Kuan Fong Mee v Bay Teong Huat (BA-24F-226-09/2024)

No person shall petition for divorce, except under sections 51 and 8 52, unless he or she has first referred the matrimonial difficulty to a 9 conciliatory body and that body has certified that it has failed to reconcile 10 the parties; 11 12 Provided that this requirement shall not apply in any case;

where the petitioner alleges that he or she has been deserted by 14 and does not know the whereabouts of his or her spouse; 15 16

(ii) where the respondent is residing abroad and it is unlikely that he 17 or she will enter the jurisdiction within six months next ensuing 18 after the date of the petition; 19 20

(iii) where the respondent has been required to appear before a 21 conciliatory body and has wilfully failed to attend; 22 23

(iv) where the respondent is imprisoned for a term of five years or 24 more; 25 26

where the petitioner alleges that the respondent is suffering from 27 incurable mental illness; or 28 29

(vi) where the court is satisfied that there are exceptional 30 circumstances which make reference to a conciliatory body 31 impracticable. 32 …. 33 [15] The Applicant is relying on proviso (vi) above to seek a dispensation 1 order on the grounds that there exists exceptional circumstances which 2 make reference to a conciliatory body impractical. 3 4 [16] The proviso (vi) to Section 106 requires this court to be satisfied that 5 there are exceptional circumstances which make reference to the 6 Conciliatory Body impracticable. What constitutes exceptional 7 circumstances is explained in the case of P v S [2015] 9 MLJ 400 where 8 the court held : 9 10 “[20] What then constitute ‘exceptional circumstances’? This court is 11 guided by reported cases and realized that the decision on what is or 12 is not exceptional circumstances is subjective and a judge at the 13 first instance should make a subjective evaluation and decide 14 whether the circumstances are out of the ordinary. 15 [21] In the case of Fay v Fay [1982] 2 All ER 922, the House of Lords 16 explained: 17 Parliament deliberately intended that the decision on what is or is 18 not exceptional hardship or depravity in a particular case should 19 be a matter for the judge at first instance to decide by making his 20 own subjective value judgment as to whether the hardship or 21 depravity was out of the ordinary, when judged by prevailing 22 standards of acceptable behavior between spouses and after 23 taking into account of all relevant circumstances.” 24 25 [17] The onus is on the Applicant to show the existence of exceptional 26 circumstances which makes reference to a conciliatory body 27 impracticable. 28 29 [18] In Khoo Kay Peng v Pauline Chai Siew Phin [2015] MLJU 158 30 the Court explained ‘impracticable’ in this manner : 31 “I am of the view that the words exceptional circumstances which render 1 it ‘impracticable’ are wide enough to cover not only the situations 2 mentioned by learned Counsel for the Wife i.e. the practical or even 3 logistic aspects e.g. whether it is too costly, too inconvenient, or not 4 practical to be carried out, but it can also cover situations, as in the 5 present case, where both parties confirm that there is an irretrievable 6 breakdown of the marriage and it would be a failure, and there “not able 7 to be done or put into practice successfully” the conciliatory process 8 required by s 106(1)(vi) of the LRA.” 9 10 Do exceptional circumstances exist in the present case? 11 [19] The Applicant has submitted that the domestic violence committed 12 by the Defendant on her and their Children throughout the length of their 13 marriage constitutes exceptional circumstances which makes reference 14 to a conciliatory body impractical. The Applicant submitted that the 15 marriage had irretrievably broken down due to the domestic violence and 16 the Defendant’s uncaring and irresponsible attitude to the family. It made 17 their marital difficulty irreconcilable. She claims that their marriage is over 18 and to appear before the conciliatory body is both impracticable and an 19 exercise in futility. 20 21 [20] In responding to the Applicant’s submission, the Defendant 22 contends that he loves his wife and family and was against getting a 23 divorce as throughout their years of marriage she had never complained 24 of her unhappiness until the recent incidences. 25 26 [21] He next submits that he had gone ahead and registered their 27 marriage difficulty with the conciliatory body and the body had given him 28 a date for the reconciliation process. He contends that he is more than 29 willing to appear before the conciliatory body and be accorded the 1 opportunity to see if the marital problems between them can be resolved. 2 3 [22] In evaluating the circumstances found in the instant case, this Court 4 makes the finding that the Applicant has endured exceptional hardship at 5 the hands of the Defendant. The Defendant has admitted the incidences 6 in July 2024. By going to her workplace, he had disturbed her during 7 working hours and had caused embarrassment and affected her work. 8 9 [23] The actions of the Defendant has in my view fallen squarely within 10 the principles enunciated in the cases mentioned above. In my view the 11 Defendant is guilty of having caused hardship and pain to the Applicant. 12 Acts of domestic violence cannot be condoned. The prolonged hardship 13 caused by the Defendant to the Applicant not only occurred in the past but 14 may happen again in the future if this marriage continues. It would be 15 unfair and an injustice for the Applicant and the children to endure 16 domestic violence at the hands of someone who should have been there 17 to protect and care for them. 18 19 [24] Although the Defendant pays lip service by stating that he wants the 20 marriage to remain intact but by his actions had made no attempts 21 personally to reconcile with the Applicant. Such conduct inevitably gave 22 rise to concerns of bad faith, casting doubt on the Defendant’s assertions 23 of good intentions and sincerity. The affidavit affirmed by the Applicant 24 clearly showed that she has suffered and will continue to suffer 25 exceptional hardship as a result of the Defendant’s conduct. It would be 26 futile to compel the parties to go through conciliation proceedings under 27 the LRA 1976 knowing that the Applicant is not interested at all to 28 reconcile. If reference to the conciliatory body is insisted, it is still 29 impossible for the Defendant to reconcile with the Plaintiff based on what 1 the Defendant did. There is no understanding and happiness anymore to 2 unite and hold the parties to each other. By objecting to this application, 3 the Defendant is merely extending the misery and hardship faced by the 4 Applicant. 5 6 [25] It is precisely in such circumstances that the Court will step in with 7 decisive intervention and lend its hand to facilitate an end to an abusive 8 and toxic marriage rather than waiting for another violent episode to occur. 9 By then it might even lead to unwanted results. This Court would venture 10 the opinion that even the mere risk of domestic violence recurring would 11 be sufficient to prove exceptional circumstances. It is therefore the firm 12 conviction of this Court that the Applicant has successfully discharged her 13 burden of showing exceptional hardship falling within the proviso (vi) to 14 Section 106. 15 16 [26] Taking all these matters into careful consideration I have decided to 17 allow the Applicant’s application. There shall be no order as to costs. 18 19 Dated 30 May 2025. 20 21 22 23 (JULIE LACK) 24 Judge 25 High Court of Malaya 26 Shah Alam, Selangor Darul Ehsan 27 28 29 Counsel 1 For the Applicant : 2 Reuben Ong Myn Shen 3 (MESSRS. KEVIN & CO.) 4 5 For the Respondant : 6 - 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29