Suthagar A/L Utrapathy v Jamuna A/P Sanathepathey (JA-33-382-08/2019)

JAMUNA A/P SANATHEPATHEY (P) (NRIC No.:850606-14-5994) …FIRST RESPONDENT

SARAVANMUTHU A/L MUTHUSAMY (NRIC No.:790327-05-5695) …SECOND RESPONDENT

YOGEESWARY A/P KUMARESAN (NRIC No.:810102-05-5454) … THIRD RESPONDENT GROUNDS OF JUDGMENT

The First Respondent Wife (“R1”) via Amended Reply to the Divorce Petition sought damages of RM150,000.00 from the Third Respondent (“R3”) alleging the Petitioner Husband (“PH”) has committed adultery with R3.

After going through the evidence presented during the full trial and having read R3’s written submissions, I dismissed R1’s claim with costs of RM10,000.00, subject to allocator fees, to be paid by R1 to the R3 within fourteen (14) days from the date of the Order.

Below are the grounds of my decision.

The background facts in this case are gathered from the cause papers and submissions filed by the parties in chronological order.

The Divorce Petition was filed on 19.08.2019 under sections 53 and 54 of Law Reform (Marriage and Divorce) Act 1976 [Act 164], inter alia, seeking a dissolution of his marriage to R1 and claiming damages of RM100,000.00 against R2 for causing breakdown of their marriage.

On 23.05.2021, the PH and R2 have recorded a consent judgment with the agreed terms, inter alia, that –

marriage between PH and R1 be dissolved;

(ii) custody, care and control of the three (3) children be given to the PH and the access right be given to R1;

(iii) the PH and the three (3) children will stay at the matrimonial home;

(iv) a sum (parties agreed not disclose the amount) to be paid by R2 to PH; and

judgement in default (“JID”) to be entered against R3.

Subsequently, on 12.09.2022, the JID against R3 was set aside.

The Court has on 27.05.2024, allowed R1’s application to vary the Decree Nisi dated 23.05.2021, inter alia—

custody, care and control of the three (3) children be given to the R1 and the access right be given to PH;

(ii) PH shall pay RM2,250.00 per month as the maintenance for the three (3) children;

(iii) the matrimonial home to be sold within six (6) months and the proceeds of the sale after deducting the balance of the loan amount, all the costs and expenses, shall be shared equally between PH and R1.

R1 alleges that—

PH had entered into a customary marriage with the R3 in 2009;

R3 had visited the matrimonial home and slept with the

the relationship continued and caused the breakdown of the marriage.

R1 also pleaded that the PH was an alcoholic, frequently returned home intoxicated, and physically abused her from the early years of the marriage.

R1 also stated that she left the matrimonial home on or about

13.07.2018.

R3 denied any adulterous relationship and stated that her visits to Johor Bahru were for the purpose of visiting relatives, personal matters including court proceedings, and medical treatment.

During the trial, witnesses were called to testify include R1 (PW1), the two (2) children (PW2 and PW3), R3 (DW 1), PH (DW2) and the husband of R1 (DW3).

I have not considered the submission made by R1 as the submission was filed on 25.10.2025 midnight which was two (2) days before the date fixed for decision. The R1 failed to file the written submission according to the date set by the Court which is 20.06.2025 and only filed her submissions four (4) months after the date as directed by the Court, and two (2) days prior to the date fixed for decision.

I have identified two (2) issues below for the determination of this

whether the R1 has proven, on a balance of probabilities, that the R3 committed adultery with the PH and if proven, was it the cause of the breakdown of the marriage; and

whether R 1 is entitled to damages of RM150,000.00. COURT ANALYSIS AND FINDINGS

whether the R1 has proven, on a balance of probabilities, that the S/N FTqNlxv9t06zntwCZt/slw R3 committed adultery with the PH and if proven, was it the cause of the breakdown of the marriage 16. In order to determine the issues raised by both parties, I will examine the evidence presented during the trial before me. PW1’s evidence 17. PW1 alleged that when she was nine (9) months pregnant with the first child, she discovered that PH and R3 have undergone customary marriage. She claimed there were photographs of a customary marriage between the PH and R3 in 2009. She said her mother in law has confirmed the said customary marriage. However, no photographs were produced in Court. None of the family members were called to testify on this and no immigration records from 2009 were produced to prove that R3 entered Malaysia in 2009. Hence, the allegation therefore remained unsupported by documentary or independent evidence.

PW1 stated in her pleadings that PH and her worked at the same place, Sisco Private Limited Singapore from 2009 till 2011 and they travel to and from home to work place daily. However, in her answer to Question 4 of her witness statement PWSP1, she stated that she discovered “pottou” on the bed on May 2009 when she returned home after working and PH admitted that R3 came and slept with him on the bed. However, in paragraph 23 of her pleadings, she stated she saw the “pottou” in year 2011. There is a clear contradiction as to the year R1 discovered “pottou” on their bed.

The allegation of “pottou” was denied by SD2 during cross-S/N FTqNlxv9t06zntwCZt/slw examination [see page104 Notes of Proceedings (“NOP”)].

During the cross-examination, PW1 stated she has a work schedule to prove that they were working on shift. However, the work schedule was not produced (see pages 188 to 189 of the NOP”). If the allegation that PH and PW1 were travelling together and working at the same place is true, it raises doubt as to how the PH and R3 were sleeping together on the bed on a working day.

Further, PW1 in her testimonial (see PWSP1- Question 8) stated in year 2018, she discovered R3 still having a relationship with PH and both slept together in their rooms. She informed that after she was chased out from the house, R3 has brought all her clothing and stay at the house with PH in the same room. When she visited the children on 29.02.2020, she was shocked to see R3 inside the house. Her maid and her neighbour informed her that R3 was staying at the house since she left the house and used her belongings.

PW1 in her testimony informed that she was chased out from the house and moved to her mother’s house at Selangor in year

However, in her pleadings at paragraph 33, she stated she left the matrimonial home on 13.07.2019. In paragraph 94 of her pleadings, PW1 mentioned the date she left the matrimonial home on 13.07.2018. Her evidence in court clearly contradicted with her pleadings.

During trial, PW1 informed that her maid’s name is Kalaishelvi and she has sent her back to India (see page 181 of NOP). Her evidence is contradicting with her pleadings in paragraph 36 S/N FTqNlxv9t06zntwCZt/slw where she stated that she has engaged an Indonesian maid by the name of Mak Hafiz and the Indonesian maid will stay at the prayer room or stay with her children. However, in her testimony in Court, she said the maid will come to her house daily to assist her doing house works. There is a material contradiction on the name of the maid and it raises doubt as to the veracity of her evidence. Such contradiction seriously affects her credibility as a witness.

PW1 further stated that her son Paavineshwaran (PW2) also informed her that R3 and PH stayed in the house and taken liquor every night, they were hugging and stayed in the same room.

PW1 has made a police report on the incident on 29.02.2020. Despite the police report made and police came to the house, no action was taken against R3 and the photographs in pages 3-4 of A1 [ID4 (a)-(d)] merely show R3 was standing outside the house with the police. Further, the video showing R3 left the house in a rushing manner by taking Grab does not prove the PH and R3 were having an adulterous relationship.

PW1 also alleged that R3 and her husband has divorced. However, she admitted she did not have any evidence to prove that (see page 195 NOP). Her allegation was rebutted by the R3’s husband (SD3) when he gave evidence in Court (see Question 23 of SD3’s witness statement).

Further, I find that all her evidence of the adulterous relationship was based on the information given by her two (2) sons, PW2 and PW3, her maid and neighbor. Although PW2 and PW3 have testified in Court, they did not produce any document to support S/N FTqNlxv9t06zntwCZt/slw their allegations. Their evidence was not corroborated with any contemporaneous documents. PW2 and PW3’s evidence 28. PW2 is the eldest son of PH and R1. He states in his testimony that R3 was added as third party in this case. He could not explain what is the meaning of third party.

He further state that PH and R3 together with him and his siblings went for holiday at Genting Highland in December 2019. He said PH and R3 stayed in the same room. He saw PH and R3 was hugging and kissing. He heard the moaning sounds from the PH’s room. He went to PH’s room and discovered R3 was in the room (see Question 9 of PWS2).

No receipts, booking records, or photographs were produced to support the alleged trip to Genting Highlands. SD2 who is PH denied the trip to Genting Highlands.

PW2 also informed that around December 2019, R3 stayed at their house for a week. He saw the PH and R3 took alcoholic drinks at the living hall. Around 4.30am, when he went down to the living hall, he saw PH was undressed, R3 was hugging PH and sleeping. He saw a lot of empty beer cans beside the mattress. He used the phone of the maid and took video. He informed PW1 of the incident the following day.

No video recording was ever produced by PW2 and the maid’s phone was not tendered during the trial. PW2 claimed the memory in the maid’s phone was deleted due to reset password. S/N FTqNlxv9t06zntwCZt/slw The testimony of PW2 on he has reset the maid’s phone is doubtful and he could not explain why he can reset his maid’s phone. If the allegation of PW2 is true, there is no reason why such important evidence was not present in Court.

PW2 admitted that he has lodged a police report on 02.05.2021 (see page 5 Bundle B1) to state R1 has asked him to fabricate the truth in Court. However, when he was giving testimony in Court, he denied making such report and informed that PH promised to buy him a handphone for making the police report (see page 260 NOP).

SD2 who is PH has testified that in year 2019, R1 went to their house and quarreled with PW2. R1 has asked PW2 to lie in Court and destroy all the evidence. SD2 has informed this matter to the Investigating Officer (“IO”). Upon the advice of the IO, PW2 lodged the police report (see pages 82 to 83 NOP).

PW2 informed that he has scolded R1 when R1 came to their house while he and his siblings, R3 and PH were outside the house playing badminton (see page 232 NOP). PW2 also informed that PH instructed he and his siblings to call R3 as “Amma”(mother) and he did not like it.

The video recording showed PW2 scolded R1 when R1 making commotion and scolding in Tamil language on 29.02.2020. R3 was seen standing outside the house. Despite that, PW2 has changed his stance and testified against R3 and PH in Court.

I refer to the case of Foo Kok Soon v Leony Rosalina (1999) 1 MLRH 734 where it was held that— S/N FTqNlxv9t06zntwCZt/slw “The courts regard the clear and positive views of a mature young person as a most important factor; but they do not, regard the views of the child as being conclusive. This is partly because children are naturally anxious not to offend the parent with whom they are living; and there may even be cases in which the views expressed by the child are not an independent exercise of his own will but merely the views of one parent "assiduously instilled” into the child. But even if the court accepts that the child is expressing his own deeply held views it will not necessarily give effect to them, for it may take the view that the views expressed are manifestly contrary to the child's long-term interest.”. [Emphasis added]

In the present case, it is pertinent to note that the police report was made on 02.05.2021 when PW2 was staying with PH and subsequently pursuant to Court Order dated 27.05.2024, PW2 was staying with R1. Further, PW2 admitted during cross-examination he has been expelled from school as he took vape at school.

SD2 has informed that PW2 had discipline problems and he has suggested to send PW2 to hostel but PW2 did not want to go and chose to stay with R1.

Applying the principles in the above authorities, the credibility of PW2 is at doubt as to the accuracy of his evidence and he changes his stance depending whom he is staying.

The video recording tendered merely showed the R3 was outside the house during the badminton incident and later R3 hurriedly leaving in a Grab vehicle.

There was no video evidence showing any act of adultery or sexual conduct.

I am of the considered view that adultery cannot be inferred merely from presence at a premise without clear and cogent proof of intimate conduct.

SP3 is the second son of PH and R1. He informed that he knew R3 on 18.03.2019 (see page 269 NOP). He has stated in answer to Question no. 5 of his witness statement that PH brought R3 to their house to celebrate his sister’s birthday.

Although both PW2 and PW3 stated that R3 attended their sister’s birthday, but both of them mentioned different year. PW2 mentioned it was 18.03.2018 whereas PW3 stated it was 18.03.2019.

PW3 informed that R3 worked at Singapore and will come to their house on non-working day. For other days, PH would video call and speak to R3.

PW3 further informed he saw PH kissed R3 via video call and said “I miss you” and “I love you”. He said he saw the WhatsApp messages between PH and R3. He took a screenshot and sent the message to his own phone.

None of the WhatsApp messages between PH and R3 and PW3’s phone was ever produced in Court to verify his statement. R3’s evidence

R3 on the other hand informed that she went to the house to invite PH to attend her mother first year death anniversary. R3 has produced death certificates of her mother and her brother’s address at Taman Puteri Wanga which was marked as D14.

R1 raised the issue on the yogurt business by the name of Sugi Milk Products Store by the PH and R3, alleging the name “Sugi” is the combination of Suthagar (PH) and Yogeswary (R3) to show their personal union and adulterous relationship. R1 also claimed that the business was registered in Malaysia on 12.09.2022, which is after divorce proceedings had commenced, is a belated and cynical effort to cover their relationship.

R3 explained that it is a partnership business between PH and R3 at Johor Bahru by the name of Sugi Milk Products Store. R3 and her husband has another business by the name of Sugi Milk Products Store LLP at Singapore. This has been confirmed by the SD3, who is R3’s husband.

R1 alleged that PH has transferred a substantial sum from his joint account with R1 to R3 to pay for her personal expenses including housing installment (see pages 47-49 NOP) and it showed the PH has provide financial aid for their intimate relationship and not as a business partner.

R3 explained that she sought the help of PH to pay her house installment and expenses. She will then transfer back the money to PH’s Singapore Account, POSB (see pages 47-49 NOP). No documentary evidence was produced to support her evidence.

R3 also produced the record of her movement in year 2018 to 2020 from Immigration Department to explain the date she entered and left Malaysia. R3 explained that she will stay at her sister, brother or uncle’s house every time she came to Johor Bahru. Her sister, Saraswathy despite being subpoena, was not present to testify that R3 did stay at her house when she was at S/N FTqNlxv9t06zntwCZt/slw Johor Bahru. There is no record to show she has been staying with her brother or uncle.

SD3 stated that every time when R3 was at Johor Bahru, she will either stay at her brother, sister or uncle’s house. He further state that he knew PH and R3 informed him that PH was her former colleague who stayed at Johor Bahru. He knew R3 went to PH’s house and denied she stay overnight at his house. He knew about it because R3 has informed him or video call him (see pages 134-135 NOP).

SD3’s evidence corroborated the evidence of R3. There is no reason for SD3 as the husband of R3 to lie in Court if the allegation that PH and R3 are having extra marital affairs is true.

R3 never denied she was at PH’s house when R1 came on 29.02.2020. R3 claimed she and PH are close friends and business partners. She denied she is having an affair with PH.

I find that the mere presence of R3 in PH’s house itself without any contemporaneous evidence cannot prove they have an intimate relationship.

R3 was found to keep changing her version on the place she stayed at Johor Bahru when she was asked as to the date she stayed at Johor Bharu and the date she left Johor Bharu based on her movement record from Immigration Department from 2018, 2019 and 2020. I found although there is inconsistency in her version, it does not change the fact that R1 has failed to prove there is adulterous relationship between the PH and R3.

I further find that although there is evidence to show the PH did S/N FTqNlxv9t06zntwCZt/slw transfer some money to R3, the evidence does not prove they have an intimate relationship.

It is trite law that the burden is on the R1 to prove PH and R3 has an adulterous relationship and caused irretrievable breakdown to their marriage. It was decided in the case of Iva v ROM (WA-33- 79-02/2023), that standard of proof is on balance of probabilities and the standard of proof is a higher standard as the allegation of adultery is extremely serious in nature.

I refer to the case of Lob v. Hob; Cob (Party-Cited)[2025] MLRHU 2121 where the High Court held that— “[20] The classic formulation is found in Clarkson v. Clarkson [1930) 143 LT 775, 46 TLR 623, where adultery is defined as voluntary sexual intercourse between a man and a woman who are not married to each other, with at least one of them being married to another person. This definition highlights the requirement for evidence of a physical sexual relationship, mere suggestive messages or compromising photographs are insufficient. … [22] Accordingly, the evidence must go beyond raising mere suspicion or establishing opportunity. It must be cogent enough to lead the Court to conclude that adultery must have taken place, having regard to the circumstances. Where the evidence is purely circumstantial, the Court will not infer adultery unless the facts presented are incapable of any other reasonable explanation.”. [Emphasis added]

The case of Clarkson v. Clarkson [1930) 143 LT 775, 46 TLR 623 was referred in the case Iva v ROM (supra) which has explained adultery as follows: S/N FTqNlxv9t06zntwCZt/slw “[20] The classic formulation is found in Clarkson v. Clarkson [1930] 143 LT 775, 46 TLR 623, where adultery was defined as voluntary sexual intercourse between a man and a woman who are not married to each other, with at least one of them being married to another person. This definition highlights the requirement for evidence of a physical sexual relationship, mere suggestive messages or compromising photographs are insufficient. … [41] WhatsApp messages - The Petitioner alleged that she had personally seen WhatsApp messages exchanged between the Respondent and the Co-Respondent on the Respondent's mobile phone, which she claimed demonstrated an adulterous relationship. [42] However, no such WhatsApp messages were adduced as evidence before the Court. The Petitioner's case rested entirely on her own narration of what she purportedly saw, without producing the messages themselves, whether in the form of screenshots, printouts, or certified electronic records. She also did not provide any forensic extraction report or other objective verification of the alleged communications. Moreover, the Petitioner was unable to state the precise wording of the messages, or even reliably recall their exact content, dates, or context. [43] In the absence of the primary documentary evidence, her testimony amounted to no more than an uncorroborated and subjective account. Such unsubstantiated oral assertions fell far short of the standard required to establish adultery, particularly given that allegations of such gravity demand clear, cogent, and convincing proof. … S/N FTqNlxv9t06zntwCZt/slw [46] Adultery, as recognised in matrimonial jurisprudence, requires proof of voluntary sexual intercourse between a married person and someone who is not their spouse. The act must involve physical intimacy of the kind that satisfies the legal definition; mere suggestive conduct, sexual innuendo, or the giving of intimate gifts falls short of this threshold.”. [Emphasis added]

Further, I refer to the case of Oh Leong Thye v. Wong Yoke Kuen & Anor [2018] 4 MLRA where the Court of Appeal agreed with the findings of the Judicial Commissioner as follows: “The court observed that:

The multimedia messages of "I Love you" send by the 2nd respondent to the 1st respondent does not amount to adultery. The Petitioner could not prove that the 2nd Respondent had sent message to the 1st respondent stating that he wants to have sex with her.

The issue of the 1st respondent having the 2nd respondent's Genting Highland's membership card in her hand bag does not mean that they are having an adulterous relationship.”. [Emphasis added]

Applying the principles in the authorities above, the evidence of adultery must be clear, convincing and not merely based on suspicion. There was no direct or sufficient circumstantial evidence to prove physical intimacy. Inference itself is not sufficient proof.

The mere WhatsApp’s messages between PH and R3 does not prove they are having an adulterous relationship. Moreover, in S/N FTqNlxv9t06zntwCZt/slw the instant case, none of the WhatsApp’s messages or video recording of the physical intimacy were ever produced in Court. Mere presence of R3 in PH’s house do not support the allegation of R1 that they have an intimate relationship. All the allegations of R1 was not supported by any contemporaneous documents. The testimony of PW2 and PW3 were not sufficient to support an inference of adultery.

I further find that R1 has tolerated the alleged adulterous relationship between PH and R3 (if her allegation is true). R1 alleged that she was aware the PH and R3 had undergone customary marriage way back in 2009 and discovered “pottou” on their bed in May 2009, yet she was still living with PH as husband and wife till 2018 when she moved out from the house.

Hence, I am of the considered view that R1’s action amounts to tolerance of the adulterous relationship, if proven between PH and R3. No action was taken by R1 to file any divorce petition,

It is significant to highlight that the Divorce Petition was filed by PH on 19.08.2019 against R1 and R2 based on the allegation of adulterous relationship between them. The allegation of adulterous relationship was made by R1 only in year 2020 when R3 was added through her amended Reply to the Divorce Petition via the Court Order dated 21.07.2020.

It is further fortifying my view that allegation of the adulterous relationship between PH and R3 was an afterthought and a revengeful action against PH. I rule that R1 has failed to prove PH and R3 has physical intimacy and thus R1 has not discharged the burden of proof on balance of probability.

whether R 1 is entitled to damages of RM150,000.00 71. Based on R1’s own pleadings, the marriage had been troubled since 2009 due to the PH’s conduct, including alcoholism and abuse.

PH in his petition has alleged the cause of the breakdown of their marriage was due to the adulterous relationship between R1 and

It is pertinent to note that the marriage between PH and R1 has been dissolved by way of consent judgment and R2 has agreed to pay certain amount (parties agreed not to disclose the amount) to PH as compensation.

I am of the considered view that the breakdown of the marriage of PH and R1 was due to the adulterous relationship between R1 and R2 since 2018. This is admitted by the parties when they have agreed to divorce on 23.05.2021.

As decided in paragraphs 65 to 67 above, the R1 has failed to prove there is a physical intimacy between PH and R3 and therefore, I dismissed R1’s claim for RM150,000.00.

Upon evaluating the totality of the evidence, I find that—

R1 has failed to prove adultery on a balance of probabilities;

the evidence adduced was insufficient and largely inferential;

material inconsistencies in the pleadings and testimony of R1 undermined her credibility as a witness; and

R3 cannot be held responsible for the breakdown of the S/N FTqNlxv9t06zntwCZt/slw marriage between PH and R1.

Therefore, I dismissed R1’s claim with costs of RM10,000.00 subject to allocator fees, to be paid by R1 to the R3 within fourteen (14) days from the date of this Order Dated 20 March 2026. Signed by: Sgd. ……………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the R1: Mr. G K Sritharan Messrs G. K. Sritharan & Co. Counsel/Solicitor For the R3: Ms. Bharathi a/p A. Krishnan Messrs K. Bharati & Co.