L E N (F) v 1. ) P E N (WA-33-419-08/2023)

This was an application by the Proposed Intervener in enclosure 18, for an order that she be made a party in the proceedings herein.

To protect the privacy of all parties, and due to the sensitive nature of the issues involved, the Petitioner-Wife, Respondent-Husband, Co-Respondent and Proposed Intervener have been anonymised in this judgment respectively as LEN, PEN, YEN and MEN.

The Petitioner and Respondent aged 46 and 53 respectively at the time of the hearing of this Application, were married in 2000, and were blessed with two children, born respectively in 2001 and 2003.

In 2015, the Respondent began an adulterous relationship (“the Adultery”) with the Co-Respondent. The Petitioner claimed that she had learned about the Adultery only in 2023, and upon discovering it, she filed a judicial separation petition (“the Judicial Separation Petition”) in August 2023, and included the Co-Respondent in it.

The Respondent did not file a reply to the Judicial Separation Petition. The Co-Respondent, however, responded and admitted to the Adultery. She claimed that the Petitioner had known about the Adultery for years and had tolerated it. The Co-Respondent further asserted that the Adultery resulted in the birth of a child in June 2023 (“the Child”). 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 3 [6] In March 2024, the Petitioner and Respondent attempted to record a consent order (“the Draft Consent Order”) before this Court, to settle their matrimonial dispute.

Although the Co-Respondent’s Counsel was unable to be physically present in Court, he had nonetheless communicated his client’s resistance to the Draft Consent Order. This resistance created an impediment to recording the Draft Consent Order. Given this unresolved dispute, the Court adjourned the matter to April 2024 to allow further deliberation, potentially providing all parties with additional time to negotiate or present their respective positions.

When the matter resumed before the Court, both the Petitioner and Respondent maintained their position that the Draft Consent Order should be recorded. The Co-Respondent, however, vigorously objected to the proposed agreement, particularly Clause 10 of the Draft Consent Order. That clause, in essence, required the Respondent to transfer his half share in a property known as the TR Property to the Petitioner, within three months from the date of the Draft Consent Order. It further required the Respondent to take all necessary steps, within five months from the date of the Draft Consent Order, to effect the transfer of the remaining half share in the TR Property, currently registered in the name of the Co-Respondent, to the Petitioner, so that the Petitioner would become the sole registered owner of the TR Property, free of any encumbrance.

Clause 10 of the Draft Consent Order reads: Responden hendaklah atas kos dan perbelanjaan sendiri memindahmilik kepada Pempetisyen separuh (½) bahagian Responden yang tidak 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 4 dibahagikan dalam hartanah beralamat pos Unit ***, Jalan Ampang, 50450 Kuala Lumpur (“TR Property”) dalam tempoh masa 3 bulan dari tarikh Perintah ini dan Responden juga hendaklah mengambil semua langkah-langkah yang diperlukan dalam tempoh masa 5 bulan dari tarikh Perintah ini untuk memperolehi baki separuh (½) bahagian yang kini dipegangkan di bawah nama Responden Bersama dan memindahmilik baki separuh (½) bahagian tersebut kepada Pempetisyen supaya Pempetisyen menjadi pemilik tunggal TR Property yang berdaftar dan bebas daripada sebarang bebanan (“encumbrances”). [Emphasis added.]

The Co-Respondent asserted that the Respondent had pledged to provide financial support for both her and the Child. She further claimed that the Respondent had promised to secure a family home and ensure financial stability. In line with this commitment, in January 2023, the Respondent allegedly purchased the TR Property in the names of both the Respondent and Co-Respondent as a gift for her and the Child.

Based on the averments made by the Co-Respondent, I decided that, at this stage, it would not be proper for the Petitioner and Respondent to record any form of consent order until the issues pertaining to the TR Property were resolved.

In March 2024, the Co-Respondent’s mother, acting as the Child’s next friend, filed an application to intervene (“the Application to Intervene”) to assert the Child’s claim to the TR Property and to seek maintenance on the Child’s behalf. 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 5 [13] The hearing of the Application to Intervene began on the morning of 29 July 2024. During the proceedings, both the Petitioner and Respondent objected to the application, contending that the Proposed Intervener lacked the necessary standing to participate. They argued that the issue of the Respondent’s paternity had not been established, and therefore, the Proposed Intervener, on behalf of the Child, had no legal basis to be involved in the matrimonial dispute.

To resolve the dispute over the paternity of the Child, it was agreed by all parties that the Respondent should undergo a deoxyribonucleic acid (“DNA”) test before the Court could dispose of the Application to Intervene.

In fact, a perusal of the affidavits had indicated that as early as January 2024, it was the Respondent, via correspondences with the Co-Respondent, who had initially requested that a DNA test be conducted to determine the paternity of the Child. However, despite this initial request, subsequent correspondences between solicitors for the Respondent and Co-Respondent revealed difficulties in reaching an agreement on a mutually convenient date for the test. Over the following months, both Respondent and Co-Respondent had engaged in discussions and exchanged communications in an effort to coordinate a suitable date. Unfortunately, these attempts proved unsuccessful, resulting in a prolonged scheduling impasse.

However, on 29 July 2024, shortly after the hearing for the Application to Intervene was adjourned to facilitate arrangements for the DNA test to be conducted, the Respondent had reversed his position and 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 6 indicated that he no longer wished to proceed with the previously requested DNA test.

In a written correspondence addressed to the Co-Respondent’s counsel, the Respondent retracted his agreement to submit to a DNA test. The stated reason for the Respondent’s withdrawal was the prolonged difficulty in coordinating a mutually convenient date for the procedure, despite ongoing efforts by both Respondent and Co-Respondent to resolve the scheduling issue. The Respondent’s decision had effectively marked a departure from his initial insistence on conducting the DNA test.

As a result of the Respondent’s change in position, the Co-Respondent filed an application in August 2024, via Enclosure 44 (“the Enclosure 44 Application”), seeking an order for the Respondent to undergo a DNA test, including providing blood samples, to determine the paternity of the Child. The Court allowed the Enclosure 44 Application, prompting the Respondent to file an appeal.

The hearing of the Application to Intervene which was stalled, then continued in March 2025. The issues [20] The sole issue in this Application was whether the Proposed Intervener had a sufficient interest in these matrimonial proceedings, specifically, whether the matrimonial proceedings would directly affect the Proposed Intervener’s pecuniary or proprietary rights. 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 7 [21] This Application was allowed for the following reasons. Contentions, evaluation, and findings

The law allows the Proposed Intervener to intervene in her capacity as the next friend of the Child in accordance to rule 83(1) and (2) of the Divorce and Matrimonial Proceedings Rules 1980, which read: Rule 83 – Person under disability must sue by next friend, etc.

In this Rule — "patient" means a mentally disordered person within the meaning of the Mental’ Disorders Ordinance 1952; "person under disability" means a person who is a minor or a patient.

A person under disability may begin and prosecute any matrimonial proceedings by his next friend and may defend any such proceedings by his guardian ad litem and, except as otherwise provided by this Rule, it shall not be necessary for a guardian ad litem to be appointed by the court. … [Emphasis added.] [23] Reference was also made to Order 15 rule 6(2)(b)(ii) of the Rules of Court 2012 which reads: Order 15 – Causes of action, counterclaims and parties Rule 6 – Misjoinder and non-joinder of parties … 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 8

Subject to this rule, at any stage of the proceedings in any cause or matter, the Court may on such terms as it thinks just and either of its own motion or on application- …

order any of the following persons to be added as a party, namely- …

(ii) any person between whom and any party to the cause or matter there may exist a question or issue arising out of or relating to or connected with any relief or remedy claimed in the cause or matter which, in the opinion of the Court, would be just and convenient to determine as between him and that party as well as between the parties to the cause or matter. [Emphasis added.] [24] The law on an application to intervene has been expounded in several cases including Tohtonku Sdn Bhd v Superace (M) Sdn Bhd [1989] 2 CLJ Rep, and Arab Malaysian Merchant Bank Bhd v Dr Jamaludin Dato’ Mohd Jarjis [1991] 1 CLJ Rep 19, where it was stated in the former case by Adnan J: It is therefore clear that a person who wants to intervene must show that he has some interest which is directly related to the subject matter of the action. A mere commercial interest in the outcome is not enough. He will be allowed to intervene if his rights or liabilities in respect of the subject matter of the action will be directly affected by any order of the Court in the action. To prevent injustice being done the Court should allow a person whose rights will be affected by its judgment an opportunity of being heard. [Emphasis added.] [25] In the latter case, Gunn Chit Tuan SCJ explained in the following paragraph: 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 9 One of the class of cases covered by the said rule, which allows intervention by persons not parties, is where the proprietary or pecuniary rights of the intervener are directly affected by the proceedings or where the intervener may be rendered liable to satisfy any judgment either directly or indirectly. [Emphasis added.] [26] The issue, therefore, was whether the proprietary or pecuniary interest of the Proposed Intervener would be directly affected by these matrimonial proceedings. Whether the rights of the Proposed Intervener would be affected by these matrimonial proceedings [27] The Proposed Intervener sought to claim maintenance on behalf of the Child and to assert the Child’s interest in the TR Property, which had become a point of dispute after the Respondent, pursuant to Clause 10 of the Draft Consent Order, had agreed to transfer his share of the TR Property to the Petitioner. [28] The Co-Respondent contended that, from the outset, it was the mutual and explicit intention of both the Respondent and herself that the Respondent would bear the Child’s living expenses, and that the TR Property was to be acquired for the benefit, use, and enjoyment of both the Co-Respondent and the Child. [29] The Co-Respondent further argued that such intention was evident from the circumstances surrounding the purchase of the TR Property, namely, that such property was jointly acquired by the Respondent and Co-Respondent when the Co-Respondent was two months pregnant with the Child. In addition, a housing loan of MYR3 million was jointly 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 10 secured by them from HSBC Bank Malaysia Berhad for the purchase of the TR Property. [30] The Co-Respondent further asserted that the Respondent had assured her, on multiple occasions, that both she and the Child would be financially supported, and that he would eventually transfer, to the Co-Respondent, his half-share in the TR Property, to be held on trust for the Child. [31] Given the Respondent’s current attempt to transfer his interest in the TR Property to the Petitioner pursuant to Clause 10 of the Draft Consent Order, the Proposed Intervener contended that it was essential to be joined as a party to these proceedings in order to safeguard the Child’s proprietary interest. [32] While it was undisputed that the title to the TR Property was jointly held by the Respondent and Co-Respondent, the core of the Proposed Intervener’s case was that the Respondent’s half-share was never meant to be held for his own benefit, but rather on trust for the Child. Thus, although legal ownership of the share in the TR Property currently rested with both the Respondent and Co-Respondent, the beneficial ownership, according to the Proposed Intervener, belonged to the Child. This claim formed one of the reasons for the Application to Intervene, as the proposed transfer of the property of the TR Property from the Respondent to the Petitioner could undermine the Child’s proprietary interest. [33] Both the Petitioner and the Respondent argued that there was no definitive evidence confirming that the Child was the Respondent’s 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 11 biological son, and, therefore, there was no basis to conclude that the Respondent had undertaken any promise to maintain the Child or to hold his share in the TR Property on trust for the Child. [34] I found this contention to be fundamentally flawed for the following reasons. [35] First and foremost, it was the Petitioner herself who, in the Judicial Separation Petition, had explicitly alleged that the Respondent had committed adultery, resulting in the birth of the Child. These allegations were not mere speculation, as they were affirmed by the Co-Respondent in her reply, wherein she had admitted to the adulterous relationship with the Respondent and acknowledged the Child’s birth as a result of that relationship. [36] Significantly, the Respondent had never filed any reply to the Judicial Separation Petition. According to well-established legal principles as expounded in Ng Hee Thoong & Anor v Public Bank Berhad [1995] 1 MLJ 28, a party’s failure to respond to allegations in a petition or affidavit is deemed an admission of those allegations. Hence, by remaining silent, the Respondent effectively accepted the truth of the Petitioner’s claims, including the assertion that the Child was born out of his adulterous relationship with the Co-Respondent. [37] The Respondent, however, explained that his failure to respond to the Judicial Separation Petition was because he and the Petitioner had already agreed to enter into the Draft Consent Order. 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 12 [38] In my view, this explanation was unconvincing and untenable when examined against the actual timeline of the following events, as described from the minutes of the court proceedings: • 18 August 2023 – The Judicial Separation Petition was filed. • 12 August 2023 – Cause papers were served on the Respondent. • 11 September 2023 – Cause papers were served on the Co-Respondent. • 14 September 2023 – At the first case management, it was noted that the Respondent had not filed any reply. The Court granted both the Respondent and Co-Respondent until 5 October 2023 to file their replies. • 5 October 2023 – Co-Respondent had filed her reply to the Judicial Separation Petition. • 27 October 2023 – During the second case management, the Respondent still had not filed any reply and had yet to appoint solicitors. The Court was informed by the Petitioner’s solicitors that the Respondent was away on holiday. The Court extended the deadline and directed the Respondent to file his reply by 27 November 2023. • 27 November 2023 – At the third case management, it was again noted that the Respondent had not filed any reply. 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 13 • 30 November 2023 – At the fourth case management, solicitors for the Respondent finally appeared. They requested more time and hinted at the possibility of a settlement. The Court granted a final extension and ordered the reply to be filed by 21 December

However, no reply was filed by that date. • 12 January 2024 – At the fifth case management, the Petitioner and Respondent informed the Court that they had reached a settlement between themselves, although the Petitioner stated her intention to continue with her claim against the Co-Respondent. [39] The timeline clearly demonstrated that the Respondent had failed to file a reply to the Judicial Separation Petition, despite being directed by the Court on multiple occasions to do so. The Draft Consent Order was filed only in January 2024, well after the Respondent was first required to respond. Although he indicated a possible intention to settle in late November 2023, this did not justify or excuse his earlier and repeated non-compliance. The Respondent’s continued silence amounted to an implied admission of the averments set out in the Petition. This omission was particularly significant given that the Petitioner had expressly chosen to proceed with her claim against the Co-Respondent, further underscoring the importance of a response from the Respondent, which was never forthcoming. [40] In light of the above, it was untenable for either the Petitioner or the Respondent to now dispute the Adultery or lack of formal proof of paternity. 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 14 [41] Secondly, it was important to highlight that the Respondent had initially agreed to undergo a DNA test to confirm the paternity of the Child but later refused to submit to it. This refusal was both telling and legally significant. [42] A party who voluntarily agrees to a course of action and then unreasonably withdraws cannot later rely on the absence of that very action, especially when it was within their control, to undermine the claims of another party. In this case, the Respondent’s refusal to proceed with the DNA test, after having agreed to it, raised an adverse inference about his credibility and intentions. [43] Accordingly, this refusal to submit to a DNA test could not now be used to defeat the Application to Intervene seeking to protect the Child’s interest, especially when it was the Respondent’s own conduct that prevented the very proof he now demands. [44] In any event, with respect to the Enclosure 44 Application, being the Co-Respondent’s application for the Respondent to undergo a DNA test, the Court found that, based on the circumstantial evidence presented, a prima facie case had been established suggesting that the Child is the biological son of the Respondent. In that judgment, the Court stated in the following paragraphs: [48] In the present case, a review of the evidence strongly suggests a prima facie case that the Child is the biological son of the Respondent, as supported by the following facts. [49] There was no dispute regarding the Affair between the Respondent and the Co-Respondent. The existence of the Affair was explicitly detailed by the Petitioner in the Divorce Petition, wherein the Co- 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 15 Respondent openly admitted to the allegations. The Respondent, however, chose not to respond to these accusations. In accordance with established legal principles as expounded in Ng Hee Thoong & Anor v Public Bank Bhd [1995] 1 MLJ 281, the Respondent’s failure to deny or challenge the allegations amounted to an implicit admission of the fact. [50] It was further established that the Affair between the Respondent and the Co-Respondent spanned from 2015 to 2023. Significantly, the Child was born in 2020, falling well within the period of their affair. This timeline strongly suggested a high probability that the Respondent was the biological father of the Child. [51] The inference that the Respondent acknowledged a connection to the Child was further strengthened by the Respondent's consistent and deliberate engagement with the Co-Respondent throughout her pregnancy and after the birth of the Child. The Respondent’s actions reflected an ongoing and intentional involvement, rather than incidental or sporadic contact. [52] Such involvement by the Respondent — expressed through verbal, visual, and physical means — undermined any claim of detachment or disinterest. It strongly supported the conclusion that the Respondent, at the very least, acknowledged the Child as a significant part of his life, reinforcing the argument that the Respondent’s relationship with the Co-Respondent and the Child was more than peripheral or incidental. [53] Given the overlapping timeframe and the Respondent’s reluctance to submit to a DNA test, the circumstances pointed to a compelling inference that the Child was conceived as a result of the Affair between the Respondent and Co-Respondent. [45] The passages above fortified the contention for the Application to Intervene to be allowed. [46] To deny the Application to Intervene would risk the Child being excluded from proceedings that could directly impact his legal and equitable rights. Such an outcome would be inconsistent with the 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 16 Court’s responsibility under the parens patriae doctrine, which demands heightened sensitivity and vigilance when a child's interest is potentially at stake, and particularly in this case, where it involved property that may rightfully belong to the Child. [47] Permitting the Proposed Intervener to participate in these matrimonial proceedings would ensure that the Child's voice was not only heard but meaningfully considered in any decision that may affect his future. [48] In light of this, allowing the Application to Intervene was not only procedurally sound but would also affirm the Court's commitment to fairness, justice, and the protection of vulnerable parties, especially children whose long-term welfare and legal interests are involved. Concluding remarks [49] During the hearing of the Application to Intervene, both the Petitioner and Respondent contended that there was no intention on the part of the Respondent to hold the TR Property on trust for the Proposed Intervener. However, in my view, such arguments ventured into the substantive merits of the underlying dispute between the parties. [50] At this stage, the Court’s task was limited to determining whether the Proposed Intervener had demonstrated a sufficient legal interest to justify being heard in the proceedings. It was neither appropriate nor necessary to assess the veracity or strength of the alleged trust arrangement at this juncture, as doing so would pre-empt issues that properly belong to the substantive trial or a full evidentiary hearing. 21 June 2025 ………………………………………………………………………………………………………………………………………………………… ……………………………………………………………………………………………… 17 [51] In conclusion, in the interest of justice and after thorough scrutiny and careful judicial consideration of all the evidence presented before this Court, including the submissions of all parties, this Application was allowed, with costs. Dated: 21 June 2025 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: