Sung Siew Peng v Tang Wing Choon (BA-24F-356-10/2021)

This is an application to present a divorce petition without first referring the matrimonial difficulty of the parties to a conciliatory body as required by section 106 (1) (vi) of the Law Reform (Marriage and Divorce) Act 1976 (“LRMDA”). Background facts

The parties were married on 18 August 1984 and have five children who are now between the ages of 21 and 11. The first two children are currently studying in Singapore and Korea.

On 27 October 2021, the plaintiff (“the wife”) filed the present application to dispense with the requirement in section 106 LRMDA on the ground that her marriage of 23 years to the defendant (“the husband”) has been a nightmare plagued by domestic violence and adulterous affairs. The husband strenuously opposes the application. For the purpose of these proceedings, the wife has filed two affidavits and the husband one.

In her affidavit in support, the wife avers that she and her children have been physically and emotionally abused during the marriage by the defendant who is an alcoholic, bully and a person with a violent disposition. She further avers that he has never looked after the welfare of the family and because of his propensity for violence and philandering, she has serious concerns for the safety of her children and herself. She states that she has no desire to continue with the marriage.

The wife also avers that in October 2020, she was severely assaulted by the husband at home in the presence of their two younger children. The culminating point came in December 2020, when he had assaulted her again at a place called Bar at Hood. She lodged a police report and escaped from the matrimonial home to seek medical treatment, and thereafter moved out. She visited the two younger children surreptitiously at the matrimonial home when the husband was away, and was shocked to see their condition. They had been neglected and were malnourished, and had to be taken to the hospital for check up and treatment.

In support of her allegations, the wife relies on a medical report of her admission to hospital after her assault in 2020, and a medical report on the children and two police reports of domestic violence. She avers that presently the children are with her and they all reside at an undisclosed address for fear that the defendant would harm them.

In his affidavit in reply, the husband denies these allegations, and counters with allegations of his own. He avers that the wife’s allegations are completely baseless and untrue, and have been fabricated as an excuse to initiate divorce proceedings. He accepts there was an incident at the Bar at Hood but alleges that he was provoked when the wife appeared there and accused him of having an affair. He says that he has never been charged in a criminal court in relation to the assault allegations made by the wife, and was unaware of the police reports lodged against him by the wife until the instant application was filed.

The husband avers that the allegations of adulterous affairs are false and that the wife’s unfounded suspicion is the root reason for all their marital problems. The husband further avers that he loves his family and he is keen and willing to participate in meetings before the conciliatory tribunal to try and save his marriage. Section 106 LRMDA

I turn now to section 106 LRMDA which reads: Requirement of reference to conciliatory body before petition for divorce

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

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

(a) a council set up for the purposes of reconciliation by the appropriate authority of any religion, community, clan or association; or

(b) a marriage tribunal; or

(c) any other body approved as such by the Minister by notice in the Gazette.

(b) If the conciliatory body is unable to resolve the matrimonial difficulty to the satisfaction of the parties and to persuade them to resume marriage life together, it shall issue a certificate to that effect and may append to its certificate such recommendations as it thinks fit regarding maintenance, division of matrimonial property and the custody of the minor children, it any, of the marriage.

(c) ……

The provision outlines that no petition for divorce can be filed unless the conciliatory body has certified that it has failed to reconcile the parties. The certificate of non conciliation is a prerequisite except in any of the circumstances spelled out in the provisos thereto. The wife relies on proviso (vi) to seek a dispensation order on the basis that there exits exceptional circumstances which make reference to a conciliatory body impracticable. Submissions 11. The wife submits that the presence of adultery coupled with domestic violence throughout their marriage of 25 years constitutes exceptional circumstances which makes reference to a conciliatory body impracticable or an exercise in futility. She says that the marriage is over and there is no chance of reconciliation.

In responding to the wife’s submission, the husband contends that there is insufficient evidence to support the allegations of prolonged emotional and physical violence and adulterous affairs. He submits that it is odd that the medical report the wife relies on in support of her assertion of an assault in 2020 shows that the date of admission and treatment was on 21 October

He says if he had indeed assaulted her in October 2020, why did she seek treatment only one year later.

He next submits that the application is misconceived as there has been no refusal on his part to appear before the conciliatory body. He contends that he ought to be accorded the opportunity to appear before the conciliatory body to see if the marital problems between them can be resolved. What constitutes exceptional circumstances 14. What then is the meaning that should be ascribed to the phrase “exceptional circumstances makes reference to a conciliatory body impracticable “in proviso (vi) to section 106 LRMDA? The proviso does not furnish the court with a carte blanch to dispense with reference to a conciliatory in all cases. It is plain that the jurisdiction to grant exemption or dispensation must therefore be exercised very sparingly so as not to defeat the intent and purpose of section 106 LRMDA which is to attempt to reconcile the parties.

In C v A [1998] 6 MLJ 222, Kamalanathan Ratnam J granted a dispensation order under the exceptional circumstances rule as the parties of the marriage had been separated for over 20 years. His Lordship made this observation about proviso (vi) to section 106 LRMDA: “I hold that the very fact that both parties had lived apart with no contact with one another for well over 20 years is prima facie evidence that each of them is entitled to a dissolution of the marriage which to my mind has been a marriage in name only and not in substance, in law only yet not in fact. I further hold that it is not conducive to public interest that a man and a woman should remain bonded in matrimonial permanence, when the duties and responsibilities of such a hallowed institution have long ceased to be observed by either party. Any further continuance of this union might possibly lead to immorality and infidelity….. Again this is not a case where no attempts have been made at reconciliation. In the absence of any denial on the part of the respondent it must be taken that the relatives of the petitioner did attempt a reconciliation. In this case, in any event, I am satisfied that there is certainly no reasonable possibility of a reconciliation. Their living apart for 20 years without any contact with one another clearly indicates the impracticability of both parties getting back together. I therefore hold that the very fact that the marriage has broken down by the fact of over 20 years of separation, and that neither party had shown any desire towards the continuance of the union and that there are no infant children involved to motivate a desire for the continuance of the marriage, that a consideration of all these factors clearly show exceptional circumstances, falling within proviso (vi) to s 106 of the Act…… The Concise Oxford Dictionary (9th Ed) defines 'impractical' as 'not practicable'. Impractical would therefore present a meaning connoting fruitlessness, a sense of futility and performing an act in vain or where it is not practical or workable to perform such an act. This is just precisely what the petitioner would be doing in this case if he were to refer to the conciliatory body. To my mind such a referral would be an exercise in futility performed solely for the purpose of obtaining a rubber stamp to a certificate showing the failure of the body to effect a reconciliation.”

In Khoo Kay Peng v Pauline Chai Siew Phin [2015] MLJU 158, dispensation was granted under the exceptional circumstances rule as both parties wanted a dissolution of their marriage. In this regard, the Court explained as paras [125], [127] and [132] as follows: “Learned Counsel for the Wife submits that for the invocation of s106(1)(vi) of the LRA, the Husband is required to show “out-of-the ordinary” or “highly special” reasons why the process of conciliation through a conciliatory body should not be followed. With regard to the meaning of “impracticable”, he submits that the exceptional circumstances may mean that it would be too costly, too inconvenient or impossible for the wife / husband to attend the conciliatory process. He further submits that “impracticable” cannot mean that the process would most likely fail even if that is true, which is unknown at this juncture. I am of the view that the words “exceptional circumstances which render it impracticable” are wide enough to cover not only the situations mentioned by learned Counsel for the Wife i.e. the practical or even logistical aspects e.g. whether it is too costly, too inconvenient, or not practical to be carried out, but it can also cover situations, as in the present case, where both parties confirm that there is an irretrievable breakdown of the marriage and it would be a failure, and therefore “not able to be done or put into practice successfully” the conciliatory process required by s106(1)(vi) of the LRA. From the totality of the evidence adduced, there is no doubt that both parties no longer wish to continue with the marriage and they both want a dissolution of their marriage by divorce. This is evident from the fact that the Wife has filed divorce proceedings in England and the Husband is now seeking an exemption under s106(1)(vi) of the LRA so that they do not have to go before the conciliatory body to attempt at conciliation, but instead he can proceed with his petition for divorce in Malaysia. It would therefore be futile to compel the parties to go through conciliation proceedings under the LRA knowing that the marriage is over.”

The two cases discussed in the preceding paragraphs exemplify that under the exceptional circumstances rule, the court can order the case to fall outside the regime of section 106 LRMDA where there is evidence that there is little or no prospect of success in reconciling the parties making it futile to require the feuding parties to appear before the conciliatory body. Do exceptional circumstances exists 18. The onus is on the wife to show that the existence of exceptional circumstances which make reference to a conciliatory body impracticable.

Do exceptional circumstances exist in the present case. It is the wife’s case that reference to the conciliatory body would be futile as there is no chance of reconciliation because of the prolonged and continuous violence she has suffered and the husband’s string of marital affairs. The husband’s cruel behaviour has caused her enormous physical and emotional distress.

As, noted earlier, the allegations made by the wife have been denied by the husband who has made a number of counter allegations. It is trite that affidavits and counter affidavits lack the facility and flexibility in assisting the court in making satisfactory findings of fact when there is a dispute. It is not possible for the court will to resolve disputed questions of fact on affidavit evidence in the absence of cross-examination by opposing counsel. For instance, the wife needs to explain why she sought treatment for an alleged assault in October 2020 in 2021. In addition, there is no credible evidence or particulars to support the wife’s allegation of the husband’s marital affairs.

Based on the contested affidavits, the wife is unable make good her assertion that exceptional circumstances exists because of prolonged violence inflicted on her by the husband, and emotional pain caused by his string of extra marital affairs.

Next, and crucially, there is also no evidence there have been any previous attempts at reconciliation before making the present application. In her affidavits, the wife has not indicated whether what she has sought the assistance and advice of relatives, welfare officer or anyone for the purpose of effecting a reconciliation. She has not demonstrated that she has done all which is reasonable in this regard. If no attempts at reconciliation have been previously made, the parties must give the conciliatory body a chance to see if they can help in this regard. It is important to note that the husband is willing and pleads for a chance to appear before the conciliatory body to see if they can reconcile the parties.

In the circumstances, I find no exceptional circumstances falling within proviso (vi) to section 106 have been established by the wife. Accordingly, the wife’s application is dismissed with no order as to costs. Dated : 23 September 2022 (S.M KOMATHY SUPPIAH) Judge High Court of Malaya Shah Alam Date of Decision : 25 July 2022 Solicitors : For the Petitioner: Tan Ai Vee, [Messrs Hisham Yoong] For the Defendant: Renuka Devi Krishnasamy, [Messrs V. Samy Renu & Co.]