Patricia Pauline A/P Mariasoosay v Ravendran A/L Ramasamy (BA-33-493-07/2022)

(b), 55, 91 Dan 106 Akta 7 Membaharui Undang-Undang 8 (Perkahwinan dan Perceraian) 9 1976; 10 11 Dan 12 13 Dalam Perkara Seksyen 76, 77, 78, 14 88, 92 dan 93 Akta Membaharui 15 Undang-Undang (Perkahwinan dan 16 Penceraian) 1976; 17 18 Dan 19 20 Dalam Perkara Kaedah 8(2) 21 Kaedah-kaedah Prosiding 22 Perceraian Dan Matrimonial 1980; 23 24 Dan 25 26 Dalam Perkara Kaedah-Kaedah 27 Mahkamah 2012 28 29 ANTARA 30 PATRICIA PAULINE A/P MARIASOOSAY 1 (No. K/P : 760227-07-5616) ...PEMPETISYEN 2 3 DAN 4 5 RAVENDRAN A/L RAMASAMY 6 (No. K/P : 710729-10-5461) ...RESPONDEN 7 8 DAN 9 10 ADRIAN SUNIL GEORGE A/L GEORGE 11 (No. K/P : 770226-14-5327) …PIHAK YANG DINAMAKAN 12 13 14 GROUNDS OF JUDGEMENT 15 16 17 Introduction 18 [1] This was an application by the Petitioner Wife (PW) in Enclosure 96 19

“Injunction against molestation 24 The court shall have power during the pendency of any matrimonial 25 proceedings or on or after the grant of a decree or divorce, judicial 26 separation or annulment, to order any person to refrain from forcing his 27 or her society on his or her spouse or former spouse and from other acts 28 of molestation.”. 29 30 [22] Molestation has been defined to mean “the action of molesting or 1 condition of being molested; annoyance, disturbance, vexation…” (see 2 Chan Ah Moi @ Chan Kim Mou v Phang Wai Ann [1995] 3 CLJ 846). 3 4 [23] In Chan Ah Moi Abdul Malik Hj Ishak J (as he then was) explained 5 the purpose of granting a non-molestation order in this manner: 6 7 “….(Section 103 of the Law Reform (Marriage and Divorce) Act 1976 8 Court to make an order to refrain the other party to a marriage from acts 9 of molestation). Such an order is not restricted to physical harm or 10 threats of such harm. It was said that even psychological harm to the 11 applicant is included, and this will include pestering, causing trouble, 12 vexing, annoying and putting to inconvenience.” 13 14 [24] More recently, in the case of Liow Keng Luan v Tan Si Hai @ Tan 15 Si Yen [2024] CLJU 213 the Learned Judge, Justice Evrol Maritette 16 Peters has held : 17 18 “[12] The concept of molestation therefore extends beyond mere 19 physical violence or abuse, encompassing a broad spectrum of 20 behavior. This principle is underscored by the precedent set in the case 21 of Lee Sook Kwan v Yap Woon [2010] 11 MLRH 167, where Her 22 Ladyship Yeoh Wee Siam j (as she then was) drew from the case of 23 Chan Ah Moi @ Chan Kim Moy v Phang Wai Ann to grant a non- 24 molestation order. 25 … 26 [23] Drawing guidance form the precedent set in the case of Johnson v 27 Walton [1990] FCR 568, 1 FLR 350, it was clear that ‘molestation also 28 applies to any conduct which intentionally cause harassment.” 29 30 [25] From the evidence it is very clear that the relationship between the 31 PW and the RH is highly tensed and acrimonious. The parties cannot be 32 in the same room let alone live under the same roof. From the evidence 1 thus far, I do not doubt that the RH has committed acts of ‘molestation’ on 2 the PW. 3 4 [26] The molestation need not even necessarily be physical. It can be 5 applied to ‘veiled threats’, insinuations and ‘shouting’. This was the 6 situation faced by the wife petitioner in the case of Sheng Lien @ Shen 7 Len Yee v Tan Teng Heng & Anor [2010] 1 LNS 1480 where the Learned 8 Judge had allowed an injunction though there was no physical violence 9 but only ‘shouting’ and ‘veiled’ threats by the Respondent husband without 10 any evidence of physical abuse nor police reports. Justice Yeoh Wee 11 Siam held that the tense and uncomfortable relationship clearly showed 12 that the parties can no longer live together and the Court does not have 13 to wait for the day when violence occurs before it grants such order; that 14 would be too late. 15 16 [27] In this connection I find that the PW’s application supported by her 17 affidavit in Encl 97 shows the alarming happenings unfolding when the 18 RH comes back to the matrimonial home. It cannot be a coincidence that 19 all the occurrences narrated by the PW commenced with the filing of the 20 Divorce Petition in August 2022. Her assertions are supported by 21 corroborative documentary evidence such as the photographs and 22 WhatsApp messages as seen in the exhibits annexed to her affidavit in 23 support. They are not a figment of her imagination. 24 25 [28] I cannot ignore the fact that the incidences have escalated from 26 petty annoyance, intimidation to outright threats of violence. The PW has 27 described and particularized the acts of intimidation carried out by the RH 28 over the period of time. She has averred that the conduct of the RH is 29 frightening, making her anxious and fearful and her physical and 30 emotional health have been gravely affected by all these incidences. 1 Knowing that the police reports she has lodged have had no effect to halt 2 the intimidation and harassment has caused the PW to reach breaking 3 point. I cannot draw any other irresistible inference than that this pattern 4 of conduct is designed to drive the PW out of the matrimonial home. As I 5 have held earlier. all those acts amount to molestation. 6 7 [29] As highlighted earlier and I must put emphasis on, I find it is 8 abundantly clear that the relationship between the PW and RH is acutely 9 hostile. I accept that her fear for her own safety is not imaginary. Though 10 the RH has not physically assaulted her, his actions are threatening and 11 amount to mental abuse. I should also point out that the RH has not given 12 any reasonable explanation to justify those actions which he is accused 13 off. I find the contents of his affidavit in reply to be bare assertions and 14 mere denials. The RH has not shown a single shred of proof to rebut the 15 acts of aggression complained off. 16 17 [30] The other averments such as the allegations of adultery between 18 the PW and the Party Cited are either confusing or irrelevant to the 19 application. The RH raised the issue of adultery but that to my mind is not 20 relevant at this material time. The issue of adultery requires determination 21 at the trial proper with witnesses to be called. Similarly, the issue of 22 whether the property is a matrimonial property is another issue to be 23 determined at the trial. None of these issues are relevant to this 24 application. 25 26 [31] In my judgement this Court must come to the aid of the party that is 27 being intimidated and threatened and ensure that the status quo remains 28 at least until parties can themselves give vive voce evidence explaining 29 their reasons for their actions. I am firmly of the opinion that this Court has 30 the power to injunct one spouse from entering into the matrimonial home 1 when there is sufficient evidence to show molestation has been carried 2 out on the other spouse. I am fortified in this view from the decision of her 3 Ladyship Evrol Marriette Peters in the case of Liow Keng Luan 4 mentioned earlier. There the Learned Judge relied on the case of 5 Jayakumari a/p Arul Pragasam v Suriya Narayanan a/l V Ramanathan 6 [1996] 4 MLJ 421 in particular and held : 7 8 “[18] In Jayakumari a/p Arul Pragasam v Suriya Narayanan a/l V 9 Ramanathan, addressing the matter of whether one spouse could 10 restrict the other’s access to the matrimonial home, James Foong J (as 11 he then was) articulated the following position: 12 As the English common law prior to 7 April 1956 is applicable to our 13 country, the English case of Silverstone v Silverstone [1953] p 174 may 14 be of relevance as regards jurisdiction. Here Pearce J expressed as 15 follows at p 177: 16 In my view, she has a right to be in a matrimonial home while a 17 petition is pending before this court, and this court is entitled to 18 protect that right and ensure that pressure is not put on a wife to 19 abandon her petition by evicting her from the home. In the present 20 case, I am satisfied that if I let the husband go back to the house I am 21 really driving her out. 22 By the same token the court should have jurisdiction to evict a 23 husband from the matrimonial home pending the trial of the action, 24 if there is evidence based on considered principles to do so, 25 otherwise the wife will be bullied out of her remedy or deterred by 26 pressure from seeing the help of the court. This proposition of the 27 wife’s right to remain in the matrimonial home is based on the ruling by 28 Denning LJ (as he then was) in the case of Bendall v McWhirter [1952] 29 2 QB 466, where he affirmed that a wife is not without rights in the 30 matrimonial home even though it belongs to the husband and her right 31 to stay in the matrimonial home is presumed in law to have been 32 conferred upon her by her husband flowing from the concept of a 1 marriage. 2 This issue of jurisdiction is further confirmed by the English courts in the 3 case of Gurasz v. Gurasz [1969] 3 All ER 822 which is a strong 4 persuasive authority to our laws and can even be applicable under s. 5 of the Act which provides that:

Principles of law to be applied 7 Subject to the provisions contained in this Part, the court shall in all suits 8 and proceedings hereunder act and give relief on principles which in the 9 opinion of the court are, as nearly as may be, conformable to the 10 principles on which the High Court Justice in England acts and gives 11 relief in matrimonial proceedings. 12 In the case of Gurasz v. Gurasz, the parties being husband and wife 13 lived with four children in a matrimonial house jointly owned by the 14 parties. The wife due to intolerable conditions left the matrimonial home 15 with the children. The husband remained in the house and subsequently 16 took in another man to live with him. The wife sought relief from the court 17 to evict the husband and to reinstate her possession of the house with 18 the children. The county court judge granted her application and on 19 appeal to the Court of Appeal, Denning MR reiterated the position of the 20 wife's right to occupy the matrimonial home and to evict an errant 21 husband under common law. This proposition is common law was 22 supported by fellow panel judge, Edmund Davies LJ in the same case 23 when he expressed that: 24 that such a general power (the power to evict a husband from the 25 matrimonial home) unquestionably existed has, if I may say so, 26 been amply and convincingly demonstrated by Lord Denning MR. 27 Based on the aforesaid authorities, this court is convinced that it has 28 jurisdiction to entertain, and if found satisfied, to grant the second relief 29 of the petitioner's application in encl 8. 30 [Emphasis added.] 31 32 [32] The Learned Judge further maintained the view that Order 92 rule 4 33 of the Rules of Court 2012 provided ample authority to the Court to grant 34 an order excluding the Respondent from accessing the matrimonial 1 property until the divorce proceedings is finally disposed off. 2 3 [33] The Learned Judge also made direct reference to the case of Tan 4 Boon Lang v Lim Tiong Sin [1997] 4 MLJ 485 where the High Court of 5 Brunei asserted its own inherent jurisdiction under the Brunei High Court 6 Rules Order 86 rule 4 (the equivalent of Order 92 rule 4) of ROC 2012 to 7 mandate a party to vacate the matrimonial house “notwithstanding 8 proprietary rights, as long as matrimonial proceedings were 9 pending. The court, in that case, emphasized the necessity to ensure 10 that a party has the right to pursue legal remedies without pressure 11 or intimidation, allowing them to proceed freely with matrimonial 12 proceedings. 13 14 [34] As the PW is now seeking to injunct the RH from entering and 15 staying in the matrimonial home, the following considerations must be 16 weighed on a balance of convenience as established in the trite cases of 17 American Cynamid Co v Ethicon Ltd [1975] AC 396 which the 18 Malaysian courts adopted through the case of Keet Gerald Francis Noel 19 John v Mohd Noor b Abdullah [1995] 1 MLJ 93 where the court must 20 ask itself these questions:

are there serious issues to be tried;

(ii) does the balance of convenience lie on the side of granting 23 the injunction. In this respect the court must consider the harm 24 that the injunction would produce by its grant and the harm 25 that would result from its refusal thereof;

(iii) whether damages are an adequate remedy. 27 28 [35] In truth I find there are serious questions to be tried in this divorce 29 proceedings especially where there are allegations of unreasonable 30 behaviour and adultery on one party. It requires a determination of these 1 issues before a final decision can be made. 2 3 [36] I have noted that the PW is a primary school teacher and earns a 4 fraction of what the RH earns in a month. The youngest child lives with 5 her in the matrimonial home and she has to take care of the child’s 6 expenses as well as her own. She has no other home to go to. The RH 7 on the other hand has been based in Singapore since the commencement 8 of his career as a pilot in SIA. He habitually would only visit the PW and 9 children infrequently on off days although that has been more frequent 10 after the PW initiated divorce proceedings. 11 12 [37] I am concerned that the hostility between the parties is witnessed 13 by the youngest child. It is certainly not in the Child’s best interest to 14 witness the acrimony between the parents played out before her eyes. 15 Hence it is my view that it is imperative that the PW be protected from 16 further hostile acts before any more serious untoward incident were to 17 occur. 18 19 [38] I accept and agree with the contention that an injunction against the 20 RH is needed to evert the further deterioration of the PW’s mental health. 21 It is vital for this Court to take into account the emotional well-being of the 22 PW. The photographs and videos attached as exhibits in the PW’s 23 Affidavit in Support are enough to convince the Court that the presence of 24 the RH in the matrimonial home has distressed her and severely impacts 25 her emotional well being. More so here where the RH has not offered any 26 cogent evidence or facts to challenge the PW’s evidence which is 27 supported by contemporaneous police reports and WhatsApp 28 conversations. 29 30 [39] The balance of convenience lies in favour of the PW as she is in a 1 constant state of worry and fear with dealing with the presence of the RH 2 in the same house. The Court should not wait for the day when the mind 3 games convert into violence before it grants the order. It is better for both 4 the PW and the RH to keep a distance from each other. It is clear that this 5 case warrants a need for a non-molestation order pending the divorce 6 proceedings. 7 8 [40] I am mindful the RH may think that it is unfair to him that he be not 9 allowed into a home which he holds proprietary rights. I cannot however 10 ignore the aggression and hostility harboured towards the PW. Having the 11 2nd daughter witness and experience these incidences is also not 12 conducive. I think no amount of damages will recompense the Child from 13 the heartbreak of seeing her parents go through this difficult passage of 14 their lives. 15 16 [41] I have been informed that the RH is not without a home when he 17 comes back to Malaysia. He has many properties in Kuala Lumpur where 18 he can stay. He also has his mother and other family members to fall back 19 on for support. Therefore, finding alternative accommodation for the few 20 days he is in Kuala Lumpur would not be a hardship. The RH works in 21 Singapore and is expected to be in Singapore for most of the months 22 unless he is on leave. Furthermore, I am comforted by the knowledge that 23 excluding the RH from the matrimonial home will have miniscule effect on 24 his relationship with both his children. The youngest child can always meet 25 the RH anywhere convenient outside the matrimonial home. 26 27 28 29 30 Conclusion 1 [42] As such I am satisfied and I make the finding that the PW has proven 2 on a balance of probabilities that there is a need for the non-molestation 3 order to be granted due to the actions and behaviour of the RH himself. 4 5 [43] I do hereby order the RH to stay away from the matrimonial home 6 and refrain from molesting, harassing and threatening the PW until the 7 final disposal of the petition for divorce. 8 9 Dated 14 March 2025. 10 11 12 13 14 (JULIE LACK) 15 Judge 16 High Court of Malaya 17 Shah Alam, Selangor Darul Ehsan 18 19 20 21 22 23 24 25 26 27 28 29 30 Counsel 1 For the Petitioner : 2 Kamaleswari Shanmugam 3 (MESSRS. KAMALES & PARTNERS) 4 5 For the Respondent : 6 S. Santhi 7 (MESSRS. S. SAN & CO.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29