prosecutor [2013] 3 MLJ 773, in the words of Hasan Lah FCJ: It is trite that the inherent probability or improbability of a fact in issue must be the prime consideration in deciding whether a witness is credible or not. It is the duty of the court to sieve the evidence and to ascertain what are the parts of the evidence tending to incriminate the accused which he accepted. In Public Prosecutor v. Dato' Seri Anwar bin Ibrahim (No 3) [1999] 2 CLJ 215; [1999] 2 MLJ 1 at p 79 Augustine Paul J (as he then was) summed up the tests for determining the credibility of a witness as follows: The Privy Council has stated that the real tests for either accepting or rejecting the evidence of a witness are how consistent the story is with itself, how it stands the test of cross-examination, and how far it fits in with the rest of the evidence and the circumstances of the case (see Bhojraj v. Sitaram [1936] AIR PC 60)....It must, however, be observed that being unshaken in cross-examination is not per se an all-sufficient acid test of credibility. The inherent probability or improbability of a fact in issue must be the prime consideration (see Muniandy & Ors v. Public Prosecutor [2016] CLJU 592; [2016] 1 LNS 592; [1966] 1 MLJ 257)... S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 24 [Emphasis added] [54] During cross-examination, the Petitioner exhibited evasive behaviour. When confronted with inconsistencies, he became confrontational and discourteous towards Respondent's Counsel, necessitating intervention from the Court. Additionally, it was evident that he harboured a motive to deceive the Court as well as the Respondent. In my view, the Petitioner had resorted to baseless allegations in an attempt to shift blame onto the Respondent for the breakdown of the marriage, as he was unable to cite his own adultery as grounds for divorce. [55] The only evidence that purportedly supported the Petitioner’s narrative was the testimony of the Party-Cited, and a witness called on her behalf, PCW1, as alluded to earlier. However, the veracity of such testimony remained dubious. As previously indicated, the Court found the testimony of the Party-Cited unconvincing. It was evident that she was fully aware of the Petitioner's marital status but displayed a blatant disregard for its significance. Furthermore, her testimony during cross-examination revealed inconsistencies, notably vacillating between assertions of the Petitioner's financial support and claims of self-sufficiency. [56] Regarding PCW1, it was pertinent to note that he was present in the courtroom throughout the proceedings when both the Petitioner and the Party-Cited provided their testimony. Despite the presence of PCW1 being readily observable, neither Counsel for the Petitioner, nor S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 25 Counsel for the Party-Cited had disclosed this fact to the Court. Their professed ignorance of PCW1's presence raised questions about the transparency and integrity of his evidence. [57] In drawing my conclusions about the testimony of PCW1, I sought insight from precedents such as Mohamed Nor v Public Prosecutor [1939] 1 MLJ 305 and PP v. Dato’ Seri Anwar Ibrahim (No 3) [1999] 2 MLJ 1. Notably, Augustine Paul J (as he then was), in the latter case, articulated a principle that resonated with the present circumstances, namely where witnesses, other than litigants themselves, remain in Court before testifying: Local cases have taken the view that the fact that a witness remains in court during the progress of a trial is no ground for refusing to allow him to give evidence, although it may reduce the weight to be attached to such evidence as may be given (see Edwards v. East India Co [1840] 3 Ky 6; Mohamed Nor v. PP [1939] MLJ 305). [Emphasis added.] [58] Hence, I found that the weight of the testimony of PCW1 had been compromised. In fact, he merely parroted the testimony of the Petitioner which he had the benefit of listening to, and as such, provided no assistance at all to this Court in arriving at the finding of crucial facts. [59] The Petitioner had also demonstrated a profound lack of regard for the Respondent by leveling unfounded accusations against her. His actions, which included abandoning her for another woman, evicting her from their Matrimonial Home, and tarnishing her reputation with S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 26 baseless claims of adultery with her sister's husband, and even an accusation of attempted murder, had exacerbated the situation. [60] The Petitioner asserted that the Respondent had voluntarily left the Matrimonial Home and was not forced to. However, I found the Petitioner’s account unconvincing for several reasons. Firstly, it is highly improbable that the Respondent would have left on her own accord given her lack of financial support and the absence of alternative accommodation. The Respondent was financially dependent on the Petitioner, making it unlikely for her to leave without means to support herself. Furthermore, despite being aware of the Petitioner’s adulterous relationship with the Party-Cited, the Respondent continued to reside in the Matrimonial Home, which suggests she had no intention to leave voluntarily. [61] At this juncture, I must also emphasise that the Respondent was forthright and consistent throughout her testimony. Her answers were direct and free of contradictions, which bolstered the credibility of her statements. Furthermore, she was candid about her feelings, openly admitting that she felt 'bahagia' (content) despite discovering the Petitioner’s adulterous relationship with the Party-Cited. I had no grounds for disbelieving her when she claimed that she was forced by the Petitioner to leave the Matrimonial Home. Whether Petitioner’s conduct was fraudulent [62] This Court had to also address if the Petitioner's conduct, in the whole narrative, was fraudulent, as that was the core of the Respondent’s case. S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 27 [63] The concept of fraud is inherently complex. While it is a broad term to define, it encompasses numerous examples and manifestations that are difficult to exhaustively enumerate. [64] Fraud has been described to include all 'acts, omissions, and concealments which involve a breach of a legal or equitable duty, trust or confidence, justly reposed, and are injurious to another, or by which an undue or unconscientious advantage is taken of another. All surprises, tricks, cunning, dissembling, and other unfair ways used to cheat anyone are considered fraud. Fraud in all cases implies a wilful act on the part of anyone, whereby another is sought to be deprived, by illegal or inequitable means, of what he is entitled to’: per Jeffrey Tan FCJ in Letchumanan Chettiar Alagappan (As Executor To SL Alameloo Achi (Deceased)) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418; [2017] 4 MLJ 697. [65] It was also fundamental to note that the standard of proving fraud is on a balance of probabilities, and not as high as that required in criminal cases, that is beyond a reasonable doubt, as explained in Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 and Letchumanan Chettiar Alagappan @ L Allagappan (As Executor to SL Alameloo Achi Alias Sona Lena Alamelo Acho, Deceased) & Anor v Secure Plantation Sdn Bhd [2017] 4 MLJ 697. [66] In my view, the Petitioner committed fraud on several levels. He first engaged in a bigamous customary marriage with the Party-Cited in 2010, a fact both the Petitioner and Party-Cited never disputed. This act alone constituted deception and dishonesty, bordering on criminal S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 28 behaviour, as stipulated in section 7 of the Law Reform (Marriage and Divorce) Act. [67] The Petitioner proceeded to register his ‘marriage’ with the Party-Cited based on his fraudulent claim that he had divorced the Respondent, when in actual fact, he had not. It was later discovered that the Petitioner had used a divorce order that belonged to another couple, thereby defrauding not only the Respondent, but the Jabatan Pendaftaran Negara as well. [68] Additionally, sometime in 2017, in his attempt to convince the Respondent that the dissolution of their marriage had been finalised in 2011, the Petitioner showed the Respondent a letter dated 20 July 2017 (Pengemaskinian Rekod Perkahwinan), purportedly issued by Jabatan Pendaftaran Negara. [69] In my view, the Petitioner’s narrative about ‘William’, who had supposedly procured the divorce on his behalf, was a fabrication. To convince this Court of his allegation that it was ‘William’ who had deceived him regarding the ‘divorce’ from the Respondent, the Petitioner adduced, as evidence, a police report that he had lodged in October 2018. [70] Firstly, the police report lodged by the Petitioner held no weight as it was a self-serving statement. According to section 157 of the Evidence Act, a police report made to corroborate an incident must meet the specific criteria in the provision, which reads: S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 29 Section 157 - Former statements of witness may be proved to corroborate later testimony as to same fact. In order to corroborate the testimony of a witness, any former statement made by him whether written or verbal, on oath, or in ordinary conversation, relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved. [Emphasis added]. [71] The words 'at or about the time when the fact took place' found in section 157 of the Evidence Act has been interpreted in PP v. Teo Eng Chan & Ors [1988] 1 CLJ 425; [1988] 2 CLJ (Rep) 793; [1988] 1 MLJ 156, PP v. Paneerselvan [1990] 2 CLJ 833; [1990] 2 CLJ (Rep) 804; [1991] 1 MLJ 106, and PP v. Mohamed Terang Amit [1999] 5 CLJ 156; [1999] 1 MLJ 154, to mean 'the first reasonable opportunity' or 'as speedily as could reasonably be expected.' [72] In the present case, the Petitioner claimed to have received a letter from Jabatan Pendaftaran Negara in August 2018 but only lodged the police report regarding ‘William’ in October 2018. This delay failed to adhere to the principle of contemporaneity, which requires that such reports be made 'at or about the time when the fact took place' to qualify as contemporaneous documents. Consequently, the delayed police report, inherently self-serving, was significantly undermined in its credibility and effectiveness. Its value as evidentiary material was therefore negligible. In fact, there was a high probability that the Petitioner lodged the police report as an afterthought to extricate himself from the self-induced conundrum he had found himself in pursuant to the fraudulent venture he had embarked upon. S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 30 [73] I also had to consider that when filing the Divorce Petition, the Petitioner knowingly served the documents to the Respondent at the Matrimonial Home, despite being aware that the Respondent no longer resided there. This was yet another attempt to deceive the Respondent and evade his responsibilities as a husband. [74] Considering all the facts and circumstances of the case, it was evident that the Petitioner’s conduct was indeed fraudulent. He had perpetrated fraud not only against the Respondent but also against the Jabatan Pendaftaran Negara and the Court. [75] In my final analysis, it was evident that it was the unreasonable behaviour of the Petitioner, and not the Respondent, that had caused the irretrievable breakdown of the marriage. Whether Respondent had fulfilled the ‘means and needs’ test [76] Emphasising the importance of section 78 of the Law Reform (Marriage and Divorce) Act in addressing spousal maintenance, it was crucial to underscore the principle of examining the 'means and needs' of both Parties involved. This provision mandates a thorough evaluation, not only of the Petitioner's financial capabilities but also those of the Respondent. [77] The Respondent had dedicated her married life to being a wife to the Petitioner and mother to his children. Since leaving the Matrimonial Home in 2017, the Respondent was left to fend for herself, facing considerable financial strain. She now contended that she was entitled to accumulated arrears in spousal maintenance totalling MYR90,000, S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 31 accruing at a monthly rate of MYR2,500, over 36 months, as well as an ongoing monthly spousal maintenance of MYR2,500. The arrears in spousal maintenance were claimed pursuant to section 86 of the Law Reform (Marriage and Divorce) Act, which reads: Section 86 – Recovery of arears of maintenance

Subject to subsection (3), arrears of unsecured maintenance, whether payable by agreement or under an order of court, shall be recoverable as a debt from the defaulter and, where they accrued due before the making of a receiving order against the defaulter, shall be provable in his or her bankruptcy and, where they accrued due before his or her death, shall be a debt due from his or her estate.

Subject to subsection (3), arrears of unsecured maintenance which accrued due before the death of the person entitled thereto shall be recoverable as a debt by the legal personal representatives of such person.

No amount owing as maintenance shall be recoverable in any suit if it accrued due more than three years before the institution of the suit. [Emphasis added.] [78] The Petitioner argued that the Respondent was not entitled to arrears in spousal maintenance as it was not specifically pleaded. I am mindful that Parties are bound by their pleadings as alluded to earlier, but this argument was untenable in the present case, since the Petitioner was neither prejudiced nor taken by surprise by the Respondent's claim for arrears in spousal maintenance. [79] On this point, I was guided by the Federal Court in KEP Mohamed Ali v. KEP Mohamed Ismail [1980] CLJU 169; [1980] 1 LNS 169, in the following passage by Raja Azlan CJ (Malaya) (as he then was), which S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 32 was adopted subsequently by a plethora of cases including Ang Koon Kau & Anor v. Lau Piang Ngong [1985] CLJ Rep 24; [1984] 2 MLJ 277: As one of the objects of modern pleadings is to prevent surprise, we cannot for one moment think that the defendant was taken by surprise. To condemn a party on a ground of which no material facts have been pleaded may be as great a denial of justice as to condemn him on a ground on which his evidence has been improperly excluded. [Emphasis added.] [80] I also drew guidance from the Court of Appeal case of Bank Bumiputra Malaysia Bhd v. Emas Bestari Sdn Bhd [2014] 1 CLJ 316; [2014] 2 MLJ 316, where in following the earlier Federal Court case of Superintendent of Lands and Surveys, 4th Division & Anor v. Hamit Matusin & Ors [1994] 3 CLJ 567, it was stated by Abdul Wahab Patail JCA: The objection that a matter has not been pleaded is not the ground for the objection. It is a general description of the nature of the objection. But whether the objection is sustainable is decided by the grounds for the objection. Such grounds arise from the nature of the matter. Hence, if the matter raised is only a question of law, it need not be pleaded. Even if the matter is a question of fact, but the evidence relied upon in respect of it are already admitted in evidence before the court, which means the other party is not taken by surprise. Protestations or affectations of surprise "because it was not pleaded" in such case holds no merit. Only if it is shown that the matter raised relied upon facts not pleaded and therefore the party making the objection did not have the opportunity of addressing the truth and accuracy of description of that fact, may the objection hold merit and be sustained [Emphasis added.] S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 33 [81] Based on the above authorities, I was of the view that the Petitioner was neither caught by surprise nor prejudiced by the claim for arrears in spousal maintenance. In fact, the Petitioner had not only admitted to neglecting his financial responsibilities toward the Respondent since 2017, but audaciously avowed during cross-examination that he bore no obligation nor responsibility to provide financially for the Respondent post-separation, asserting that she had vacated the Matrimonial Home on her own volition. He had no qualms in admitting that he had refused to fulfill his responsibilities as a husband to maintain the Respondent since 2017. This blasé attitude was indicative that he was aware of the responsibilities that he had evaded, but remained impervious and unruffled by his conduct. [82] Furthermore, a scrutiny of the pleadings would indicate that the Respondent did in fact plead for ‘lain-lain perintah yang difikirkan adil, suaimanfaat oleh Mahkamah Yang Mulia ini,’ which phrase provided the Court discretion to grant relief, as long as it was reasonable, just, and related to the nature of the relief sought. Claiming for arrears in spousal maintenance forms part of claiming for spousal maintenance, which the Petitioner knew he had not made payment towards. [83] I, therefore, agreed with the Respondent’s assertion regarding the legitimacy of the accumulated arrears in spousal maintenance, given that it was the Petitioner who had effectively caused the Respondent to leave the Matrimonial Home back in 2017, necessitating her dependence on her son and then her sister. S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 34 [84] With regard to the Respondent’s claim for monthly spousal maintenance, I had ordered the Petitioner to promptly remit a monthly sum of MYR2,500 to the Respondent's designated account no later than the seventh day of each month. This was fortified by the fact that the Court is empowered, pursuant to section 77 of the Law Reform (Marriage and Divorce) Act, to order a man to pay maintenance to his wife or former wife upon granting a decree of divorce. [85] Although the Petitioner contended that the Respondent had failed to substantiate her monthly expenses, in my view, it was abundantly clear that such substantiation was unnecessary. The Respondent attested that, throughout the marriage, the Petitioner had consistently allocated a monthly sum ranging from MYR3,000 to MYR5,000 to cover family expenses, inclusive of those for the Children. Despite the Petitioner's denial, the Court remained unconvinced with the Petitioner’s narrative, and concluded that the Petitioner had been maintaining the Respondent at least until 2017. [86] Furthermore, the amount of monthly spousal maintenance mandated for the Petitioner to provide was by no means exorbitant. The sum of MYR2,500 barely scratched the surface of basic sustenance for the Respondent, considering that she had to cover utilities, sustenance, attire, and medical expenses, if any. [87] Additionally, I took the view that it was the Petitioner's conduct that had precipitated the dissolution of the marriage. He had exhibited blatant disregard for his matrimonial duties by falsely relying on letters purportedly from Jabatan Pendaftaran Negara, causing the S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 35 Respondent to leave the Matrimonial Home, ceasing financial support to the Respondent, and instead supporting the Party-Cited and his offspring with her. [88] Moreover, due consideration must be given to the Respondent's status as a homemaker throughout her entire adult life, reliant upon the Petitioner for financial stability. After 28 years of marriage, the Petitioner had callously discarded her and even endeavored to extricate himself from the marriage deceitfully to evade any form of financial obligation to her. [89] In light of these compelling circumstances, an allocation of MYR2,500 was not only equitable, but eminently reasonable. Division of matrimonial assets [90] The task of dividing matrimonial assets is prescribed by section 76 of the Law Reform (Marriage and Divorce) Act, which reads: Section 76 – Power of court to order division of matrimonial assets

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.

In exercising the power conferred by subs. (1) the court shall have regard to:

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; S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 36 (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;

any debts owing by either party which were contracted for their joint benefit;

the needs of the minor children, if any, of the marriage;

the duration of the marriage; [91] I was also guided by the Court of Appeal in Annathurai Venkidasalam v Vani Welluven [2023] CLJU 2191 where Lim Chong Fong JCA had opined in the following passage: … [18] In re-visiting s. 76 LRA, and we make the following observations:

Albeit it is stated in s.76(2) LRA that the court shall incline towards equality, it is however not mandatorily 50%-50% in dividing the matrimonial property and assets;

(ii) The division is at the discretion of the court but the court must take into account the factors listed in s. 76(2)(a) to (e) LRA;

(iii) There is no prohibition on the court to also take into account other relevant or appropriate circumstances because the aforesaid factors have not been expressly specified in s. 76(1) and (2) LRA as exclusive and/or exhaustive, see Dean v. Wiesengrund [1955] 2. Q.B. 120 and S (a minor) v. Special Education Needs Tribunal [1996] 1 All ER 171; and

(iv) The division is not an exercise of strict financial accounting but a fair and equitable distribution of the matrimonial property and assets as determined by the court. [19] Therefore, there is no strait-jacket solution. Each and every case has to be determined on its peculiar facts and circumstances. [Emphasis added.] S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 37 [92] In my view, the classification of assets as matrimonial cannot solely be determined by registered ownership of the parties to the marital dispute. Drawing insight from the pertinent case of Ching Seng Woah v Lim Shook Lin [1997] 1 MLJ 109, Gopal Sri Ram JCA (as he then was) defined ‘matrimonial assets’. In that case, he outlined the concept beyond mere ownership, emphasising factors that contribute to the matrimonial assets. The following passage from the case served as a guiding principle in understanding the broader scope of matrimonial assets: The Act does not define what matrimonial assets are. We think that during the subsistence of a marriage the expression refers to the matrimonial home and everything which is put into it by either spouse with the intention that their home and chattels should be a continuing resource for the spouses and their children to be used jointly and severally for the benefit of the family as a whole. It matters not in this context whether the asset is acquired solely by the one party or the other or by their joint efforts. Whilst the marriage subsists these assets are matrimonial assets. Such assets could be capital assets. The earning power of each spouse is also an asset. [Emphasis added] Whether Respondent entitled to equal division of value of immoveable properties [93] With regard to the division of Matrimonial Assets, the Respondent had claimed equal division of the following immoveable properties that the Petitioner held in his sole name:

A property known as Villa Laman Tasik (“the Matrimonial Home”) held in Petitioner’s name. Alternatively, the Respondent claimed for the Matrimonial Home to be transferred wholly to her; S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 38

(ii) A property known as the Bandar Sri Permaisuri Property, which was a four-storey commercial building from which the Petitioner claimed to receive a monthly rental income of between MYR6,000 and MYR7,000. Additionally, the Petitioner operates his restaurant on these premises; and

(iii) A property known as the Perindustrian Trisegi Property, which the Petitioner claimed to receive a monthly rental of MYR2,000. [94] The Petitioner contended that the Respondent was not entitled to any part of the immoveable properties as they were all registered in his name. [95] The Petitioner further alleged that he had invested MYRM900,000 in a restaurant for the benefit of Respondent and that that should suffice as her entitlement to division of matrimonial assets. I found this averment unacceptable as not only was it not pleaded, but there was no evidence whatsoever substantiating the same. During cross-examination, when the Petitioner was asked why this fact was not pleaded in the Divorce Petition, he blamed his lawyer for the omission. [96] In determining the division of the immoveable properties that comprised matrimonial assets, I ordered a complete transfer of the Matrimonial Home to the Respondent within 60 days of the date this decision was delivered (19 March 2024) for the following reasons. Firstly, despite the Petitioner's assertion of residing at the Matrimonial Home, his address that was listed in the Divorce Petition was the Perindustrian Trisegi Property. This inconsistency suggested a lack of S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 39 veracity in the Petitioner's testimony. Consequently, I reasoned that since the Petitioner did, in fact, reside at the Perindustrian Trisegi Property, it logically followed that the Respondent should rightfully be granted ownership of the Matrimonial Home. [97] Additionally, I ruled that both the Bandar Sri Permaisuri Property and Perindustrian Trisegi Property should remain in the possession of the Petitioner without any division awarded to the Respondent. These properties are currently utilised by the Petitioner to generate income, and it would only be fair for the Court to allow the Petitioner to continue these revenue-generating ventures, especially since the Petitioner was ordered to pay monthly as well as arrears in spousal maintenance. Given that the Petitioner would retain ownership of the Bandar Sri Permaisuri Property and Perindustrian Trisegi Property, it was fair and equitable for the Respondent to be granted the Matrimonial Home. [98] I had also noted that the Parties shared a marriage of 28 years before the Respondent was caused to leave the Matrimonial Home. Despite her non-monetary contributions to the upkeep of the Matrimonial Home, her pivotal role in sustaining the household and fostering familial bonds throughout the years cannot be overlooked. It was imperative for me to weigh these factors, especially in light of my decision not to divide the Bandar Sri Permaisuri Property and Perindustrian Trisegi Property. [99] An additional factor I considered in the division of matrimonial assets was the Petitioner's fraudulent conduct, as previously mentioned, in causing the Respondent to vacate the Matrimonial Home by falsely S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 40 claiming that they were divorced. This consideration aligns with the Court of Appeal's decision in Annathurai Venkidasalam v Vani Welluven, which stated that the Court is not prohibited from taking into account relevant or appropriate circumstances beyond those specified in section 76(1) and (2) of the Law Reform (Marriage and Divorce) Act. In the present case, the Respondent had been deprived of a roof over her head for the last seven years, causing her to seek shelter with family members. [100] Hence, it was fair and equitable for the Respondent to be granted the whole share of the Matrimonial Home. It was also important to state, at this juncture, that the Petitioner’s Counsel had requested a 60-day period to allow the Petitioner to effect the transfer of the Matrimonial home. In my view, that was a reasonable request. Conclusion [101] In conclusion, drawing upon the aforementioned rationales and having undertaken a thorough examination and discerning evaluation of the comprehensive evidence before this Court, in conjunction with the submissions put forth by all parties, the divorce was granted and the decree nisi was made absolute immediately. [102] Besides the Matrimonial Home which was awarded fully to the Respondent, the Respondent was also entitled to receive spousal maintenance, which included three years of arrears amounting to MYR90,000 and ongoing monthly maintenance of MYR2,500 to be deposited into the Respondent’s bank account by the seventh of every S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 41 month. However, no damages were awarded to the Respondent from the Party-Cited. Costs of the proceedings in the amount of MYR40,000 (subject to allocatur) were to be borne by the Petitioner. Dated: 31 May 2024 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner – Parvinder Singh Doal; Messrs Pritam Singh Doal & Co For the Respondent – SS Seelan; Messrs SS Seelan & Associates For the Party-Cited – Mg Sawmee Ullah Bin Nawzumeah; Messrs Najumuddin & Sawmee U Law Office S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 42 Cases referred to: ➢ Ang Koon Kau & Anor v. Lau Piang Ngong [1985] CLJ Rep 24; [1984] 2 MLJ 277 ➢ Annathurai Venkidasalam v Vani Welluven [2023] CLJU 2191 ➢ Bank Bumiputra Malaysia Bhd v. Emas Bestari Sdn Bhd [2014] 1 CLJ 316; [2014] 2 MLJ 316 ➢ Ching Seng Woah v Lim Shook Lin [1997] 1 MLJ 109 ➢ Dr Shameni Pillai PB Rajedran v Dr S Arulselvam Sanggilly & Anor [2011] 6 CLJ 782 ➢ KEP Mohamed Ali v. KEP Mohamed Ismail [1980] CLJU 169; [1980] 1 LNS 169 ➢ Letchumanan Chettiar Alagappan (As Executor To SL Alameloo Achi (Deceased)) & Anor v. Secure Plantation Sdn Bhd [2017] 5 CLJ 418; [2017] 4 MLJ 697 ➢ Livingstone-Stallard v. Livingstone-Stallard [1974] 2 All ER 766 ➢ McAllister v. Campbell [2014] NIQB 24 ➢ Md Zainudin Bin Raujan v. Public Prosecutor [2013] 3 MLJ 773 ➢ Mohamed Nor v PP [1939] CLJU 55 ➢ PP v. Dato’ Seri Anwar Ibrahim (No 3) [1999] 2 CLJ 215 ➢ PP v. Mohamed Terang Amit [1999] 5 CLJ 156; [1999] 1 MLJ 154 ➢ PP v. Paneerselvan [1990] 2 CLJ 833; [1990] 2 CLJ (Rep) 804; [1991] 1 MLJ 106 ➢ PP v. Teo Eng Chan & Ors [1988] 1 CLJ 425; [1988] 2 CLJ (Rep) 793; [1988] 1 MLJ 156 ➢ Samuel Naik Siang Ting v. Public Bank Bhd [2015] 8 CLJ 944; [2015] 6 MLJ 10 ➢ Sean Thornton v. Northern Ireland Housing Executive [2010] NIQB 4 S/N cq6Qc4ly7kqLz3FrLvn3w 31 May 2024 ……………………………………………………………………………………………… ……………………………………………………………………………………………… 43 ➢ Sinnaiyah & Sons Sdn Bhd v Damai Setia Sdn Bhd [2015] 5 MLJ 1 ➢ Superintendent of Lands and Surveys, 4th Division & Anor v. Hamit Matusin & Ors [1994] 3 CLJ 567 ➢ V Sandrasagaran Veerapan Raman v. Dettarassar Velentine Souvina Marie [1999] 5 CLJ 474 Legislation referred to: ➢ Evidence Act 1950 – sections 114(g), 157 ➢ Law Reform (Marriage & Divorce) Act 1976 – sections 5, 7, 54, 58, 76, 77, 78, 86 ➢ Penal Code – section 494 ➢ Rules of Court 2012 – Order 18 rule 7 ➢ Singapore Women’s Charter 1961 – section 95(5) S/N cq6Qc4ly7kqLz3FrLvn3w