Sundrasen A/L Retinasamy v Vanitaa A/P Sandrasekharan (WA-33-96-03/2025)

This is an application made by the Petitioner Husband (PH) for leave to amend the Petition filed by him against the Respondent Wife (RW) in order to include a Co-Respondent (Co-Res) pursuant to Rule 15 (2) of the Divorce and Marriage Proceedings Rule 1980.

In order to protect the privacy of all parties involved in these proceedings and in consideration of the sensitivity of the issues at hand, I have anonymised the Petitioner and Respondent as "SUN" and "VAN", respectively. Similarly, the intended Co-Respondent has been also anonymised as "NES".

However, in this Grounds of Judgment the Petitioner, Respondent and Co-Respondent are referred to as "PH", "RW" and "Co-Res" respectively.

The PH and the RW were legally married to each other on 08.04.2018 and was blessed with a son. However, due to the constant friction between them in March 2025, the PH decided to file for divorce and pray for their marriage to be dissolved.

Subsequently, in September 2025, the PH filed for leave to amend the Petition to add the Co-Res in this suit on the grounds that he has evidence to prove that the RW together with the son was seen with the Co-Res at the Paris Hotel in Johor Bahru. As such, the PH believes that the RW was having an adulterous relationship with the Co-Res.

The PH believes that the reason for the marriage to breakdown was due to the adulterous relationship between the RW and the Co-Res.

On 18.03.2026, I dismissed the PH's application with costs and consequently, the PH filed a Notice of Appeal against my decision.

The RW raised preliminary objections against the PH's Affidavit in Support (AIS) filed for this application (Enclosure 15) in that the AIS is defective on the following reasons: i. That the PH was in Nepal on the date the AIS i.e. 9.9.2025 was allegedly taken before the Commissioner for Oaths in KL; and ii. That the Jurat for the AIS is placed on a separate page i.e. at page 2 of the AIS.

The RW claimed that the PH was in Nepal since 05.09.2025 and was due to return in 2 weeks from then, therefore, the AIS which is said to have been taken before the Commissioner for Oaths on 09.09.2025 is not possibly done by him before the Commissioner for Oaths.

Although, the PH claims that it is his signature, it is the contention of the RW that it is not possible for the PH being the deponent of the AIS to have signed the AIS before the Commissioner for Oaths on 09.09.2025.

As for the Jurat, it is the RW's contention that the jurat in the AIS being in a separate second page of the AIS is not in accordance to Order 41 rule 7 of the Rules of Court 2012.

PH's rebuttal to the PO raised by the RW is that the signature on the AIS is his and that he had placed his signature upon understanding the contents of the AIS. As such, although his signature is on the $ 2^{\mathrm{nd}} $ page of the AIS, it is a mere technical error which can be cured.

Upon considering the arguments put forth by both parties, I am of the view that the PH's rebuttal that the jurat being placed separately on the 2nd page of the AIS is curable as per held in the case HONG LEONG ISLAMIC BANK BERHAD v. SARINAH GURIAMAN [2021] CLJU 317; [2021] 1 LNS 317 where Leonard David Shim JC (as he then was) held as follows: [28] It is not disputed that the Appellant have filed their Affidavit in Reply (Encl. 47) and Supplementary Affidavit in Reply (Encl. 48) to respond to the assertions in the Affidavit in Opposition. This Court does not find any miscarriage of justice concerning the positioning of the jurat. There is no provision in the ROC 2012 which provides that the jurat must not be positioned in a new page of an Affidavit without any averments therein. In Mohd Nazir Badar Shair v. Timbalan Menteri Dalam Negeri & Ors [2000] 2 CLJ 805, the High Court held: [1] There is no provision in the Rules of the High Court 1980 ('RHC') on the positioning of a jurat. There is thus no legal basis for declaring a jurat defective if it does not end on the last page of an affidavit. Furthermore, O. 41 r. 9(2) of the RHC states that "every affidavit must be indorsed with a note showing on whose behalf it is filed and the dates of swearing and filing, and an affidavit which is not so indorsed may not be filed or used without leave of the court." [1a] The indorsement must be made at the end of the jurat. This will show that the jurat, even though beginning and ending on a new page or is on a completely new page, relates to the deposition in question and that the affidavit is regular. The object of the indorsement is precisely for that purpose. [2] The affirmation and filing of an affidavit are official acts which will attract s.114(e) of the Evidence Act 1950 which provides that the court may presume that judicial and official acts have been regularly performed. The signature of a Commisioner for Oaths in an affidavit in an affidavit showing that it has been sworn before him is an official act and the affidavit must be presumed to have been regularly affirmed even though the jurat is on a completely new page unless the contrary is proved."

However, as for the PO raised that the AIS was not taken before the Commissioner for Oaths by the PH on the basis that he was in Nepal on the date the AIS was affirmed, based on the PH's explanation on the same, the PH has not denied this fact. PH's only explanation to these POs is that he understood the contents of the AIS and that he had signed the same.

There is no denial that he was in Nepal or any confirmation that he was in Kuala Lumpur (being where the AIS was taken before the Commissioner for Oaths) at the time the AIS was taken. As there is neither a denial nor any evidence to substantiate his presence in Kuala Lumpur during that period, the RW has proven that the PH had NOT signed the AIS before the Commissioner for Oaths. As such, based on Rule 13(2)(d) of the Commissioners for Oaths Rules 1993, the AIS is not only defective but void. "COMMISSIONERS FOR OATHS RULES 1993 PU(A) 71/1993

In the course of performing his duties, a Commissioner for Oaths shall pin at the top left shirt pocket an identification tag described in Form 5.

In exercising his functions, a Commissioner for Oaths shall personally attend to any person requiring his services and shall-

verify the identity, the personal particulars as given in the identity card or passport, and the address of the person making the declaration, affirmation, affidavit, oath, or statement before the Commissioner;

read over and explain the contents of the documents and the exhibits attached thereto to the deponent or maker of the document, if the deponent or maker of the document is blind, illiterate or does not understand the language written in the document, before certifying that he has done so in the jurat;

initial any alteration made in the document to be sworn or affirmed;

not affix his seal to any document unless the deponent or maker of the document signs or affixes his thumbprint thereto before him;

refuse the services of his office when the Commissioner has cause to suspect that any person before him is engaging in deception, fraud, duress, or any other illegal conduct;

carry out the functions of his office in a prompt, reasonable and businesslike manner; and

make himself available to conduct all functions of his office at regular and reasonable hours." (Emphasis added)

My conclusion is guided by the case of ISMAIL GHULAM HUSSAIN & ORS v. NURUL SHUHADA YAAKUB & ANOR [2020] 1 CLJ 249 where the Court of Appeal held that Rule 13 of the Commissioner for Oaths Rules 1993 is mandatory and failure to comply with the rule would render the instrument void. [4] The learned judge here had set out the facts but had not dealt with the alteration and/or deletion in a statutory form under s. 8(1) of the Small Estates (Distribution) Act 1955 (Act 98). If such alteration and/or deletion in law is not validly done, then the instrument for registration will be void. In this case, the property was not transferred for consideration to the third parties who are bona fide purchasers for value. The relevant forms in issue are at pp. 149 to 156 vol. 2 of the appeal records. It is sufficient to reproduce the form at p. 149 to show that the alteration and/or deletion was not initialled as required under r. 13(2)(c) of the Commissioners for Oaths Rules 1993."

It was further held in the case of BENJAMIN CHAI PHIN NGIT v. A.T. DUNIA (MIRI) SDN BHD & ORS [2025] CLJU 3368 that an affidavit which is not signed before a commissioner for oaths is a nullity in law and cannot be regarded as an affidavit at all. [15] In Public Prosecutor v. Ahmad Bin Abdul Rashid [2012] MLJU 1392 [2013] 7 CLJ 359, the Court dealt with Rule 13 of The Commissioner for Oaths Rules 1993 (which had been repealed by Commissioner for Oaths Rules 2018). The said Rule 13 is in pari materia with Rule 11 stated above. The Court ruled that the requirements under Rule 13 were mandatory requirements in order to ensure that a statutory declaration was made personally and voluntarily by a declarant: "In my view the requirements under the above Rule 13 are mandatory requirements, in order to ensure that a statutory declaration was made personally and voluntarily by a declarant. To this end, the declarant must be personally present and execute the declaration (either by signing or affixing his/her thumb print) before the Commissioner for Oaths. Support for my view can be obtained from a clear reading of Rule 13(2)(a) that requires the Commissioner for Oaths to verify the identity, the personal particulars as given in the identity card or passport, and the address of the person making the declaration, affirmation, affidavit, oath, or statement before the Commissioner. Voluntariness of making the declaration is also very important aspect as it was clearly provided under S.2 of the Act. This can only be ascertained with the physical presence of the declarant! For all these reasons, the law mandatorily requires a person making a declaration under the Statutory Declaration Act 1960 to be present before a Commissioner for Oaths. On the circumstances in this case I hold that a statutory declaration which was not signed before a Commissioner for Oaths is not a declaration under the Statutory Declaration Act 1960 and therefore is not a declaration receivable as evidence as envisaged by s 199 Penal Code." [16] I agree with the court's conclusion that a statutory declaration which was not signed before a Commissioner for Oaths is not a declaration under the Statutory Declarations Act 1960. [17] In the present case, the issue is not one of defective affidavit or procedural irregularity capable of cure under Order 1A, Order 2 rule 1, Order 41 rule 4, or Order 92 rule 4 of the Rules of Court 2012. The defect is far more fundamental than those considered in Utama Merchant Bank Bhd v. Dato' Mohd Nadzmi Mohd Salleh [2001] 2 CLJ 235. Here, the affidavit was not affirmed before a Commissioner for Oaths. An affidavit not so affirmed is a nullity in law and cannot be regarded as an affidavit at all. Accordingly, the Applicant's affidavit in support is invalid and inadmissible. It must be rejected. The filing of such affidavit is an abuse of court process." (Emphasis added)

Similar to the Benjamin Chai's case, in this case too, the AIS was not signed before the Commissioner for Oaths and as such is an invalid and inadmissible affidavit and filing of such an affidavit is an abuse of the court process. This defective affidavit is not a procedural irregularity or a technical error curable under Order 1A or Order 2 Rule 1 or Order 41 Rule 4 of the Rules of Court 2012 where the court can exercise its inherent jurisdiction to allow pursuant to Order 92 Rule 4 of the Rules of Court 2012.

As such, it is my considered view that since the application for leave to amend the Petition made by the PH is unsupported by a valid AIS, this application is struck out with costs of RM10,000.00 to be paid to the RW within 14 days from to date subject to allocator fee. DATED: 24th MAY 2026 Signed (SUMATHI A/P MURUGIAH) High Court of Malaya Kuala Lumpur Counsel: For the Petitioner-Ms. S. Surianath; Messrs. Tanes, Khoo & Paulraj. For the Defendant - Mr. Hari Prassad Rao with Ms. Darirah Irwani; Messrs. Chandra Segaran.