Kubanderan A/L Ramasamay v Shaila A/P Subramanian (NA-33-130-08/2024)

This Application is lodged by the Petitioner recently on 24.2.2026, two years after the filing of this divorce petition. The gravity of the prayers is significant as it is for an order that Messrs. Krishnan Dallumah & Indran (KDI) and/or any lawyers from the said firm - here Indran Kumaraguru (IK) is identified, from further acting for the $ 2^{\mathrm{nd}} $ Respondent in these proceedings. The Petitioner also seeks for these proceedings be stayed until the disposal of this application under Enclosure 101.

Courts do not take recusal applications lightly as the credibility of the profession and the preservation of the integrity of this Court's proceedings are now under scrutiny. This Court is tasked to consider whether the basis forwarded by the Petitioner amount to sufficient reasons to warrant the recusal applied for.

The Petitioner premised his application for recusal of IDK and IK on the following:

On 22.6.2020,21.4.2021 and 16.1.2024, IDK had represented the $ 1^{\mathrm{st}} $ Respondent. Those letters addressed to the Petitioner were invitations to settle the marriage through joint petition for divorce;

On 7.8.2024 the Petitioner filed this divorce petition against the Respondents, and the $ 2^{n d} $ Respondent was represented by Sathia Murty Rajagospel from Messrs. Gibb & Co;

On 15.4.2025 IDK took over the representation from Messrs. Gibb & Co;

At the hearing of 11-13.8.2025 the Petitioner filed a subpoena dated 15.7.2925 to call IK as a witness on one disputed fact that of marital rape. According to the Petitioner, it was specifically because the letter dated 16.1.2024 contained an allegation of marital rape against the Petitioner. [4] Citing the above reasons, the Petitioner claims that there will be prejudice against the Petitioner and also the $ 2^{nd} $ Respondent. It was the Petitioner's submissions that IK must withdraw and recuse from representing the $ 2^{nd} $ Respondent pursuant to section 28 Legal Profession (Practice & Etiquette) Rules 1978 (Practice & Etiquette Rules). The Petitioner issued a subpoena against IK, claiming that under Rule 28 of the Practice & Etiquette Rules, a lawyer is prohibited from appearing in a case where he is likely to be a witness of a material or disputed fact. [5] The application implies that because KDI acted for the $ 1^{\mathrm{st}} $ Respondent, they may be in possession of information that creates a conflict in their current representation of the $ 2^{\mathrm{nd}} $ Respondent in a trial centered on alleged adultery between the $ 1^{\mathrm{st}} $ Respondent and the $ 2^{\mathrm{nd}} $ Respondent. The Respondents' Objections [6] The Respondents formally oppose this application, arguing the following:

There is no threshold relationship. There was never a solicitor-client relationship between KDI and the Petitioner; he is a "stranger" to KDI's relationship with the $ 1^{\mathrm{st}} $ Respondent';

The $ 1^{\mathrm{st}} $ Respondent, who is the only party is entitled to claim protection from a conflict involving KDI, has expressly consented in writing to KDI's continued representation of the $ 2^{\mathrm{nd}} $ Respondent;

One point the Respondents raised is that the letters sent by KDI were "without prejudice" settlement communications. As such, they are inadmissible in this Court and cannot be used to turn IK into a witness or form the basis of a disqualification;

IK has no personal knowledge of the alleged adultery between the $ 1^{\mathrm{st}} $ Respondent and the $ 2^{\mathrm{nd}} $ Respondent. His only role was the formal act of drafting and sending letters, which the Federal Court has characterized as a "formal and non-contentious" matter that does not trigger disqualification;

The Respondents point out that the Petitioner waited nearly two years after the filing of his petition and attended multiple court hearings before raising this objection on the eve of the trial, suggesting the application is a tactical strategy to delay proceedings. This Court's Assessment [7] Based on the facts and the applicable legal principles, KDI and IK should not be recused. The Petitioner's application in Enclosure 101 is legally unsustainable and is hereby dismissed for the reasons analyzed and iterated below. [8] Malaysian law requires the moving party like the Petitioner to establish three limbs for disqualification: a threshold relationship, possession of relevant confidential information, and a strong case. Here there is no threshold relationship. The Petitioner was never a client of KDI; he is a stranger to the firm's relationship with the $ 1^{\mathrm{st}} $ Respondent. The Court of Appeal's decision in Mirza Mohamed Tariq Beg bin Mirza HH Beg v Margaret Low Saw Lui & Ors [2009] 4 MLJ 671; [2009] 4 CLJ 303 establishes that the doctrine of confidentiality does not apply if there is no solicitor-client or fiduciary relationship between the moving party and the counsel sought to be disqualified. This authority is binding on this Court and Enclosure 101. [9] See also Dato'Azizan bin Abdul Rahman & Ors v Pinerains Sdn Bhd [2021] MLJU 1414; [2021] 8 CLJ 839 that emphasizes for a party to seek a solicitor's disqualification based on confidentiality, there must first be an established solicitor-client or fiduciary relationship between that counsel and the moving party. In this case, there is an absence of that. [10] Furthermore, the Petitioner has failed to identify or particularize any specific confidential information belonging to him that KDI or even IK allegedly possess. This Court finds that the Petitioner's application rests on vague assertions of conflict rather than clear evidence, failing to meet the high evidentiary threshold required by law. [11] Under Rule 5(b)(ii) of the Practice & Etiquette Rules, a lawyer can act for an opposing party if the first party (the former client) provides written consent. The $ 1^{\mathrm{st}} $ Respondent, who is the only party entitled to claim protection from a conflict involving KDI, has expressly consented in writing to KDI's continued representation of the $ 2^{\mathrm{nd}} $ Respondent. The Petitioner has no standing to invoke the $ 1^{\mathrm{st}} $ Respondent's protection against her own wishes. [12] The Petitioner's contention that IK is a witness to a material disputed fact (specifically the marital rape allegation) cannot be sustained. The Federal Court has held that Rule 28 Practice & Etiquette Rules does not apply to formal and non-contentious roles. Facts show that IK's only role was drafting and sending settlement letters on instructions, which is a formal act that does not make him a witness to the underlying events of the marriage. IK has averred that he has no knowledge as he is not a witness to any such event and he has no personal knowledge of it. His only personal knowledge concerns the formal facts of the drafting and transmission of the three letters which fall within the formal and non-contentious matters described by the Federal Court in Wong Sin Cheong & Anor v Bhagwan Singh & Anor [1993] 3 MLJ 679; [1993] 4 CLJ 345. It thus falls outside the scope of Rule 28 Practice & Etiquette Rules. [13] If this Court needs to explore instructions or alleged contained in solicitors' correspondence, the proper witnesses are the spouses (the Petitioner and the 1 $ ^{st} $ Respondent themselves), not the solicitor who acted merely as a messenger. See Beh Pau Chiang v Lim Sheau Huey [2022] MLJU 1058; [2022] 1 LNS 1104, The solicitor is merely the messenger of the client's instructions and should not be turned into a witness to resolve factual disputes between the spouses. [14] The Petitioner's subpoena against IK relies on the three letters issued by IDK are protected by without prejudice privilege section 23 of the Evidence Act 1950. These letters were settlement communications aimed at inviting the Petitioner to enter a joint divorce petition. Because the contents of these letters are inadmissible at trial, they cannot give rise to any material disputed fact on which IK could testify. The law establishes several barriers to calling a solicitor as a witness to testify about client communications:

"Without Prejudice" Privilege communications is codified in section 23 EA. It clearly provides that the principle that communications made in a genuine attempt to settle a dispute are inadmissible at trial;

(ii) The public policy behind this rule is to encourage litigants to settle their differences without fear that their statements will later be used against them;

(iii) In Indran a/l N Jeganathan v Nithiyani a/p K Kulveerasingam [2011] 7 MLJ 237; [2010] 4 MLRH 520, it was held that allegations (such as the marital rape claim in this case) made under the umbrella of settlement negotiations regarding maintenance or divorce are privileged and inadmissible. [15] These letters were settlement communications aimed at inviting the Petition to enter a joint divorce petition. Because the contents of these letters are inadmissible at trial, they cannot give rise to any material disputed fact on which IK could testify. [16] Additionally, the Petitioner is estopped from seeking recusal due to his own conduct. He waited more than ten months after KDI was appointed and attended at least seven court hearings without raising any objection before the filing of Enclosure 101 on the eve of trial. This delay constitutes acquiescence and an abuse of the court process. [17] The Petitioner's reliance on Million Group Credit Sdn Bhd v Lee Shoo Khoon & Ors [1985] CLJ (Rep) 575; [1984] 1 MLRH 484 to argue that IK should not have affirmed the affidavit-in-reply (Enclosure 105) is misplaced. The Court of Appeal has clarified that when an application is made to disqualify counsel, that counsel is the natural and proper deponent to reply to those specific procedural allegations. IK's affidavit depositions concern formal, non-meritbased facts (such as the chronology of the representation) which is explicitly permitted under Rule 28(c) Practice & Etiquette Rules. [18] In the premises, Enclosure 101 is dismissed. The Petitioner has not proven any basis to warrant the recusal of KDI and IK. Costs of RM10,000.00 is awarded to the Respondents subject to allocator, to be paid by the Petitioner. There will be no stay of the trial already fixed for 8.6.2026 and 9.6.2026. Divorce [19] This Court granted an order for divorce, dissolving their marriage, on 12.8.2025. A decree nisi absolute. The care and custody of the two younger children remain with the Petitioner. The oldest of the children who is the biological son of the $ 1^{\mathrm{st}} $ Respondent from a previous relationship of whom the Petitioner adopted pursuant to the marriage, is already an adult who is currently reading law at a university in the United Kingdom. [20] Under Section 77(1) of the Law Reform (Marriage and Divorce) Act 1976 (LRA), this Court is empowered to order a man to pay maintenance to his wife or former wife during matrimonial proceedings or when granting or subsequent to the grant of a decree of divorce. Unlike matrimonial property division under section 76 LRA, which must generally be decided at the time of the decree, the inclusion of the phrase 'subsequent to the grant' means the courts retain the full jurisdiction to make maintenance orders even after the decree has been made absolute. The LRA is considered a piece of social legislation requiring liberal interpretation rather than a strict one to ensure justice for the dependent spouse. This is a "conspicuous" and "deliberate" inclusion by Parliament, meaning that unlike property division, the Court retains full jurisdiction to make maintenance orders at any time after the decree absolute has been granted Refer to the Federal Court case authority of Manokaran Subramaniam v Ranjid Kaur Nata Singh [2009] 1 MLJ 21; [2008] 6 CLJ 209; [2008] 2 MLRA 135. [21] Section 78 LRA mandates this Court base its assessment primarily on the means and needs of the parties. Legal authorities have expanded this test into several specific factors: duration of marriage, age and earning capacity, financial support during marriage and impact of divorce. A fundamental principle established in cases like Koay Cheng Eng v Linda Herawati Santoso [2008] 4 CLJ 105; [2008] 4 MLJ 863; [2008] 1 MLRA 230 is that maintenance is intended to place a spouse in a position to enjoy the same standard of living they had during the marriage. Maintenance signifies any form of provision that enables an adult to live a normal life, not just mere subsistence or enough for a little jam on bread and butter. The focus is on reasonable continuity of the accustomed lifestyle, particularly in long-term marriages where one spouse sacrificed career progression or economic independence. [22] When determining the quantum of maintenance, section 78 LRA specifically requires this Court to have regard to the degree of responsibility each part bears for the breakdown of the marriage. Recent legal authorities such as the Singaporean Court of Appeal Case of ATE v ATD [2016] SGCA 2 emphasize maintenance as a form of compensation. A former wife is regarded as having contributed to the husband's earning capacity by managing the home, allowing him to focus on his career. Maintenance justified compensating a spouse whose role in the marriage prejudiced their personal financial status. The power to order maintenance helps achieve an equalization of the former spouses' financial statuses if the division of matrimonial assets alone leaves the homemaker disadvantaged. [23] Responsibility of the marriage breakdown is a central point of contention between the Petitioner and the $ 1^{\mathrm{st}} $ Respondent with both parties presenting diametrically opposed accounts. The Petitioner maintains that the $ 1^{\mathrm{st}} $ Respondent is responsible for the breakdown due to her alleged adultery with the $ 2^{\mathrm{nd}} $ Respondent. He claims the marriage of 17 years ended in February 2024 when the $ 1^{\mathrm{st}} $ Respondent allegedly left the matrimonial home to live with the $ 2 ^{n d} $ Respondent. [24] The $ 1^{\mathrm{st}} $ Respondent submits that the Petitioner bears the sole responsibility for the destruction of the marriage. She alleges a sustained pattern of controlling and domineering behavior which includes physical violence, whereby documented assaults starting as early as 2012 and continuing throughout 2018, marital rape (an incident on 12.1.2024 which she describes as a final breaking point, alleged arson the Petitioner is said to have committed at her tuition center in February 2024, an Obedience Agreement which she was allegedly forced to sign requiring her to be obedient and seek his permission on all family matters. She asserts the marriage had irretrievably collapsed long before the alleged involvement of the $ 2^{\mathrm{nd}} $ Respondent, nothing they had lived in separate bedrooms for seven years. [25] Notably, the decree nisi and decree absolute was granted by consent on 12.8.2025 without any formal admission or finding of adultery by this Court regarding their specific relationship. [26] While section 78 LRA requires this Court to have regard to the degree of responsibility each party bears for the marriage breakdown when assessing maintenance, the divorce - the dissolution of their marriage - was by consent. Under section 59(1) LRA, this Court may award damages against a co-respondent (the $ 2^{\mathrm{nd}} $ Respondent) even if the petition against the $ 1^{\mathrm{st}} $ Respondent has been dismissed or adjourned. This suggests that the claim for damages for adultery against the $ 2^{\mathrm{nd}} $ Respondent is a separate legal matter from the spousal maintenance assessment. The Petitioner focuses exclusively on property division and made no submissions or counter-arguments regarding the prayer for the maintenance of RM4,000 monthly of the $ 1^{\mathrm{st}} $ Respondent's. [27] Drawing from case laws such as Koay Cheng Eng (supra) and Gunesiwary Sambath v R Vicknesh A/L Rengasamy [2024] MLJU 3871; [2024] MLRHU 2879, the court considers the 'means and needs':

They were married for approximately 18 years, a significant period which the $ 1^{\mathrm{st}} $ Respondent devoted herself to the family;

(ii) The $ 1^{\mathrm{st}} $ Respondent is 46 years old and has been out of the aviation industry (her former career as a flight attendant) since 2007. Her current income from a small tuition center is modest compared to the Petitioner's new monthly income of RM43,000.00 as a pilot;

(iii) The Petitioner supported the $ 1^{\mathrm{st}} $ Respondent throughout the marriage, particularly she sacrificed her career at his insistence to care for the household and children;

(iv) Maintenance is intended to place the spouse, the $ 1^{\mathrm{st}} $ Respondent in a position to enjoy the same standard of living they had during the marriage. [28] Where the 1 $ ^{st} $ Respondent stays and the costs associated with her housing is highly relevant to the calculation of spousal maintenance. The case of Koay Cheng Eng (supra) adopting Borthwick held that maintenance does not only mean "the food she puts in her mouth, but it also means the clothes on her back, the house in which she lives and the money she has in her pocket". The scope of maintenance is wide and signifies any form of provision that enables her to live a normal life (rather than mere subsistence), with the aim to avoid a sudden or unjustifiable deterioration in the standard of living, focusing on reasonable continuity of the accustomed lifestyle. The 1 $ ^{st} $ Respondent has specifically included RM1,500.00 for rent/maintenance as part of her total RM5,000 monthly expenses. [29] As with the legal principles from Chaw Annui v Tan Kim Chai [2004] 5 AMR 671; [2004] 4 MLJ 272, this Court is required to provide an amount sufficient to supply the $ 1^{\mathrm{st}} $ Respondent with the necessaries, comfort and advantages incidental to her station in life, consistent with the standard of living enjoyed during their 18-year-old marriage. [30] This Court also recognizes that the Petitioner, who currently has custody, care and control of their two children has been making the sole financial payments for the family's joint properties, including housing loans, quit rent, assessments, insurance, security fees, and general maintenance. He also bears the financial responsibility of the children's expenses. [31] Based on the facts and circumstances here, this Court finds that it is just and reasonable to grant the RM4,000.00 monthly spousal support that would take care of her monthly living including her housing. This is of course, until she re-marries. Matrimonial Assets [32] Listed below is a list of the matrimonial assets:

Property 1: the matrimonial home at No 1491 Jalan TBK 7/8 Taman Bukit Kepayanh, 70200 Seremban where the two younger children (the biological children of the Petitioner and the $ ^{1st} $ Respondent) reside together with the Petitioner;

(ii) Property 2: No.1582 Jalan TBK 8/3 Taman Bukit Kepayang, 70200 Seremban;

(iii) Property 3: a shop lot at No 13 Jalan Tiara Sendayan Biz 1, Pusat Komersil Tiara Sendayan, 71900 Labu;

(iv) Property 4: an apartment at Unit ST2-33-09, Menara Solstice 2, Persiaran Bestari, Cyber 11, 63000 Cyberjaya;

The BMW motor vehicle: a red BMW 218i Gran Coupe with registration no. KFF 3515;

(vi) The Petitioner's EPF/KWSP savings with a balance exceeding RM2,000,000.00 accumulated during the 18-year marriage;

(vii) Gold Jewelry: items previously returned to the $ 1^{\mathrm{st}} $ Respondent [33] It must be iterated on the outset that the Manokaran principle that an order for property division must generally be made when granting the decree does not apply here because this Court has expressly reserved the matrimonial property for adjudication. Written submissions were directed on this outstanding matter on the same day the decree absolute was granted. And since the said directions were given contemporaneously with the grant of the decree, this Court was effectively exercising its power 'when granting; the decree as required by section 76(1) LRA. See also Chew Ling Hang v Aw Ngiong Hwa [1997] 3 MLJ 107; [1997] 1 MLRA 600 and Teo Chee Cheong v Chiam Siew Moi [2024] MLJU 2936; [2025] 2 MLRA 1. [34] This Court has read and heard the arguments from both sides at length. The specific disagreements on every matrimonial asset. So, this Court will deal with the four properties first. The $ 1^{\mathrm{st}} $ Respondent seeks a declaration that her 50% registered ownership in all four properties is indefeasible under the National Land Code (NLC). The Petitioner asks this Court to divide the four properties in his favor based on his sole financial contributions. He specifically prays for the proceeds to be divided five ways (among the couple and their three children) or placed on trust for the children. [35] This Court rules that Property 1 be the family home for the Petitioner and the two younger children to live and occupy. This arrangement is best for the two young children as they are most comfortable and happy where they are currently living together with the Petitioner. They both have also informed this Court that they wish to continue with their currently living arrangements with their father, the Petitioner. It is the considered view of this Court that it is fairest to order Property 1 be given to the Petitioner and Property 2 to the Respondent. As the values of Property 1 and Property 2 are not available, this Court is unable to mete out the exact quantum to compensate the 2nd Defendant for the shortfall, if there are any. Thus, this Court leaves it to the parties to work out the difference and ensure equal value distribution to each party. To ensure fairness, the properties should be valued by a qualified valuer agreed to by the Petitioner and the 1st Respondent to determine the exact amount of compensation. [36] This would also apply to Property 3. Since the Petitioner has expressed that he wishes to hold on to Property 3 for an indefinite time, he has to buy out the $ 1^{\mathrm{st}} $ Respondent's half share, It is most just that the valuation of Property 3 be valuated as of 12.1.2024 as that is the date when the 1 $ ^{st} $ Respondent identifies as the final incident marking her departure from the matrimonial home. The Petitioner is then to pay the 1 $ ^{st} $ Respondent that half value and have Property 3 transferred to his sole name. [37] For Property 4, it is to be sold and the proceeds divided equally after deductions of the costs and expenses it would entail in the disposal. [38] In each decision for the respective properties, this Court takes into account that they were acquired during the marriage as their joint matrimonial assets. Though she did not directly finance the properties, her part was to keep the house and look after the children so he can continue his profession. The marital years, the non-money contribution of the $ ^{1 \mathrm{st}} $ Respondent, the indefeasibility of title, the fairness of it all are the other considerations. There is a trial for the allegations of adultery by the Respondents; nonetheless, that will be taken separately and remedies and reliefs will accordingly be granted then should the Petitioner succeeds in his claims. [39] Regarding the BMW motor vehicle, since it was a gift to the $ 1^{\mathrm{st}} $ Respondent, the full rights to it is hers. Or, the full proceeds in the event of its disposal. [40] As to the EPF/KWSP savings which the $ 1^{\mathrm{st}} $ Respondent is claiming a 25% share of the total savings due to her career sacrifice and 18 years of marriage. Binding legal authorities establish that EPF contributions made during the subsistence of a marriage are divisible assets under section 76(1) LRA 1976. See the Court of Appeal case of Teo Chee Cheong (supra). [41] The rationale for the division is that a spouse enters a marriage with the intention of growing old together and sharing retirement benefits. When one spouse (often the wife) sacrifices their career to care for the home and children, they enable the other spouse to advance professionally and accumulate EPF, making those savings a product of their joint financial partnership. Earlier restrictive views such as the dictum in Yap Yen Piow v Hee Wee Eng [2017] 1 MLRA 389; [2017] 1 MLJ 17, suggested EPF was only divisible if it was already due to be withdrawn. Current authority has declared that view to be purely obiter and confirmed that EPF is divisible regardless of whether it is currently due for withdrawal. [42] There is no formal respond by the Petitioner on this point although this Court had directed the filing of written submissions on 12.3.2026. This Court acknowledges the 1 $ ^{st} $ Respondent's sacrifice of her 18-year career as an AirAsia flight attendant at the Petitioner's insistence to raise their children, leaving her with no EPF savings of her own whilst the Petitioner proceeded to accumulate over RM2,000,000.00. Her indirect contribution to the EPF savings is legally recognized - see Annathurai Venkidasalm v Veni Welluven; [2022] MLRHU 2097; [2022] MLJU 2501, cited with approval in Chow Khoon Choong v Loi Hoi Wai; Liou Wing San (Party Cited) [2025] MLRHU 3382; [2025] CLJU 3866. [43] This Court grants the $ 1^{\mathrm{st}} $ Respondent 25% of the Petitioner's EPF savings as at 12.1.2024. An order is made out under section 76(1) LRA and section 53A of the EPF Act 1991 empowers the EPF Board, upon being served with this Court's sealed order, to transfer the said sum from the Petitioner's member account directly to the account of the $ 1^{\mathrm{st}} $ Respondent. [44] Lastly, the gold jewelry to which this Court has contradictory versions. The 1 $ ^{st} $ Respondent claims as stated in the police report that she lodged on 19.1.2024, that the Petitioner had thrown out her clothes and gold jewelry from the matrimonial home. At the opposite, the Petitioner alleges the 1 $ ^{st} $ Respondent had taken personal items and gold items when she left the house. At the hearing of arguments, this Court was informed that the issue on the gold jewelry has since been settled. As such, this Court makes no order on it. [45] This Court regarded the trust arrangement for the children proposed in the oral submissions pertaining to the property. Nevertheless, as upheld by our courts, such arrangements are unknown to section 76 LRA. Any divisions must the parties to the marriage - the Petitioner and the $ ^{1st} $ Respondent. So, any other ways to divide cannot be granted by this Court. [46] Costs are to be borne by the respective parties. Dated 26 May 2026 ROZ MAWAR ROZAIN JUDGE HIGH COURT OF MALAYA SEREMBAN For the petitioner Santhi Sinnah S.San & Co For the $ 1^{\mathrm{st}} $ respondents: Sreedhara Naidu Naidu Chambers For the $ 2^{\mathrm{n d}} $ respondents: Indran with Nasuha Mann & Associates