R I N v M I N (WA-33-143-04/2024)

(b), 58, 59, 76, 77, 78, 79, 86, 88, 89, 92, 94, 95, 98, 102, 103 and 106 of the Law Reform (Marriage and Divorce Act) 1976 And In the matter of Section 3 Married Women and Children (Maintenance) Act 1950 And In the matter of Rule 7, 8, 46, 56, 57, 58, 61, 62, 65 and 76 of the Divorce and Matrimonial Proceedings Rules 1980 And In the matter of Order 92 Rule 4 of the Rules of Court 2012 BETWEEN RIN ... PETITIONER AND MIN ... RESPONDENT VIN ... CO-RESPONDENT 2 | P a g e GROUNDS OF JUDGMENT

The Petitioner Wife (PW) in this case has filed via Enclosure 27 an application to seek leave to commence committal proceedings pursuant to Order 52 Rule 3 of the Rules of Court 2012 (O 52 r 3 ROC 2012) against the Respondent Husband (RH).

Prior to the disposal of this application, the PW, RH and the Co-Respondent (Co-Res) have been anonymised as RIN, MIN and VIN respectively upon the application made by RH via Enclosure 31.

On 17.09.2025, I dismissed this application with costs and the PW has filed for appeal against my decision via a Notice of Appeal. I write this Grounds of Judgment for the purpose of appeal. Brief background

PW and RH, both are Malaysian citizens. They were married in January 1998, and had two children (“the children”), born in 2003 and 2006 respectively.

After 26 years of marriage, this marriage sadly had found itself to the doorstep of this court. On the allegation of adultery made by PW against RH, PW filed this petition to dissolve the marriage in 3 | P a g e April 2024. She also named VIN as the Co-Res to their matrimonial dispute.

PW had file an ex-parte application to seek leave from this court to commence a committal proceeding against RH via Enclosure 27 on the grounds that the RH had deliberately and/or wilfully refused to accept service of the Divorce Petition dated 05.04.2024 together with other relevant cause papers filed against him.

It was alleged that not only he did not accept the service of the cause papers, the RH had also acted in contempt of court by attempting to or impede and/or prevent the service of the same to him by causing the appearance and involvement of two (2) uniformed policemen near the gate of his residence on the day the service was done by the PW’s solicitors.

Although this application was made ex-parte, on 18.06.2024, Justice Evrol Mariette Peters (now JCA) being the presiding judge at that material time had ordered that this matter be heard as an opposed ex-parte application. It was also Her Ladyship’s directions to hear both this application by the PW and the application to anonymise the parties’ identity made by the RH filed via Enclosure

However, Enclosure 31 was eventually heard and disposed of first.

As such, the parties were initially directed to file their respective submissions on or before 18.07.2024 and the reply of the same on or before 01.08.2024. However, after many other applications filed 4 | P a g e by both the PW and the RH since the 1st case management held via e-review on 04.07.2024, the application via Enclosure 27 finally came before me to be heard and disposed of on 17.09.2025.

Together with Enclosure 27, other applications filed by both parties were fixed to be heard as well. The other applications were, Enclosure 129 for discovery against the RH, Enclosure 144 for discovery against the PW and Enclosure 43 by the RH to strike out the PW’s application via Enclosure 27.

On the morning of 17.09.2025 being the Hearing date fixed on 26.06.2025, there was an oral request made by PW’s counsel to stand down the Hearing till 3.00 pm as he had a part heard matter at another court. However, this request was not supported with an agreement from the RH’s Solicitors. The request to stand down till 3.00 pm was denied and as such, the Hearing was to be held as per the scheduled time at 12.00 noon on 17.09.2025. It was also made known to the court that the RH had in fact objected to the request for stand down made by the PW’s counsel on the morning of 17.09.2025.

On 17.09.2025 at 12.00 noon, the RH and his counsels were present in court and having waited till 1.30 pm with no formal request for adjournment from the PW’s Solicitors and there being no appearance of the PW nor her counsels in court, the court commenced proceedings in the absence of PW and or her counsels relying on the PW’s affidavit and written submission. 5 | P a g e

Undeniably, the PW’s main grounds to make this application was to establish that RH had acted in contempt of court when he had refused to accept personal service which was being attempted to be served to him. Since this is only an application to obtain leave to commence committal proceedings against the RH, it must be established by the PW that there is a prima facie case made against the RH warranting for leave to be granted to commence committal proceedings.

Pursuant to O 52 r 3(1) ROC 2012, no application for an order of committal may be made unless leave to make such an application has been granted by the court. It is trite that the burden lies on the applicant, in this case the PW to establish a prima facie case of contempt to justify granting leave for the committal proceedings (see: Dato' Oon Ah Baa & Ors. v. Eagle & Pagoda Brand Teck Aun Medical Factory & Ors [2003] 7 CLJ 81; Sinohydro Corporation (M) Sdn Bhd v. KAJ Development Sdn Bhd [2023] CLJU 2323; [2023] 1 LNS 2323)

In this case, it is the PW’s argument that the RH’s refusal to accept personal service tantamount to him interfering with the due administration of justice or interference with the course of justice or evasion of service. The PW had made references to several cases in support of her argument, however, in perusing through those cases referred, I am unable to accept the PW’s argument. I find that the references relied upon by the PW, the intended instrument 6 | P a g e that was to be served was an order of the court or in a situation where there was a requirement for personal service to be administered (see: Wee Choo Keong; Houng Hai Hong & Anor v. Mbf Holdings Bhd & Anor & 3 Other Appeals Supreme Court [1995] 4 CLJ 427; NPL v SKS [2022] 6 CLJ 586 – cases referred to by PW in her submission).

In this instant case, the cause papers which were intended to be served was neither an order nor there being requirement for personal service to be administered. Here it was a Divorce Petition and its accompanying cause papers which were being served on 16.04.2024 by the PW to the RH.

It was brought to the court’s attention that the RH had asked for the service to be done on his appointed Solicitors, Messrs Balwant Singh Sidhu and yet the PW’s solicitors had insisted for personal service to the RH instead. Be that as it may, service of the said cause papers was subsequently done on 17.04.2024 to Messrs Balwant Singh Sidhu.

Now, even if the RH did not want to accept personal service of the cause papers in a circumstance as this where there is no requirement for personal service, it cannot be denied that there is no prejudice suffered by the PW as other alternative modes of service were available to the PW including service by way of substitute service and on a worst-case scenario a dispensation of service sought from the court. There was absolutely no need to create a scene and chaos at the front of the RH’s residence by the 7 | P a g e server who was subsequently joined by solicitors from the PW’s solicitor firm.

On the very fact that there was no necessity for personal service to be administered and that there were alternative modes of service, it is my considered view that the PW did not establish a prima facie case to warrant leave to be granted to commence committal proceedings against the RH.

Hence, I dismissed this application with costs of RM5,000.00 to the RH subject to allocatur fee. Dated: 27th November 2025 SIGNED …………………………………………. (SUMATHI MURUGIAH) Judge High Court, Kuala Lumpur Counsel: For the Petitioner – Not Present; Messrs Peters Chambers For the Respondent – Liza Chan Sow Keng, YN Foo, Kiran Dhaliwal,