Dr. Shivani A/P Nagandran v Dr. Raj Kumar A/L S. Maharajah (BA-33-503-07/2023)

“Damages for adultery may be claimed against co-respondent 5

On a petition for divorce in which adultery is alleged, or in the 6 answer of a party to the marriage praying for divorce and alleging 7 adultery, the party shall make the alleged adulterer or adulteress a co- 8 respondent, unless excused by the court on special grounds from 9 doing so.” 10 11 [16] The issues raised in this application also required this Court to 12 examine and apply the provisions of Rule 11 of the DMPR 1980 which 13 reads as follows: 14 15 “11 Parties 16

Subject to paragraph (2), where a petition alleges that the 17 respondent has committed adultery, the person with whom the 18 adultery is alleged to have been committed shall be made a co- 19 respondent in the cause unless- 20

that person is not named in the petition and, the petition 21 contains a statement that his or her identity is not known 22 to the petitioner; or 23

the court otherwise directs.” 24 25 [17] To navigate this application, I also found it necessary to refer to Rule 26 15 of the DMPR 1980 which provides as follows: 27 28 “15 Supplemental petition and amendment petition 29

A petition may be amended without leave before it is served but 30 only with leave after it has been served.

Unless otherwise directed, a copy of a supplemental or amended 32 petition. Together with a copy of the order (if any) made under this Rule 33 shall be served on every respondent and co-respondent named in the 1 original petition or in the supplemental or amended petition.” 2 3 [18] The PW cites the following grounds for supporting her application:

it is impossible for Cherry Hamdi to be condemned in 5 damages in respect of the alleged adultery as she is only a 6 housemaid;

(ii) the PW has no knowledge of Cherry Hamdi’s whereabouts 8 since the PW separated from the RH and left the matrimonial 9 home;

(iii) Cherry Hamdi does not have the financial ability to pay the 11 damages claimed in connection with the alleged adultery;

(iv) the RH has full control of Cherry Hamdi;

the WhatsApp messages set out at length in the Divorce 14 Petition speaks for itself;

(vi) the PW does not wish to incur additional costs. 16 17 [19] It was sought alternatively that if the Court did not agree with any of 18 the aforesaid reasons, the PW wished to seek leave from the Court to 19 amend the Divorce Petition to add the Co-Respondent. 20 21 [20] Section 58 of the LRA 1976 makes it mandatory upon the petitioner 22 when citing adultery to make the alleged adulterer or adulteress a co- 23 respondent in a divorce petition. The party is excused from doing so if 24 special grounds is shown. 25 26 [21] As I have highlighted earlier the crucial factor for the consideration 27 of the Court is whether the PW has shown special grounds to support the 28 instant application. 29 30 [22] There is no dispute that the Divorce Petition was filed on 10.7.2023 1 and this particular application was filed 7 months later on 6.2.2024. No 2 satisfactory reasons were provided as to the cause of the delay in filing 3 this application. The PW was aware of all the salacious details of the 4 adultery and the identity of Cherry Hamdi from as far back as 2018. She 5 filed the present petition 5 years later in 2023. There is clearly an undue 6 delay on the part of the PW giving rise to some degree of acquiescence 7 on the part of the PW. There was no credible explanation as to why the 8 PW did not deem it fit to make the application as soon as possible. 9 10 [23] It is crucial to be reminded that even if there is no limitation on claims 11 made against an adulterer or adulteress pursuant to section 58 of the LRA 12 1976, it shall be clear that indolence on the part of the party must not be 13 condoned by the Court. 14 15 [24] It is generally an excepted principle that a party is bound to bring 16 their claims without undue delay and the law is inclined to refuse its aid to 17 stale demands especially where the said party has slept on their rights 18 and where they are passive in the pursuit of their legal rights. This maxim 19 holds true even in proceedings brought in the Family Court. 20 21 [25] Premised on the above view, it is the finding of this Court that the 22 PW has been indolent in pursuing her rights within a reasonable time. 23 Hence the PW’s application cannot be allowed. 24 25 [26] As for the relief sought by the PW, it is not disputed that the identity 26 of Cherry Hamdi was known to the PW since inception. She was the family 27 domestic helper for 7 years since 2015 and the PW knew her personally, 28 had interacted with her and had known of her whereabouts until the time 29 she left the matrimonial home. 30 [27] The PW now claims that she has no knowledge of the whereabouts 1 of Cherry Hamdi. The PW has however not shown what were the steps 2 she took to locate Cherry Hamdi since the date of filing the Divorce 3 Petition. There is no positive averment that she is no longer within the 4 jurisdiction of this country. The PW seems to have taken the easy way out 5 by ‘throwing in the towel’ without even making any concerted attempts to 6 locate Cherry Hamdi. I tend to agree with the RH’s contention that not 7 being able to locate a person is not a reasonable ground to not name them 8 as a party. There are many tried and tested methods of effecting service 9 of court papers on another party. 10 11 [28] The PW has also contended that Cherry Hamdi will not be able to 12 pay the damages for adultery in view of the fact that she is a domestic 13 helper. It was also contended that the RH has full control over Cherry 14 Hamdi. From my examination of the affidavit in support the PW has not 15 shown the impecuniosity of Cherry Hamdi as a matter of fact. There was 16 no evidence produced to substantiate such an allegation. It would appear 17 that the PW had arrived at her own conclusions on the assumption that 18 since Cherry Hamdi is a domestic helper hence she will not be able to pay 19 the damages for adultery. The PW has not furnished any proof to support 20 this allegation. I find these contentions amount to nothing but bare 21 assertions unaccompanied by any documentary evidence and in any 22 event these cannot amount to special grounds to waive naming Cherry 23 Hamdi as a party. 24 25 [29] Similarly the PW’s allegation that the RH has full control over Cherry 26 Hamdi is vague and lacks specificity. The PW has not explained her 27 reasons for having this opinion. 28 29 [30] The PW drew the Court’s attention to the WhatsApp messages set 1 out at length in the Petition which she contends speaks for itself, and 2 therefore the inclusion of Cherry Hamdi is unnecessary. 3 4 [31] This Court agreed with the proposition that the PW has the legal 5 burden to prove adultery by virtue of section 103 of the Evidence Act, 1950 6 as it is she who wants the Court to believe in the existence of this fact. 7 8 [32] I have noted that the alleged Facebook messages are dated in the 9 year 2018 while the Divorce Petition was filed 5 years later in July 2023. 10 11 [33] It is the view of this Court that even if the PW has grounds to believe 12 that the messages show strong evidence that the RH had committed 13 adultery with Cherry Hamdi and this is the cause of the breakdown of the 14 marriage, the PW would still have to name Cherry Hamdi as the Co- 15 Respondent in the petition when it was filed in July 2023 as the provisions 16 of Section 58 of the LRA are mandatory. The only exception is if there are 17 special grounds that justify her from having to do so. The burden is on the 18 PW to do so which warrant this Court to exercise its discretion to allow the 19 application. 20 21 [34] I have considered but am unpersuaded by the PW’s justifications for 22 the exemption application. I find them to be without merits and certainly 23 do not meet the criteria of ‘special grounds’ as provided for pursuant to 24 section 58(2) LRA 1976. 25 26 The Amendment application 27 [35] In the alternative the PW has sought leave to amend her Petition by 28 adding Cherry Hamdi as a Co-Respondent in the intitulement of all the 29 cause papers filed in this Court. 30 [36] In order to do so the PW has to comply with the principles of law 1 pertaining to the application pursuant to Rule 15 DMPR 1980. 2 3 [37] The Federal Court case of Yamaha Motors Co. Ltd v Yamaha (M) 4 Sdn Bhd & Ors [1983] 1 CLJ 191 has outlined the following 5 considerations for an application to amend:

whether the application is bona fide;

whether the prejudice caused to the other side can be 8 compensated by costs; and 9

whether the amendments would not in effect turn the suit from 10 one character into a suit of another and inconsistent character. 11 12 [38] The Court also held that if the answers to all the questions above 13 are in the affirmative then the application for amendment should be 14 allowed at any stage of the proceedings. 15 16 [39] Fast forward to the year 2015 where in the case of Hong Leong 17 Finance Bhd v Low Thiam Hoe and Another Appeal [2015] 8 CLJ 1 18 the Federal Court added an additional criteria to the Yamaha Motors case 19 as follows: 20 21 “[25] The Courts in Malaysia have consistently held that where there is 22 a delay in making an amendment application, the onus is on the 23 applicant to furnish a reasonable explanation for such a delay. They 24 seem to have considered this as an additional factor to the Yamaha 25 Motor’s rules.” 26 27 [40] Relying on the decision of both these cases and having applied the 28 principles to the instant application I find that the PW has not shown that 29 she has satisfied the test of amendment as stated in the cases of Yamaha 30 Motors and Hong Leong Finance. She has never explained her reasons 1 and has not shown any justification for the application or for the delay. 2 With respect the Affidavit in Support in Encl 33 provided no substantive 3 evidence of the averments therein. Relying on the principles of Yamaha 4 Motors and Hong Leong Finance I do not accept the PW’s averments 5 as cogent or reasonable. 6 7 [41] In prayer (a) of Enclosure 32 the PW seeks for an exemption from 8 including Cherry Hamdi but then in prayer (b) the PW wants Cherry Hamdi 9 to be included. 10 11 [42] At this point, I am in complete agreement with RH’s argument that 12 on the one hand the PW has given various reasons as to why she does 13 not want to add Cherry Hamdi as a Co-respondent but on the other hand 14 she wants the Court to include Cherry Hamdi. 15 16 [43] The RH has brought to my attention to the Court of Appeal case of 17 Mohd Azam Shuja & Ors v United Malayan Banking corporation Bhd 18 [1995] 2 MLJ 851 where it was held: 19 20 “In my judgement, I think that where there are two such applications in 21 one summons-in-chambers, even though the applications are in the 22 alternative (which, incidentally, means one or the other), the party 23 applying has to elect as to which application he wishes to proceed on. 24 This is because that since both the applications are the applicants and 25 since it has been determined by this court in the present appeal that the 26 two applications could not be proceeded on in the same summons in 27 chambers, the summons would be dismissed unless the applicant elects 28 as to which of the two applications he would wish to proceed on. 29 …the court also cannot give a direction as to which one of the 30 applications (if there are more than one) the litigant, who is applying, 31 should choose to apply for an order on. Of course, a judge may indicate 1 to the applicant that unless he elects as to which application he is 2 applying for an order on, his summons-in-chambers is likely to fail. Since 3 it is the applicant who is applying to the court for an order, he has to 4 decide for himself which is the one he is asking for an order on, 5 otherwise, the summons in chambers will be dismissed because the 6 applicant cannot proceed on both applications together.” 7 8 [44] In the case of Thiruchevasegaram Manickavassegar v Mahadevi 9 Nadchatiram [2001] 3 CLJ 743, the learned High Court Judge held 10 himself bound by the decision in Mohd Azam Shuja and stated; 11 12 “In my considered view – the Court of Appeal’s decision would apply to 13 all cases and to all occasions so long as there are alternative 14 applications in one summons in chambers.” 15 16 [45] In this case I had on 10.7.2024 put the question to the learned 17 Counsel for the PW to elect as to which prayer she wished to proceed on 18 and she emphatically replied that she chose to rely on Prayer (a) i.e. that 19 the PW be exempted from including Cherry Hamdi. She confirmed the 20 same after I had repeated my query. The Court then proceeded to hear 21 submissions from both counsel after which I had dismissed the 22 application. Learned counsel for the PW then followed that with a request 23 for the Court to allow her application in Prayer (b) instead. 24 25 [46] In my view the actions of the counsel neatly fell into the situation 26 warned of in the Court of Appeal case of Mohd Azam Shuja. Having 27 elected to proceed with the application in Prayer (a), the PW’s case stood 28 and fell on that Prayer and she could not subsequently change her mind 29 and ask the Court to consider her alternative prayer in Prayer (b). 30 31 [47] I find merit in the RH’s contention that the PW ought not to allowed 1 to “flip-flop” on her application. Since she had chosen the relief in Prayer 2

she could no longer rely on Prayer (b) in alternative, having earlier on 3 abandoned that prayer. 4 5 [48] At this juncture I find it necessary to remind counsels handling 6 litigation in the Family Court that they should take the preparation and 7 filing of pleadings seriously. Care should be taken in drafting pleadings 8 because what is pleaded goes to the core and truth of a party’s grounds 9 for the filing of the petition for divorce. 10 11 Conclusion 12 [49] In the premises and for the reasons stated above, this application in 13 Enclosure 32 was dismissed with costs. 14 15 Dated 2 December 2024. 16 17 18 19 (JULIE LACK) 20 Judge 21 High Court of Malaya 22 Shah Alam, Selangor Darul Ehsan 23 24 25 26 27 28 29 30 Counsel 1 For the Petitioner : 2 Zakiah Zaki 3 (MESSRS. YAHYA ANNE ASSOCIATES) 4 5 For the Respondant : 6 Ravi Nekoo and Yugan Pathmanathan together with Ling Ying Xin 7 (MESSRS. SIVA, THURAI, MARIANY & CO.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30