Saranya A/P Ramachandaran v 1. ) Sathiswaran Sachein A/L Sathasivam (BA-33-734-10/2024)

Enclosure 13 is an application by the Respondent Husband (RH) to strike out the Petitioner Wife’s (PW) Amended Divorce Petition dated 15.10.2024 pursuant to O.18 r.19(1)(b) and/or (d) Rules of Court 2012 ROC 2012) and Rules 102 and 103 DMPR 1980.

The RH’s challenge to the filing of the Amended Divorce Petition is grounded on the fact that the PW had filed without first obtaining the Reconciliatory Tribunal’s certificate of failed reconciliation pursuant to the statutory requirement under Section 106 of the LRA 1976.

After hearing the application, I allowed the striking out on 13.3.2025 and awarded costs in favour of the RH.

Subsequently on 9.4.2025, the PW filed a notice of appeal against the decision. I now set out the reasons for my decision. Brief Background 5. The PW and RH registered their marriage at the Petaling National Registration Department on 17.11.2021.

The parties do not have any children together.

Their marriage was happy at first until the PW discovered that the RH had committed adultery with the Co-Respondent.

On 14.10.2024 the PW filed a single Petition for Divorce alleging that the marriage had irretrievably broken down due to the adultery between the RH and the Co-Respondent.

The PW filed this Amended Divorce Petition (ADP) to dissolve the marriage between the parties without first referring the marital difficulty to a Conciliatory Body and obtaining a certificate of failed reconciliation from the said Body as mandated by Section 106 LRA

1976.

The RH was served with the ADP on 24.10.2024.

The RH responded with this application to strike out the Amended Divorce Petition in Encl 13. Issues 12. The application in Encl 13 addresses the following primary issues:

Is the ADP scandalous, frivolous or vexatious?

Does it constitute an abuse of the process of court? Respective Submissions of the Parties 13. The thrust of the RH’s contention is that the PW has failed to comply with the requisite conditions of Section 106(1) of the LRA 1976 which mandates a reference to the conciliatory body before a party seeks a divorce and a certificate must be issued by the body as proof of failed reconciliation between the parties.

The RH contended that this requirement is mandatory and must be complied with. Failure to comply is fatal rendering the ADP liable to be struck out in limine.

The RH has further contended that if PW wished to proceed without the certificate of failed reconciliation she must file and obtain a court order for dispensation as provided under Section 106(1) LRA.

In this regard the PW did not produce any evidence of a court order allowing for a dispensation of referral of the marital difficulty to the conciliatory body.

The RH further averred that the grounds alleged in the PW’s ADP do not fall within the exceptional circumstances outlined in Section 106 of the LRA 1976 that would permit filing the DP without the requisite tribunal certificate.

By filing the ADP without first referring the marriage difficulty to a reconciliation body, the RH avers that he is deprived of an opportunity to ventilate his opposition to the petition.

The RH has asserted that the PW’s allegations of adultery are unsubstantiated, scandalous, provocative and an abuse of the process of court. It was submitted that every reasonable effort has to be made to preserve the institution of the marriage and that the granting of a divorce ought to be avoided without exploring avenues for reconciliation first.

In reply the PW has argued that there is no obligation on her part to refer the matter to the conciliatory body prior to filing a petition for divorce as the exceptional circumstances that render reference to a conciliatory body impracticable as prescribed in Section 106(1)(iv) LRA 1976 are present and have been successfully established in the ADP. It was submitted that the presentation of the ADP is regular and the Court should dismiss this striking out application.

The PW asserts that reconciliation is improbable, that the marriage is beyond repair and has broken down irretrievably making it futile and a waste of time to refer the matter to the conciliatory body. To make matters worse the RH had committed adultery with the Co-Respondent and the PW finds it intolerable to live with the RH anymore. The PW pointed out that the RH himself has recognized and acknowledged the breakdown of the marriage in his Affidavit in Reply.

It was consequently contended that the PW can do away with the mandatory reference to a conciliatory body as she has fulfilled the conditions under exceptional grounds to do so. Decision of the Court 23. The provisions on striking out of pleadings are provided in Order 18 rule 19(1) of the ROC which is reproduced below: "(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement, on the ground that-

it discloses no reasonable cause of action or defence, as the case may be;

it is scandalous, frivolous or vexatious;

it may prejudice, embarrass or delay the fair trial of the action; or

it is otherwise an abuse of the process of the Court, and may order the action to be stayed or dismissed or judgment to be entered accordingly, as the case may be.”

The law on striking out is well-settled. It is only in plain and obvious cases that recourse should be had to the summary process under this rule. This summary process can only be adopted when it can be clearly seen that a claim or answer is on the face of it obviously unsustainable. It cannot be exercised by a minute examination of the documents and facts of the case, in order to see whether the party has a cause of action or a defence. The court must be satisfied that there is no reasonable cause of action or that the claims are frivolous or vexatious or that the defences raised are not arguable (see Bandar Builder Sdn Bhd & Ors v United Malayan Banking Corporation Bhd[1993] 4 CLJ 7).

At this stage of the proceedings the Court must be satisfied that there is no reasonable cause of action, or that the claims are scandalous, frivolous or vexatious or that the claim is an abuse of the process of court. The court should not be concerned with the merits of the claim at this stage. So long as the pleadings disclose some cause of action or raises some questions fit to be decided, the mere fact that the case is weak and not likely to succeed at the trial is not a ground for the pleadings to be struck out.

For the purposes of Order 18 rule 19(1)(b) ROC 2012, "scandalous" means "wholly unnecessary or irrelevant", whereas "frivolous or vexatious" means "obviously unsustainable" (see Boey Oi Leng t/a Indah Reka Construction & Trading v Trans Resources Corporation Sdn Bhd [2002] 1 CLJ 405 ).

The term "abuse of the process of the court" has been interpreted by the court to mean that the judicial process must be used bona fide and that it must not be abused and used as an instrument of vexation and oppression. (see Tan Wai Hong & Ors v Malaysian Airlines System Bhd & Ors [2018] 2 CLJ 84).

28.

It is not disputed the PW in this case has not made any attempts to refer the marriage difficulty to the conciliatory body.

The law on the requirement of reference to the conciliatory body is governed by Section 106 of the LRA 1976. For convenience section 106 is reproduced below as follows : Section 106 - Requirement of reference to conciliatory body before petition for divorce

No person shall petition for divorce, except under sections 51 and 52, unless he or she has first referred the matrimonial difficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties: Provided that this requirement shall not apply in any case -

where the petitioner alleges that he or she has been deserted by and does not know the whereabouts of his or her spouse;

(ii) where the respondent is residing abroad and it is unlikely that he or she will enter the jurisdiction within six months next ensuing after the date of the petition;

(iii) where the respondent has been required to appear before a conciliatory body and has wilfully failed to attend;

(iv) where the respondent is imprisoned for a term of five years or more;

where the petitioner alleges that the respondent is suffering from incurable mental illness; or

(vi) where the court is satisfied that there are exceptional circumstances which make reference to a conciliatory body impracticable.” [Emphasis added.]

Before this Court zooms into the provisions outlined in the section above, it may be necessary to understand the need to decipher the objective behind section 106 LRA 1976.

Section 55 of the LRA is of assistance. It states :-

Provisions designed to encourage reconciliation

Provision may be made by rules of court for requiring that before the presentation of a petition for divorce the petitioner shall have recourse to the assistance and advice of such persons or bodies as may be made available for the purpose of effecting a reconciliation between parties to a marriage who have become estranged.

It is useful to also refer to Section 57(2) LRA 1976 which emphasizes the importance of reconciliatory steps to be undertaken by parties before the presentation of the divorce petition :

Contents of divorce petition

Every petition for a divorce shall state what steps had been taken to effect a reconciliation.

A careful reading of Section 106 of the LRA 1976 makes it abundantly clear the mandatory requirement for a reference to the conciliatory body as a redemptive action on the part of the parties seeking a divorce and that a certificate must be issued by the body as proof of failed reconciliation between the parties.

It expressly states that no DP can be filed unless the conciliatory body has certified that it has failed to reconcile the parties subject to the exceptions outlined in the provisos.

There are a number of case authorities which have discussed the position of the law in relation to this matter. In those cases the court had recognized and acknowledged that before filing a divorce petition, it is a legal prerequisite for parties to secure a certificate from the conciliatory body that it has failed to reconcile the parties subject to the provisos of Section 106(1).

In the case of Neduncheliyan Balasubramaniam v Kohila Shanmugam [1997] 4 CLJ 676 the Court of Appeal held : “…A court in Malaysia cannot in normal circumstances find, as the judge below purported to do, that a marriage has irretrievably broken down unless the conciliatory body has so certified. Section 106 of the Act is a second reason why the Divorce petition as totally misconceived. It was obviously filed to achieve some tactical advantage related to the hearing which was due to take place that very day…”

In Chin Pei Lee v Yap Kin Choong [2009] MLJU 1068 the court held that it could only grant a dissolution of a marriage after being satisfied that all efforts at reconciliation had been unsuccessful. The Learned Judge was of the view that reconciliation attempts are essential prior to any petition for divorce as this is clearly enunciated in Section 57(2) of the LRA 1976. Section 57(2) has mandated that every petition for a divorce shall state the steps taken to effect a reconciliation.

In Lim Sze Mey v Looi Guan Heon [2021] 12 MLJ 569 the court held that : “Section 106 of the LRA is anchored on the premise to encourage reconciliation between parties. To apply for an exemption because parties do not want a reconciliation belittles the institution of marriage and invites abuse by opening the floodgates to litigations (see Chin Pei Lee v Yap Kin Choong [2009] MLJU 1069. The mandatory requirement for the production of the statutory certificate in JPN.KC29 must be put to a rest once and for all to mitigate further uncertainties by Family Court legal practitioners substituting their reading into otherwise, already precise statutory requirements (see r. 16A of the LRR, and s. 106(5)(b) of the LRA and r. 8 of the DMPR).”

The same view was expounded in the case of Shuit Wai Yee v Fam Lee Ee [2022] CLJU 1975 where Justice Evrol Marriette Peters reiterated that compliance with Section 106 of the LRA 1976 is a mandatory requirement subject to any of the exceptions listed therein. Her Ladyship held as follows : “At this juncture, I am compelled to state that the purpose of section 106 of the Law Reform Act is to promote reconciliation. In fact, Parliament's intention in introducing section 106 of the Law Reform Act was to ensure that disputes between married couples be first referred to the Marriage Tribunal. The Marriage Tribunal would then attempt to resolve the issues arising from the dispute, by allowing the parties to ventilate their problems to the members of the Marriage Tribunal. Compliance with section 106 of the Law Reform Act is a mandatory requirement, subject to any of the exceptions listed therein.” (emphasis added)

Her Ladyship also warned that parties in a martial dispute should not ride roughshod the role of the Marriage Tribunal or treat it as a mere formality as that would be defeating the whole purpose of section 106 of the LRA 1976 and the concept of reconciliation which is, and should be, the objective of the Law Reform Act, which the Court must as much as possible promote. Her Ladyship made reference to the case of Bowman v Bowman [1949] 2 All ER 127 where Lord Denning held in the following passage : “The really important consideration in all these cases is to see whether there is any chance of reconciliation. On this point it is most material to inquire what the applicant has already done to try to make the marriage a success or to become reconciled. Is the breakdown of the marriage due to any failing or maladjustment on the part of the spouse who applies to launch her petition within three years of the marriage? Has the applicant consulted a probation officer or anyone else specially qualified to help? If the court is not satisfied that all which is reasonable has been done in this respect, it may well dismiss the application.”.

The above decision was cited and endorsed in the Penang case of Thiroonyanasambantham a/l Kumaran v Nithya a/p Balayoothom [2023] MLJU 740. The Learned Judge summed up as follows : [22] The mandatory requirement for the production of the statutory Certificate in JPN.KC 29 must be complied with in conformity with precise statutory requirements (see Rule 16A LRR 1982, and s. 106(5)(b) LRA 1980, Rule 8 DMPR 1980). [25] Section 106 LRA 1980 is evident that no petition for divorce shall be presented unless the marital difficulty is first referred to a conciliatory body. The statutory certificate in the Form of JPN.KC29, First Schedule must be firstly secured, or a dispensation (proviso) is procured from the Court before presenting the divorce petition. [27] In our case, since the divorce petition had already been erroneously filed without a dispensation or JPN.KC29, therefore that legal pre-requisites to filing the divorce petition had not been followed, rendering the cause papers filed premature and not in order.”

In Peh Chin Ping v Gan Ho Soon [2021] MLJU 2001. In that case the petitioner wife filed the DP without the requisite tribunal certificate arguing that a reference to a conciliatory body is impractical. The petitioner wife in that case had premised her argument on the interpretation that a reference to a conciliatory body is impractical and a waste of time. The learned Judge dismissed the petitioner wife’s DP as it was filed without the requisite Tribunal Certificate. The Learned Judge held: “[11] I dismissed the DP filed by PW fundamentally for non-compliance with s. 106(1) LRA requirements and failing to comply with the instructions given by the Court. It is nevertheless dismissed without prejudice since the merits of the said DP have yet to be ventilated. I find that the actions of PW in filing the said DP are not in line with established norms and practices in family matters, constituting a fatal procedural error that cannot be remedied and her reluctance to abide by the instructions of the Court to regularize her papers, doesn’t help.

In applying the decision of Chin Pei Lee the Learned Judge explained the rationale behind the exercise of this function which was to prevent impetuousness on the part of married parties to rush to divorce their spouses. The Learned Judge explained : “To avoid unnecessary divorces, a reconciliation process whereby effort is taken to reconcile the married couples and settle their dispute without going for divorce amicably has been put in place through section 106 of the LRA 1976. Such a reconciliation provision has been included since the enactment of the Act itself. The then Royal Commission on Non-Muslim Marriage and Divorce Laws 1970, adopting the spirit from the English Divorce Reform Act 1969, believed that safeguards to a marriage similar to that adopted in England should be implemented in Malaysia. The High Court in the case of P v S [2014] AMEJ 1308; [2015] 9 MLJ 400 stated that, in support of such view, section 106 of the LRA 1976 was constructed to provide a platform for the marrying couple to restore their marriage and prevent spouses from hastily resorting to the ending of their marriage. The law provides for the mandatory reference of a marital difficulty to a conciliatory body before presenting a divorce petition to the High Court.”

The learned Judge further drew attention to section 16A of the Law Reform (Marriage and Divorce) Rules 1982 which provides the mechanism for making an application to the conciliatory body under section 106. For ease of reference I reproduce section 16A below : “Section 16A

An application to refer to the conciliatory body under section 106 of the Act shall be in Form JPN KC14 in the First Schedule.

Upon failure to resolve the matrimonial difficulty under section 106(5)(b) of the Act, the conciliatory body shall issue a certificate in Form JPN.KC29 in the First Schedule.”.

In light of the trite legal principles and case laws cited, it is evident that the PW by filing ADP without first obtaining the requisite Tribunal Certificate and premising her argument on the interpretation that a reference to a conciliatory body is impractical is “not in line with established norms and practices in family matters”.

On this note I was guided by the decision in Peh Chin Ping where the Court held : “[16] Therefore, it is my considered view that an application should be made by an OS for leave to dispense with the referral instead of filing a divorce petition and seeking the exemption within the divorce petition itself in the divorce proceedings. S. 106 LRA is evident that no petition for divorce shall be presented unless the marital difficulty is first referred to a conciliatory body. The statutory certificate in the Form of JPN.KC29, First Schedule must be firstly secured, or a dispensation (proviso) is procured from the Court before presenting the divorce petition. One cannot present the petition and, at the same time, in the said divorce petition, apply for dispensation since the divorce petition had already been erroneously filed without a dispensation or JPN.KC29. It follows then that legal pre-requisites to filing the divorce petition had not been followed, rendering the cause papers filed premature and not in order.”

I agree with the observations of the learned judges above.

It is now trite and settled that the marital difficulty must be referred to a conciliatory body and the statutory certificate in the form of JPN.KC29 is secured first and then only can the petition for divorce be presented. The party wishing to initiate divorce proceedings against his/her spouse must comply with the mandatory requirement for the production of the statutory certificate as provided for in Rule 16A of the Law Reform (Marriage and Divorce) Rules 1980 and section 106(5) LRA 1980. The statutory certificate must be attached as an exhibit to the affidavit supporting the application. If that cannot be the case then a dispensation in the provision of the section must have been secured from the court before the DP is filed.

It is incumbent upon this court to interpret the words used in the abovementioned legislature and to give effect to the words used by it. The court must look at and read the words in a statute and apply its plain and ordinary meaning and give effect to it. Only if the words are not clear or are ambiguous will the court employ other methods of interpretation.

This Court finds it is crystal clear from the above provisions that the proper procedure before the filing of a divorce petition is to refer the matrimonial difficulty first to the conciliatory body and if it is impracticable to do so the party filing must seek exemption from the tribunal requirement by way of a separate application supported by an affidavit.

Although not canvassed by the parties this Court noted that the PW had relied on section 106(1)(vi) LRA 1976 citing exceptional circumstances warranting the dispensation to refer the matrimonial difficulty. Central to this particular proviso is the requirement of judicial subjective considerations unlike provisos (i) to (v) which are exceptions simpliciter. Provisos (i) to (v) are activated by the occurrence of clear cut reasons namely desertion and whereabouts unknown (proviso (i), residing abroad and unlikely to return (proviso

(ii), wilful absence before a conciliatory body (proviso (iii), imprisonment (proviso (iv) and proviso (v) suffering from mental illness. These mere averments in the divorce petition is sufficient and will automatically activate the exception. They do not need the court to exercise its inherent discretion or judicial consideration. That cannot be the case under proviso (vi). The exception in proviso

(vi) requires this court to first make a finding on whether it is satisfied that exceptional circumstances exist. It requires an evaluation of the evidence in order for the court to make its decision. For myself and in my judgement this was deliberate and intentional on the part of Parliament. This interpretation reinforced my view that what amounts to exceptional hardship or not is a matter to be decided by the Judge who is required to make her/his own subjective evaluation based on the circumstances and particular facts of each case that comes before the court.

As such it behoves on the party seeking exemption to make an inter partes application separately where the parties will be given every opportunity to ventilate their facts and argue on the merits.

The PW has insisted that she is not required to file a separate application for this purpose and placed reliance on the decision in Lim Sze Mey where the Court of Appeal had decided that there is no requirement in s. 106(1) of the LRA 1976 for an application for exemption to be made separately by way of originating summons. The Court of Appeal was of the view that the exemption can be sought in the DP itself.

I have to respectfully disagree with the PW’s argument on this point. Firstly, the Court of Appeal did not provide any grounds for its decision. I cannot ignore the rule that a decision without the grounds of judgement cannot be regarded as authoritative and binding (see Tan Siew Khoon v Phuah Ching Jiong & Anor [2024] MLJU 819).

Secondly, it is crucial to bear in mind that the decision in Lim Sze Mey centred most importantly on the fact that the presentation of the divorce petition was made together with Form JPN.KC28, a certificate that is issued by the Marriage Tribunal following the other party’s failure to attend the conciliatory sessions which falls neatly into proviso (iii) of section 106. As rightly pointed out by learned counsel for the RH as well, the petitioner wife in Lim Sze Mey had regularized her earlier non-referral and sought exemption after filing the DP and the court had decided on its merits. Hence the PW had satisfied the Court of Appeal that a requirement for exemption should be given even if prior exemption was not obtained before filing the DP.

Its facts are evidently distinguishable from the facts in the instant case. Here the PW did not make any attempts to file for an exemption to regularise the DP.

This Court has no quarrel with the PW’s reliance on the case of Saravanan A. Narayanasamy v Meeachee Subramaniam [1998] 5 CLJ 729 and endorses the stand taken that “the purpose of parliament was to ensure that where a marriage has irretrievably broken down, it shall be dissolved as quickly and as painlessly as possible under the Act…” but this must be balanced with the condition that a marriage should not be written off merely because one party has stated that it is a futile effort without any attempts at reconciliation. As it stands the law mandates that an attempt at conciliation be formally undertaken or an exemption properly obtained. The PW has taken neither of this course. As such she has no justification for her non-compliance of the due process.

This Court will not delve into whether the PW has shown exceptional circumstances as that will be ventilated in a separate forum. The PW’s failure to take necessary steps to regularize her non-compliance gives credence to the RH’s contention that her reliance on an exemption is not a legitimate claim brought in accordance with the law but rather an afterthought raised belatedly made with the intent to absolve her failure to adhere to the mandatory procedural requirements. Conclusion 60. Upon reviewing the factual matrix of this case, it is the finding of this Court that the non-referral to the conciliatory body and the failure to obtain any requisite certificate from the conciliatory body confirming non-reconciliation is unsustainable and liable to be struck out. The authorities cited earlier collectively underscore the need for compliance with section 106(1) LRA, 1976. Without first doing so, it makes the petition one that is scandalous, frivolous and vexatious and a clear abuse of court procedure.

I am satisfied that the RH has met the requisite threshold for an application under Order 18 Rule 19 in line with the established principles set out in Bandar Builders Sdn Bhd. Accordingly, the application is allowed and the ADP is hereby struck out with costs. Dated 24 June 2025 (JULIE LACK) Judge High Court of Malaya Shah Alam Selangor Darul Ehsan (SELANGOR) Counsel for the Petitioner : Kirubagaran B Baskaran with Siti Nor Arifiyah and Satwant Singh A/L Joginder Singh (Messrs B B Kiru & Partner) Counsel for the Respondent : Agalya J Munusamy with Alyssa Dalila Binti Badli Esham (Messrs MahWengKwai & Associates) Counsel for the 2nd Respondent: Shanker Sundram with Suhaila (Messrs Shankar Sundaram & Co.)