Narayani A/P Mariappen v Puvanesvaran A/L Arikrishnan (KA-33-86-12/2023)

This judgment concerns the tragic disintegration of a 13-year marriage, a union allegedly destroyed by the First Respondent’s acts of domestic violence and a brazen adulterous affair. It culminates in the cruel eviction of a wife and son, forced to seek sanctuary in a temple. Beyond the facts, this case illustrates the tension often observed in matrimonial courts: the conflict between a spouse's claim of financial incapacity and the objective economic reality of their assets. It tests this Court's duty to protect the sanctity of the family unit against the corrosive effects of domestic violence and to ensure that the "veil of poverty" is not used to evade moral and statutory obligations.

All the names of those involved are anonymised herein to protect their privacy. The factual background

The Petitioner and the Respondent were lawfully married on 15.02.2010, and have one child, a son named KN, born in 2011.

The Petitioner works as a clerk, while the First Respondent is a mechanic. In 2014, the couple purchased a matrimonial home in Taman Bahagia, Alor Setar (“the Matrimonial Home”), where they resided until the Petitioner and the child were allegedly forced to leave in early 2023.

The Petitioner alleges that the marriage has irretrievably broken down due to the First Respondent's unreasonable behaviour and cruelty. Since 2010, the First Respondent has allegedly been verbally abusive and physically violent, including incidents of choking, slapping, kicking, and causing scald burns with hot water.

The First Respondent was charged in the Alor Setar Magistrate’s Court on 15.09.2022 for an offence under section 323 of the Penal Code (Case No. KA-85-134-09/2022) for voluntarily causing hurt (“the Magistrate Court case”). However, he allegedly continued his aggressive behaviour.

Additionally, the Petitioner claims the First Respondent has been having an adulterous relationship with the Second Respondent, having been seen kissing in a car and exchanging intimate messages.

Furthermore, the Petitioner claims that the First Respondent failed to provide maintenance for her and the child, forcing her to bear the household and education expenses alone. In December 2022, the First Respondent issued a legal notice for the Petitioner to vacate the Matrimonial Home. In January 2023, he changed the padlocks, effectively evicting the Petitioner and their son.

As a result, the Petitioner and the child were left homeless and forced to seek shelter at a temple. The Petitioner asserts that she contributed financially to the purchase and renovation of the Matrimonial Home and paid utility bills, entitling her to a share of the Matrimonial Home.

In the petition, the Petitioner prays for the following orders from the

Dissolution of the marriage between the Petitioner and the

The decree of divorce be made absolute immediately;

Sole custody, care, and control of the child be granted to the

Reasonable access to the child be granted to the First Respondent, subject to the child's wishes;

The First Respondent be restrained from picking up the child from school/tuition without permission;

Monthly maintenance of RM1,500.00 for the child until he reaches 18 or completes university education;

Monthly maintenance of RM300.00 for the Petitioner;

50% of the First Respondent's EPF savings be transferred to the Petitioner;

Transfer of one-half (1/2) share of the Matrimonial Home to the Petitioner;

A declaration that the First Respondent holds half the property in trust for the Petitioner;

Authorization for the Registrar to sign transfer forms if the First Respondent fails to do so;

Authority to obtain the original grant from the bank;

Directives to the Land Office to affect the transfer;

Permission for the Petitioner to retrieve her and the child's belongings from the Matrimonial Home;

Permission for the Petitioner and child to reside in the Matrimonial Home until the child turns 18 or the house is sold;

An injunction preventing the First Respondent from entering the Matrimonial Home while they reside there;

Alternatively, if the house is sold, the net proceeds be divided equally;

An injunction restraining the First Respondent from approaching the Petitioner within 100 meters;

General damages for physical injuries caused by domestic violence;

Aggravated and exemplary damages;

Compensation from the Second Respondent for adultery under Section 58 of the Law Reform Marriage Act (“the LRA”);

A penal notice be endorsed on the Order; and

Costs to be borne by the First Respondent.

Among others, this Court must determine the appropriate terms of access for the First Respondent regarding the child, specifically whether overnight visitation is appropriate given the safety concerns raised by the Petitioner.

Concurrently, the court must adjudicate the liability and quantum for child maintenance, claimed at RM1,500.00 and spousal maintenance, claimed at RM300.00.

Regarding the Matrimonial Home, the court must decide if the Petitioner is entitled to a one-half share under Section 76 of the LRA, or if the Matrimonial Home is held in trust for the First Respondent's parents as alleged.

Furthermore, the court must assess the Petitioner's claim for general, aggravated, and exemplary damages arising from the personal injuries and trauma suffered due to the First Respondent's alleged cruelty and domestic violence.

Finally, the court is required to determine whether the alleged adultery is proven and the appropriate quantum of damages to be awarded against the Respondents under Section 58 of the LRA. Contentions, Findings, and Evaluations A. Irretrievable Breakdown of Marriage i)

The First Respondent vehemently denied the allegations of cruelty. In his defence, he relied heavily on the fact that although he was charged in the Magistrate's Court for voluntarily causing hurt, the Petitioner subsequently withdrew the report. He argued that the resulting discharge not amounting to an acquittal (“DNAA”) on 15.11.2022 implies his innocence and negates the Petitioner’s claims of physical abuse.

It is this Court’s finding that the First Respondent’s reliance on the DNAA is misconceived. A withdrawal of a criminal complaint in the context of a domestic relationship does not, ipso facto, mean the violence did not occur for the purposes of a civil matrimonial petition where the standard of proof is on a balance of probabilities.

It is imperative to distinguish the standard of proof required in criminal proceedings from that in matrimonial petitions. The criminal court demands proof "beyond reasonable doubt," a high threshold designed to protect the liberty of the subject. The Family Court, however, is a court of conscience concerned with the breakdown of the union and the welfare of dependents. Here, the civil standard of "balance of probabilities" applies.

Consequently, a DNAA—or even an acquittal—in a criminal court does not operate as res judicata in this Court. The mere fact that the State did not proceed with the prosecution does not erase the lived reality of the victim's trauma. Where the evidence of the Petitioner and the child is credible and consistent, this Court is entitled to find that cruelty has occurred, notwithstanding the outcome of the criminal charge.

This Court accepts the testimony of the Petitioner, SP3, regarding the circumstances of that withdrawal. SP3 testified that she did not withdraw the report because the assault never happened, but rather because she was induced by the promises of the First Respondent and his parents, as explained in her witness statement. [See PSP5, p.9] 19 S Apakah yang berlaku seterusnya? J Selepas Responden Pertama dituduh, Responden Pertama dan bapa Responden Pertama merayu-rayu dekat saya dan berjanji bahawa Responden Pertama akan berubah baik dan tidak akan mengulangi tindakan ganasnya lagi. Bapa Responden Pertama lagi menjanjikan bahawa beliau akan menasihati Responden Pertama supaya bertukar jadi baik dan tidak akan menceraikan saya dan akan sayang pada saya. Maka, demi menyelamatkan keluarga ini, saya telah hadir di balai polis untuk menarik balik Laporan Polis. Selepas beberapa hari, Responden Pertama meminta saya hadir di Wisma Darulaman untuk berjumpa dengan Pendakwa Raya untuk memaklumkan bahawa saya mahu tarik balik kes. [Emphasis Added]

It is clear to this court that the Petitioner acted out of a desire to save the matrimonial union, relying on the First Respondent's assurance that he would cease his aggressive behaviour. Regrettably, the evidence shows that the First Respondent broke this promise and continued his cruelty.

The Petitioner’s allegations of cruelty are powerfully corroborated by the evidence of the parties' own son, KN. The child was an eyewitness to the domestic violence and gave consistent evidence regarding his father’s temper and physical abuse.

During re-examination, when asked if he had any additional information to tell the court, SP2 provided a chilling account that dismantles the First Respondent’s denial. [See NOP, p.19] PP : YA, pihak kami ada sedikit soalan tambahan. Kisho, can you please tell the Court any additional information you want to tell the Court? Yes, I can. My father always beat my mother and abuse my mother, and he will always tell force me to say that my mother is a bad person, if not he threatens me he will kill my mother. After that he didn’t care about me, don’t fetch me from the school, tuition, or anything else. He will always beat me up also and scold me. [Emphasis Added]

This direct testimony from the child confirms that the physical abuse and threats were not isolated incidents but a pattern of behaviour. The First Respondent’s attempt to portray himself as a victim of false accusations is entirely inconsistent with the trauma expressed by his son, who testified that he is still scared of his father and cannot go out alone with him.

Based on the totality of the evidence, I find that the withdrawal of the police report in the Magistrate’s Court does not negate the fact of cruelty in this court. The Petitioner’s evidence, corroborated by the harrowing testimony of SP2, has established on a balance of probabilities that the First Respondent treated the Petitioner with cruelty, thereby causing the irretrievable breakdown of the marriage.

Having found that the First Respondent committed acts of violence and cruelty, the Court must consider the appropriate remedy. The Petitioner has prayed for general, aggravated, and exemplary damages. I find guidance in the case of Ram Talib Jani Mohammed & Ors v. Amirariff Amerudin [2025] CLJU 269, where Elaine Yap Chin Gaik JC ruled that victims of domestic violence should be compensated not only for physical injury but for the indignity and trauma suffered. The High Court in that case emphasised that domestic violence cannot be justified and must be compensated in a 'just and reasonable' manner.

Applying Ram Talib (supra) to the present case, specifically the incident where the First Respondent locked the Petitioner and child out of the home and the previous physical assaults, the Court finds it fit to award general damages to be assessed by the Registrar. ii) Adultery and Intolerability 28. The Petitioner contended that the First Respondent committed adultery with the Second Respondent, making it intolerable for her to live with him. The Petitioner relied on circumstantial evidence, specifically intimate communications and physical intimacy.

The Petitioner testified that she discovered the First Respondent frequently chatting with the Second Respondent, exchanging messages containing endearments such as "Honey", and engaging in late-night video calls (See B1, pp.114 to 125) (Encl.26)

The Petitioner also gave direct evidence that she witnessed the First Respondent and Second Respondent kissing in a car parked in front of the Home (See PSP5, p.16) (Encl.36).

The Petitioner further argued that the First Respondent’s defence, that the Second Respondent was merely a customer at his workshop, was a fabrication intended to conceal the affair.

The First Respondent vehemently denied the allegation of adultery. In his written submission, he argued that the Petitioner failed to adduce direct proof of sexual intercourse. He maintained that the Second Respondent was merely a customer and friend and challenged the Petitioner’s reliance on WhatsApp screenshots and call logs as insufficient to prove an adulterous relationship. However, it is apt to note that the Second Respondent did not enter an appearance or file any defence despite being served.

The burden of proof rests on the Petitioner to establish adultery on a balance of probabilities. In determining whether the allegation of adultery against the First Respondent and the Second Respondent has been established, this Court is mindful that direct evidence of sexual intercourse is rarely available. The law does not require the Petitioner to catch the parties in flagrante delicto.

The Court relies on the principles enunciated by Faizah Jamaludin J (as she then was) in Glaret Shirley Sinnapan v Sivasankar Kunchiraman & Anor [2023] 1 CLJ 218, where Her Ladyship adopted the reasoning of Lee Swee Seng J (as he then was) in GGC v CCC & Anor [2016] 1 LNS 885: “[85] … It would be unreasonable to expect direct evidence of adultery unless of course a child is born, and DNA test revealed the child’s parentage. Typically, the matrimonial offence of adultery is expected to be established by circumstantial evidence, but in that event, the circumstances must be such as to lead to the necessary conclusion that adultery was committed by the spouse concerned. On the other hand, it would not be possible to lay down what circumstances would be sufficient to establish adultery, because circumstances may be diversified by the situation and character of the parties, by the state of general manners and by many other incidental circumstances, apparently slight and delicate in themselves, but they may have important bearing on the particular case. See the case of Yew Yin Lai v Teo Meng Hai & Anor [2013] 8 MLJ 787; [2007] 5 CLJ 737 where it was observed as follows: [67] In the present case there is no other explanation for the conduct of the respondent other than that there was indeed an affair. In this case the respondent and co-respondent had all the opportunity. The respondent had once before admitted to the petitioner, that he did have extra marital affair. He was forgiven by the petitioner. The inference of adultery arises when there is proof of the disposition of parties to commit adultery, together with the opportunity to commit it.” [Emphasis added]

Having scrutinised the evidence, the Court accepts the Petitioner’s version of events for the following reasons. First, the Court finds the First Respondent’s explanation that the Second Respondent was merely a customer to be incredible and inconsistent with the evidence. The Petitioner’s testimony regarding the "Honey" messages and late-night video calls indicates a level of intimacy far transcending a mechanic-customer relationship. The First Respondent failed to provide a plausible business reason for such communications during odd hours.

Secondly, the Second Respondent, having been named as a co-respondent under section 58 of the LRA, failed to appear to deny these serious allegations. The court is entitled to draw an adverse inference that she has no valid defence to the claim of adultery.

Based on the cumulative weight of the intimate messages and the Petitioner’s eyewitness account of the parties kissing, the Court is satisfied on a balance of probabilities that the First Respondent committed infidelity. Consequently, this Court agrees with the Petitioner’s premise that it is intolerable to live with him, satisfying the requirement of section 54(1)(a) of the LRA. iii) Construction Desertion 38. The Petitioner submitted that she did not leave the Matrimonial Home voluntarily but was forced out by the First Respondent’s conduct, amounting to constructive desertion.

The Petitioner produced a legal letter issued by the First Respondent’s solicitors dated 06.12.2022 (See Exhibit P7), explicitly ordering her to vacate the Matrimonial Home within 7 days.

The Petitioner testified during trial that upon her return in January 2023, the First Respondent had changed the padlocks, physically barring her and the child from entering, forcing them to seek sanctuary in a temple.

In response, the First Respondent contended that the Petitioner left the Matrimonial Home voluntarily. In his testimony, he claimed the Petitioner walked out and that he merely sought to formalise the separation.

It is the finding of this Court that the First Respondent’s conduct in this regard is particularly egregious. The evidence establishes a clear case of constructive desertion, where the husband’s conduct drove the wife out of the Matrimonial Home.

During cross-examination, the First Respondent, SD1, admitted to instructing his solicitors to issue the notice to vacate. [See NOP, p.121] PP :

This admission completely dismantles his defence that the Petitioner left voluntarily. It is a documented act of eviction.

After the Respondent's counsel suggested during cross-examination that the mother had voluntarily taken the child away, SP2, during re-examination, candidly confirmed that the First Respondent actively denied his wife and child entry to their home. [See NOP, p.] Just now my learned friend he asked you that after your parents quarreled, your mom herself want to bring you out from the house. But you do not agree. Because previously you said you kena halau. Yes, I kena halau. So, can you tell the Court what is the real facts happening? About how you both leave the house, or chased out or you left it yourself. Can you tell the Court? Like he locked the gate and asked us to go away. Not come in the house again. That’s all, right? Ya, that’s all. [Emphasis Added]

By issuing a legal notice to vacate and physically locking his family out, the First Respondent created a situation where the Petitioner could not reasonably be expected to live with him. This conduct falls squarely within section 54(1)(b) of the LRA and constitutes desertion.

Based on the findings of cruelty, adultery, and constructive desertion, coupled with the First Respondent’s own admission in open court that the marriage should be dissolved, this Court holds that the marriage has irretrievably broken down.

Accordingly, I grant the Decree Nisi to be made absolute immediately. The factual findings regarding the First Respondent’s conduct (cruelty, adultery, and desertion) shall now form the basis for the court’s determination on the ancillary issues of damages, maintenance, and division of assets. B. Access to the Child 49. In this case, the Petitioner objects to overnight access, arguing that the child is traumatised by the First Respondent's past violence and aggressive behaviour. The child himself explicitly stated fear of the father and witnessed abuse against the mother.

First Respondent, on the other hand, seeks reasonable access, including overnight rights, and claims that he has a good relationship with the child and was the primary person ferrying the child to school/tuition during the marriage.

In determining the issue of access, this court is guided by section 88(2) of the LRA, which dictates that the paramount consideration is the welfare of the child. The court must also have regard to the wishes of the parents and, crucially, the wishes of the child, provided the child is of an age to express an independent opinion.

This approach is consistent with Article 12 of the United Nations Convention on the Rights of the Child (CRC), to which Malaysia is a signatory. The child’s right to be heard in any judicial proceedings affecting them is not merely a procedural formality; it is a substantive right. When a child of sufficient maturity articulates a well-founded fear, the Court is duty-bound to accord those views due weight.

In this case, the child, KN (SP2), who is currently 14 years old, gave sworn evidence before this court. I had the opportunity to observe his demeanour and am satisfied that he is of sufficient maturity to express an independent opinion regarding access.

The evidence given by SP2 was harrowing and consistent. When asked about his relationship with his father, SP2 testified that he has remained fearful of his father to this day. [See NOP, pp.19 & 20] So, since you are younger until now, do your father fetch you from the school or bring you to tuition? No, all my mother did. Do you still scare of your father after all these things happen? Yes, I still scare of my father. Can you go out alone with him? No, cannot. I’m scare. Mean you cannot meet him in person alone? Yes, cannot. I’m scare. ` [Emphasis Added]

This direct testimony stands in stark contrast to the First Respondent's claim that he had a normal relationship with the child. During cross-examination, the First Respondent admitted that he had not seen the child since January 2023 and claimed he did not know where they were living, even though he knew they were at the temple. This indicates a lack of genuine effort to maintain the parent-child bond during the separation.

The First Respondent’s request for overnight access must be weighed against the genuine fear expressed by the child. To compel a 14-year-old child—who has testified under oath to being beaten and locked out of his home—to resume overnight cohabitation with his abuser immediately would be an act of judicial imprudence. It would be tantamount to placing the child in harm's way, disregarding the very welfare principle this Court is sworn to uphold. The Court will not be an accessory to the psychological retraumatisation of the child. It would undoubtedly cause further psychological harm to the child.

While the court recognises the importance of a child maintaining contact with both parents, access must be safe and beneficial to the child. The trust between the First Respondent and his son has been severely damaged, if not destroyed, by the First Respondent's past conduct.

Accordingly, I allow the Petitioner’s prayer for sole custody, care, and control of the child. Regarding access, and thereby denying the First Respondent’s application for overnight access at this juncture.

I grant the First Respondent reasonable access in the form of day visitation only (not overnight). Given the child's expressed fear, this access shall be exercisable only with the child's consent and willingness. The First Respondent is restrained from forcing his company upon the child or picking the child up from school or tuition without the Petitioner's prior consent, to ensure the child’s sense of security is restored. C. The Child Maintenance 60. The Petitioner sought a monthly maintenance sum of RM1,500.00 for the child, KN. In support of this claim, the Petitioner submitted a detailed breakdown of the child's monthly expenses in her witness statement, which included food (RM500), tuition fees for Bahasa Melayu and English, and various extracurricular activities such as Robotics, Drums, Chess, and Football, totalling approximately

The Petitioner contended that the First Respondent, as the biological father, bears the primary legal obligation to maintain the child under section 93 of LRA. The Petitioner argued that the First Respondent has the financial means to pay this amount, alleging that his claim of earning only RM1,500.00 to RM2,000.00 is false. The Petitioner submitted that the First Respondent works in his father's workshop but actually earns between RM3,500.00 and RM4,500.00, and hides his actual income by using his father’s name for the business. Furthermore, the Petitioner highlighted that the First Respondent owns a car and a motorcycle, indicating a financial capacity inconsistent with his alleged low income.

The First Respondent objected to the quantum of RM1,500.00, arguing that it was beyond his means. He submitted that he works merely as a mechanic assisting his father at Krishnan Motor, earning a monthly income of only RM1,500.00 to RM2,000.00. He further stated that he has no EPF contributions because it is a small family business.

The First Respondent contended that the Petitioner’s claim was excessive and that he could not afford to pay the sum demanded. He denied neglecting his duty to maintain the child but argued that the maintenance amount should be set based on his proven capacity to pay.

It is trite law that section 92 of the LRA envisages it is the statutory duty of a parent to maintain their children by providing accommodation, clothing, food, and education as may be reasonable, having regard to their means and station in life. Section 93(1) of the LRA further empowers the court to order a man to pay maintenance if he has refused or neglected to provide for the child.

As established in Parkunan Achulingam v Kalaiyarasy Periasamy [2004] 7 CLJ 175, the father has the primary obligation to maintain the children, while the mother has a secondary obligation only if the court is satisfied that she has the means to do so.

As the court examined the schedule of expenses provided by the Petitioner, the child is currently 14 years old, a critical age for secondary education and development. It is the court’s view that the expenses listed, including food, tuition for core subjects, and extracurricular activities like robotics and music, are reasonable for a child of his age to ensure he enjoys a standard of living commensurate with what he would have enjoyed had the marriage subsisted. The Petitioner testified that she has been bearing these costs alone since the First Respondent ceased support in late 2022.

The crux of the dispute lies in the First Respondent's financial capacity. The First Respondent claimed indigence, yet during cross-examination, he admitted that he failed to produce any salary slips, bank statements, or income tax documents to substantiate his claim that he earns only RM1,500.00 to RM2,000.00.

This Court finds assistance in Leow Kooi Wah v Philip Ng Kok Seng & Anor [1997] 3 MLJ 133, where Mahadev Shankar J (as he then was) at p.144 cited judgment by Sachs J in the English case J v J [1955] P 215 and Livesey v Jenkins [1985] FLR 813 which set out a principle that a husband has an obligation to make full, frank, and transparent disclosure of his means. Any shortcomings in this disclosure justify the court in drawing inferences against him.

In the present case, the First Respondent’s failure to produce basic financial documentation, despite owning vehicles and working in a family business, leads this court to invoke section 114(g) of the Evidence Act 1950. This Court draws an adverse inference from this failure: had such evidence been produced, it would have been unfavourable to him, specifically showing that he has the means to pay the maintenance sought. The Petitioner’s testimony that the First Respondent earns extra income from part-time jobs and by using his father’s business structure is credible in the absence of rebuttal evidence.

The First Respondent cannot hide behind the shield of non-disclosure to evade his statutory and moral obligations to his son. Furthermore, this Court takes judicial notice of the clarification obtained during the oral submissions regarding the First Respondent's housing loan obligations. It was established that the monthly instalment for the Matrimonial Home stands at approximately RM800.00. Based on standard banking governance and the debt-service ratio typically applied by financial institutions, a loan facility is generally only approved if the monthly instalment constitutes no more than one-third of the borrower’s income. Accordingly, for the bank to have approved this facility, the First Respondent’s income must reasonably have been recognised by the bank to be in the region of RM2,500.00 or more at the material time.

The Court is not an ostrich in the sand; it cannot ignore the commercial realities of banking governance. Financial institutions do not lend to ghosts, nor do they approve loans based on non-existent income. The First Respondent’s plea of indigence is shattered by the objective existence of his credit facilities. The bank's approval of the housing loan is, in itself, an independent verification that his income far exceeds the paltry sum he now claims in Court. He cannot present himself to the bank as a man of means and to his family as a pauper.

This mathematical reality directly contradicts the First Respondent's assertion that his income was limited to between RM1,500.00 and RM2,000.00. Had his income truly been at that lower threshold, he would not have qualified for the housing loan in the first instance. This discrepancy serves as objective proof that the First Respondent has under-declared his actual financial means to this Court, further justifying the adverse inference drawn against him regarding his capacity to pay the maintenance and his ownership of the assets.

Given the child’s documented needs and the adverse inference drawn regarding the First Respondent’s actual income, this Court finds the sum of RM1,500.00 per month to be reasonable and within the First Respondent's means.

Accordingly, the Court orders the First Respondent to pay maintenance for the child, KN, in the sum of RM1,500.00 per month, payable to the Petitioner on or before the 7th day of each month, commencing from the date of this Order until the child attains the age of 18 years or completes his first undergraduate degree, whichever is later. D. Financial Provision for the Petitioner i) Spousal maintenance 75. The Petitioner sought a modest monthly maintenance of RM300.00 and submitted that she was forced out of the Matrimonial Home and had to seek sanctuary in a temple. At the same time, the First Respondent continued to reside in comfort in the Matrimonial Home. She argued that under section 78 of the LRA, the court must consider the degree of responsibility for the breakdown. Since the First Respondent was solely responsible due to his cruelty and adultery, he is liable to maintain her.

The First Respondent argued that the Petitioner is a working woman earning an income and is capable of maintaining herself. He denied being responsible for the breakdown, alleging instead that the Petitioner left voluntarily. Again, he claimed that his income is only RM1,500.00 to RM2,000.00 and that he cannot afford spousal maintenance.

In determining the quantum of maintenance, section 78 of the LRA mandates this court to consider the means and needs of the parties, but crucially, to have regard to the degree of responsibility apportioned to each party for the breakdown of the marriage.

As established earlier, this Court has already found as a fact that the First Respondent is solely responsible for the breakdown of this marriage due to his cruelty, adultery, and the act of locking the Petitioner out of the Matrimonial Home. The First Respondent cannot now plead poverty to avoid his moral and legal obligation to a wife he has rendered homeless.

The sum claimed by the Petitioner is exceedingly modest. It reflects the bare minimum required for subsistence. Regarding the First Respondent's means, this Court reiterates the earlier finding that an adverse inference under section 114(g) Evidence Act 1950 applies. The First Respondent failed to produce his income tax returns or bank statements to prove his alleged poverty. I accept the Petitioner's evidence that the First Respondent earns additional income from part-time jobs and has the capacity to pay this nominal sum.

The court hereby orders the First Respondent to pay spousal maintenance of RM300.00 per month to the Petitioner, commencing from the date of this Order. ii)

The Petitioner also sought a declaration that she is entitled to 50% of the First Respondent’s monies standing in his EPF account, as she relied on section 53A of the EPF Act 1991 and the Court of Appeal’s decision in Koay Cheng Eng v Linda Herawati Santoso [2008] 4 CLJ 105, arguing that EPF savings accumulated during the marriage constitute a matrimonial asset subject to division. She testified that she contributed directly to the First Respondent's earning capacity by paying RM6,000.00 for his automotive technical course at Infoskill, Prai, which enabled him to work as a mechanic.

The First Respondent denied the existence of any EPF savings. He and his father (SD2) testified that he works in a family business, Krishnan Motor, which does not make EPF contributions on his behalf.

It is settled law that EPF contributions accumulated during the subsistence of a marriage constitute a ‘matrimonial asset’ under section 76 of the LRA. The contributions are essentially savings from income earned during the marriage, and pursuant to section 76(1) of the LRA, the court is empowered to order the division of such assets acquired by the parties' joint efforts.

This Court relies on the landmark decision of the Court of Appeal in Koay Cheng Eng (supra), where Hashim Yusoff JCA affirmed the principle that EPF monies acquired during a marriage are subject to division.

In justifying the division, Hashim Yusoff JCA also quoted with approval the reasoning of Abdul Hamid Mohamad JCA (as he then was) in Sivanes Rajaratnam v Usha Rani Subramaniam [2002] 3 MLJ 273 at pp. 279 and 306: “…Besides (I am speaking generally here), in marriage, both spouses share everything, both contribute towards the home and family in one way or another, to a bigger or smaller extent. Where both spouses work and earn income, each of them inevitably spends his or her own income for the family, Similarly, where there is income from an asset purchased during the subsistence of the marriage, say rent, even though it may be paid into the account of one spouse, eventually it will go to the family, may be all and may be part of it. No one keeps an account, indeed no one should, as a marriage is not a business venture. So, if and when the marriage breaks up, it is unreasonable that the court should undertake an accounting of their income and expenditure during the period the marriage subsists. The function of the court is to make a fair and equitable division of the matrimonial assets that exist at the time of the divorce, taking into account the factors provided by s 76.” [Emphasis added]

Applying the principle in Koay Cheng Eng(supra) to the facts herein, this Court finds that the EPF savings accumulated by the First Respondent were the result of the parties' joint partnership during the marriage. It would be inequitable to deny the Petitioner her share of these savings given her direct financial contribution to his education and her indirect contribution to the welfare of the family.

The Petitioner has adduced evidence that she directly contributed to the First Respondent’s earning capacity. Specifically, she testified that she provided financial assistance amounting to RM6,000.00 to enable the First Respondent to attend an Infoskill course. This training was instrumental in his career advancement as a mechanic, which, in turn, generated income from which EPF contributions were deducted. This clearly satisfies the requirement of a monetary contribution, or money's worth, towards the acquisition of the asset.

Furthermore, even if the EPF savings stand solely in the First Respondent's name, the Petitioner is entitled to a share by virtue of her non-financial contributions. The evidence shows that throughout the 13-year marriage, the Petitioner managed the household and cared for the child. By looking after the home and family, she relieved the First Respondent of domestic burdens, allowing him to focus on his employment and accumulate these savings.

I find the First Respondent’s defence, that he has no EPF account because he works for his father, to be disingenuous and unsupported by documentary evidence.

The Petitioner (SP3) testified that when she previously assisted in the administration of the family workshop, she personally managed the salary and EPF contributions for the First Respondent.

Furthermore, the Petitioner adduced evidence that she paid RM6,000.00 for the First Respondent’s vocational training. This direct financial contribution enhanced his earning capacity, which in turn should have generated savings.

It is inequitable for the First Respondent to benefit from the Petitioner's financial support in building his career while denying her a share of the savings derived from that career.

Therefore, this Court orders that the Petitioner is entitled to 50% of the monies standing to the credit of the First Respondent in his EPF account (if any). Pursuant to section 53A of the EPF Act 1991, the EPF Board is directed to transfer the said sum into the Petitioner’s account upon service of this Order. If the First Respondent has indeed failed to contribute to EPF as alleged, he shall bear the consequences of his own financial mismanagement, but the order stands to capture any funds that exist or may be discovered. E. Matrimonial Asset 94. It is an agreed fact that the Matrimonial Home was purchased in 2014, during the subsistence of the marriage, and is registered in the sole name of the First Respondent.

The Petitioner contended that the house is a matrimonial asset acquired by joint effort and sought a declaration that she is entitled to a 50% share or half the proceeds of its sale.

The court accepts the Petitioner's explanation that the property was registered in the First Respondent's sole name merely due to administrative restrictions regarding leasehold titles, and not because it was intended to be the sole property of the First Respondent or a trust for his parents.

The Petitioner testified that she contributed to the deposit and legal fees using her savings. She further gave evidence that she took out a personal loan of RM10,000.00 and pawned her gold jewellery to pay for renovations (see PSP5, p. 17) (Encl. 36).

Although the documentary evidence regarding the dates of the pawn receipts was challenged, I accept the Petitioner's oral testimony during trial as credible that she did pawn her jewellery and handed the cash to the First Respondent for renovations. This is consistent with her testimony that she trusted her husband and gave him cash directly while they were cohabiting.

She adduced evidence (See Exhibits in Bundle B2 and B3) showing she paid utility bills (TNB, SADA, Astro, TM Net). Crucially, she testified during cross-examination that she made EPF withdrawals (i-Lestari/i-Citra) specifically to assist the First Respondent in paying the monthly housing loan instalments when the COVID-19 pandemic hit the country.

She relied on section 76(2)(aa) of the LRA, arguing that she contributed to the welfare of the family by maintaining the house and caring for the child and the First Respondent throughout the marriage.

The First Respondent vehemently denied that the house is a matrimonial asset liable for division. He contended that he holds the property merely as a trustee for his parents.

The First Respondent (SD1) and his father (SD2) testified that the house was actually purchased by the parents (SD2 and Ragini). They claimed the parents paid the deposit of RM60,000.00 to RM70,000.00 and continue to provide cash for the monthly instalments.

They argued the house was registered in the First Respondent’s name solely because the parents were too old to qualify for a housing loan.

The First Respondent denied that the Petitioner contributed to the purchase or renovation, claiming the Petitioner merely "sat in the house" without making payments.

The court is mindful that section 76 of the LRA was amended by the Law Reform (Marriage and Divorce) (Amendment) Act 2017. As observed by Aliza Sulaiman JC (as she then was) in Poonageswari P. Krishnan v Bailand Govindanam [2019] 1 LNS 688, the distinction between assets acquired through joint effort and those acquired through sole attempt has been removed. The court is now empowered to incline towards equality by considering the non-financial contributions of the spouse who did not develop the asset, such as caring for the family's welfare.

This Court refers to the principle in Ching Seng Woah v Lim Shook Lin [1997] 1 CLJ 375, where the Court of Appeal held that an asset acquired during the marriage is a matrimonial asset if it was intended to be a continuing resource for the spouses and their children. It matters not whether it was acquired solely by one party or by their joint efforts.

In this case, it is undisputed that the house was bought in 2014, four years into the marriage, and served as the family home until the separation in 2023. Prima facie, it is a matrimonial asset.

This Court finds the First Respondent’s claim that the house belongs to his parents to be untenable and unsupported by credible evidence for the reasons herein.

During cross-examination, the First Respondent admitted that there is no trust deed or any written document to prove that he holds the property in trust for his parents.

Both the First Respondent (SD1) and his father (SD2) claimed that the parents paid the monthly instalments and the initial deposit. However, when pressed for proof, SD1 admitted he could not produce a single bank slip or transaction record to substantiate this claim, stating that all transfers were made in cash. This lack of documentary trail for such significant sums, around RM60,000, renders the defence highly improbable.

The burden of proof lies on the party asserting the existence of a trust to prove it. The First Respondent admitted under cross-examination that he could not produce a single bank slip to prove the alleged RM60,000 payment from his parents, claiming it was all done by cash. Applying the principle in Leow Kooi Wah(supra), the failure to produce such material evidence warrants an adverse inference that no such financial contribution from the parents exists.

The title is registered in the First Respondent's sole name. A bare assertion of a 'family trust,' unsupported by a written trust deed or a caveat, is insufficient to displace the indefeasibility of title conferred by Section 340 of the National Land Code. The Malaysian land registration system is based on the Torrens system, where the register is everything. While the law recognises implied or constructive trusts in specific circumstances, the burden to prove such a trust is heavy.

In this case, there is no documentary trail of the alleged payments from the parents. Equity will not assist a volunteer (or in this case, a spouse claiming on behalf of volunteers) to defeat the statutory rights of a wife under the Law Reform (Marriage and Divorce) Act

Without concrete evidence to the contrary, the registered title speaks for itself: the property belongs to the First Respondent and is a matrimonial asset liable for division.

This Court also accepts the Petitioner’s testimony and documentary evidence regarding her contributions. She produced pawn shop receipts and bank statements showing utility payments. Her evidence regarding the withdrawal of EPF monies to assist with instalments during the pandemic was consistent and unshaken.

The decision to order an equal division is further supported by the recent Court of Appeal decision in Annathurai a/l Venkidasalam v Vani a/p Welluven [2023] 3 LNS 2191. In that case, Lim Chong Fong JCA affirmed that the court should incline towards equality of division even where the wife was a full-time housewife, recognising her non-financial contribution to the welfare of the family, for this is consistent with the amended section 76(2) of the LRA: “[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.” [Emphasis Added]

Even if the First Respondent paid the bulk of the mortgage (albeit allegedly with his parents' help), the law recognises the non-financial contribution of the wife. The Petitioner testified that she managed the household, cleaned, and cared for the child and the husband for over a decade. This contribution enabled the First Respondent to focus on his work.

It would be manifestly unjust to deny the Petitioner a share of the home she helped maintain and finance (via EPF and loans) for 13 years, only to be locked out of it by the First Respondent.

The First Respondent has failed to rebut the presumption that the house, acquired during the marriage, is a matrimonial asset. He has also failed to prove the alleged trust.

Taking into account the long duration of the marriage (13 years), the Petitioner’s direct financial contributions (renovation, utilities, EPF), and her significant contribution to the welfare of the family, equality of division is, to the mind of the Court, fair and just.

Conclusion Premised on the reasons and findings above, this Court holds that the Petitioner has proved her case on a balance of probabilities. The First Respondent’s defence, particularly regarding his financial incapacity and the alleged trust over the Matrimonial Home, is rejected as it lacked credibility and documentary support. Furthermore, it is this Court’s finding that the First Respondent’s cruelty and adultery with the Second Respondent were the primary causes of the breakdown of the marriage.

Accordingly, this Court allows the Petitioner’s Petition and makes the following Orders:

Dissolution of Marriage The marriage between the Petitioner, NAM, and the First Respondent, PAA, solemnised on 15.02.2010, is hereby dissolved. The Decree Nisi is to be made absolute immediately.

Custody Sole guardianship, custody, care, and control of the child of the marriage, KA, is granted to the

Access The First Respondent is granted reasonable access to the child in the form of day visitation only, once a week on a weekend, subject strictly to the child’s wishes and comfort. No overnight access is granted at this stage, given the child’s expressed trauma.

The First Respondent shall pay maintenance for the child in the sum of RM1,500.00 per month. This sum shall be paid into the Petitioner’s bank account on or before the 7th day of every month, commencing from the date of this Order until the child attains the age of 18 years or completes his first university degree, whichever is later;

The First Respondent shall pay maintenance to the Petitioner in the sum of RM300.00 per month, payable on or before the 7th day of every month, commencing from the date of this Order;

The property held under HSM 27/1969, PT 2840, Mukim Kota Setar, Daerah Kota Setar, Kedah (bearing the address No. 1853-F, Taman Bahagia, Seberang Perak, 05050 Alor Setar) is declared a matrimonial asset;

The said property shall be sold in the open market. The proceeds of the sale, after the redemption of any outstanding bank loan and deduction of legal costs, shall be divided equally (50:50) between the Petitioner and the First Respondent;

In the interim, the Petitioner and the child are granted exclusive possession to reside in the said property until it is sold;

(i)

General Damages for domestic violence and personal injuries suffered by the Petitioner are to be assessed by the Senior Assistant Registrar;

Damages for Adultery pursuant to section 58 of the LRA are to be paid by the Second Respondent to the Petitioner, the quantum of which is to be assessed by the Senior Assistant Registrar;

The First Respondent shall pay the costs of this petition to the Petitioner, subject to the allocator fee. Dated: 4th January, 2026 -------------------------------------------------------------------- YA DR. Hj. JOHN LEE KIEN HOW @ MOHD JOHAN LEE JUDGE HIGH COURT OF MALAYA ALOR SETAR Solicitor : Ang Jun Jia For The Petitioner Messrs. Max Yee & Ang Advocates And Solicitors Solicitor : Muhammad Irham Redzuan For The Respondents Messrs. M.S Nizam & Co. Advocates And Solicitors Table of Authorities Cases Annathurai a/l Venkidasalam v Vani a/p Welluven [2023] 3 LNS 2191 Ching Seng Woah v Lim Shook Lin [1997] 1 CLJ 375 Glaret Shirley Sinnapan v Sivasankar Kunchiraman & Anor [2023] 1 CLJ 218 Koay Cheng Eng v Linda Herawati Santoso [2008] 4 CLJ 105 Leow Kooi Wah v Philip Ng Kok Seng & Anor [1997] CLJU 419 Parkunan Achulingam v Kalaiyarasy Periasamy [2004] 7 CLJ 175 Poonageswari P Krishnan v Bailand Govindanam [2019] 1 LNS 688 Ram Talib Jani Mohammed & Ors v Amirariff Amerudin [2025] CLJU 269