Tan Siew Khoon (Isteri) [No. K/P: 681027-08-5160] v Phuah Ching Kiong (Suami) [No. K/P: 640802-02-5409] (PA-33-406-10/2023)

[4] PW's claim that the marriage has broken down and cannot be “saved” due to the alleged matters that RH is involved in adultery, “extreme behaviour” that the PW cannot reasonably be expected to be able to live with RH. 3 [5] The PW has referred to the Conciliation Council/Marriage Tribunal at the National Registration Department of Seberang Perai Selatan, Penang (JPN) for reconciliation and counselling but it was cancelled due to RH's failure to attend at least one counselling session. PW has informed the RH about the appointment dates by the JPN. RH was told to attend and take part in the counselling sessions. [6] There is an allegation in the Affidavit from PW that on 29.03.2023, RH sent an SMS message to PW and informed that RH did not intend to attend the counselling session at JPN. On the other hand, PW attended all three counselling dates on 18.01.2023, 22.02.2023 and 29.03.2023. [7] The Conciliation Council / Marriage Tribunal has confirmed that the RH has failed to attend any reconciliation attempts through a letter from the JPN dated 29.03.2023. After obtaining the confirmation from the JPN (KC28), PW filed a Petition together with an application to be exempted from being referred this matter to the Conciliation Council / Marriage Tribunal under Section 106(iii) LRA due to the failure of RH to attend. Application under Order 18 Rule 19 of the ROC 2012 [8] RH applied for striking out with the following orders: -

(a) Petisyen Perceraian bertarikh 1.8.2023 yang difailkan di dalam ini pada 6.10.2023 (Lampiran 1) adalah dibatalkan;

(b) Segala prosiding Petisyen Perceraian ini adalah ditangguhkan sehingga pelupusan muktamad permohonan ini; dan 4

(c) kos permohonan ini dan kos Petisyen Perceraian ini adalah ditanggung dan dibayar oleh Pempetisyen kepada Responden. The cause papers [9] Here are the cause papers that have been filed and referred to:

(a) Petisyen Perceraian bertarikh 1.8.2023 yang hanya difailkan di dalam ini pada 6.10.2023 (Lampiran 1) (“Lamp.1 Petisyen Perceraian”);

(b) Afidavit oleh Pempetisyen untuk Menyokong Petisyen yang diikrarkan oleh Pempetisyen pada 1.8.2023 dan hanya difailkan di dalam ini pada 6.10.2023 (Lampiran 2) (“Lamp.2 Afidavit Pempetisyen”);

(c) Notis Permohonan (Permohonan Responden untuk membatalkan Petisyen Perceraian) bertarikh 20.11.2023 (Lampiran 8) (“Lamp.8 Notis Permohonan”);

(d) Afidavit Sokongan (Permohonan Responden untuk membatalkan Petisyen Perceraian) yang diikrarkan oleh Responden pada 20.11.2023 (Lampiran 9) (“Lamp.9 Afidavit Sokongan Responden”);

(e) Afidavit Jawapan Pempetisyen yang diikrarkan oleh Pempetisyen pada 6.12.2023 (Lampiran 10) (“Lamp.10 Afidavit Jawapan Pempetisyen”);

(f) Afidavit Balasan (terhadap Afidavit Jawapan Pempetisyen yang diikrarkan pada 6.12.2023) yang diikrarkan oleh Responden pada 21.12.2023 (Lampiran 11) (“Lamp.11 Afidavit Balasan Responden”); 5

(g) Afidavit Jawapan Pempetisyen (2) yang diikrarkan oleh Pempetisyen pada 3.1.2024 (Lampiran 12) (“Lamp.12 Afidavit Jawapan Pempetisyen (2)”); dan

(h) Afidavit Balasan (2) (terhadap Afidavit Jawapan Pempetisyen (2) yang diikrarkan pada 3.1.2024) yang diikrarkan oleh Responden pada 18.1.2024 (Lampiran 19) (“Lamp.19 Afidavit Balasan Responden (2) Issues [10] Among the main issues are:

(a) whether the RH still lives at the Merbok Residency address (samada RH masih bertinggal di alamat Residensi Merbok) Arguments of both sides [11] RH argued and denied that he currently lives with the Co-Respondent at the said address (Changlun). However, when the PW's solicitor attempted to deliver the Divorce Petition and Petition documents to the RH at the said address (Changlun) through AR registered post, it was found that the Co-Respondent had signed the AR card and received the divorce petition documents on behalf of RH, [12] It is PW's submission that at all material times, RH also did not deny that he had received the Divorce Petition through the Co-Respondent and had known about the need to attend the JPN. 6

(b) whether the RH is living together with the Co-Respondent at the Changlun address (samada RH adalah tinggal bersama dengan Responden Bersama di alamat Changlun) Arguments of both sides [13] RH has stated that PW has alleged that the Respondent lives with the Co-Respondent in Changlun is based on hearsay and PW does not have his own personal knowledge. [14] RH also claimed that PW failed to state the “source of the hearsay” and that the Petitioner could not confirm the Respondent's claim of living with the Co-Respondent in Changlun. [15] PW argued that since RH's claims that the Divorce Petition filed based on hearsay sources, the evidence of the witnesses should be proved during hearing or full trial. Therefore, the Respondent's application should not be allowed and dismissed with costs.

(c) the RH's claim that the Divorce Petition is based on hearsay (dakwaan RH bahawa Petisyen Perceraian tersebut adalah berdasarkan dengar cakap) 7 Arguments of both sides [16] RH has stated that PW has alleged that RH lives with the Co-Respondent in Changlun based on hearsay and not in the PW's own knowledge. [17] The RH also alleged that the PW failed to state the source of the hearsay and that the PW could not verify the RH s claim of living with the Co-Respondent in Changlun [18] RH claimed that at all material times he was still living at the Merbok Residency address while the PW maintained that RH had been living with the Co-Respondent in Changlun. [19] PW argued that since there was RH's claim that the Divorce Petition was filed based on hearsay sources, the evidence of the witnesses should be called through a full hearing. Therefore, this RH application should not be allowed.

(d) the JPN letter was not delivered to the Respondent at the Merbok Residency address (surat JPN tidak diserahkan kepada Respondent di alamat Residensi Merbok) [20] PW further argued that if RH's claim that he lives at the Merbok Residence address is true, then the Respondent should have received notice 8 from the JPN to attend all three counselling sessions for marital reconciliation. [21] Furthermore, at all material times, the Respondent also did not deny that he had received notice from the JPN to attend counselling sessions. [22] In addition, RH also raised the issue that the JPN letter was not delivered to him at the Merbok Residence address but at another address, namely No. 58-1, Taman Cenderawasih Indah, 14300 Nibong Tebal, Penang. However, RH does not deny that the address of Taman Cenderawasih Indah is the address of their son's shop. [23] PW argued that the issue of the RH’s address on the JPN letter is an irrelevant issue. In any case, RH did not and/or could not show that RH was prejudiced because the address of Taman Cenderawasih Indah was used as the address for correspondence between RH and the JPN. Since there is a dispute on the facts, this case should be heard in full through the evidence of witnesses rather than summarily. [24] PW argues that the issues and questions of fact and/law raised by the RH should be determined by examining the witnesses through a full hearing. Therefore, the RH's application here should be rejected due to the fact that there are disputed factual issues by the parties as shown in the Affidavits. 9 Court Analysis [25] This Court does not want to comment on the principle of striking out, it is a well-established law that this principle is always based on the main case i.e the case of BANDAR BUILDER SDN BHD & ORS V. UNITED MALAYAN BANKING CORPORATION BHD [1993] 1 MLRA 615, it was stated that, "The principles upon which the Court acts in exercising its power under any of the four limbs of O. 18 r. 19(1) Rules of the High Court are well settled. It is only in plain and obvious cases that recourse should be limited to the summary process under this rule (per Lindley M.R. in Hubbuck v. Wilkinson [1899] 1 QB 86, p. 91), and this summary procedure can only be adopted when it can be clearly seen that a claim or answer is on the face of it "obviously unsustainable" (Attorney-General of Duchy of Lancaster v. L. & N.W. Ry. Co. [1892] 3 Ch. 274, CA)…” . (see Suppuletchimi Karpaya v. Palmco Bina Sdn. Bhd. [1994] 1 MLRH 299, Sumatec Resources Berhad v. Chan Yok Peng & Ors [2019] MLRHU 1139) [26] In the case of PENGIRAN OTHMAN SHAH PENGIRAN MOHD. YUSSOF & ANOR. V KARAMBUNAI RESORTS SDN. BHD. & ORS [1995] 2 MLRA 172, the Court of Appeal held that “…Whether a case is plain or obvious does not depend upon the length of of time it takes to argue the case but that when the case is argued on the affidavit evidence available, it becomes plain and obvious that the case has no chance of success. Mckay & Anor. v. Essex Area Health Authority & Anor. [1982] 2 AER 771.” 10 [27] RH has argued that the application to be exempted from referral to the tribunal cannot be made together but must be made separately from the Divorce Petition, depending on the case of PEH CHIN PING v. GAN HO SOON [2021] MLRHU 2837, 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.” [28] In rebutting the argument, the Learned Counsel for the PW refers to the case of LIM SZE MEY LWN LOOI GUAN HEON [2022] CLJU(O) 37 [CA], (this is just an order without any reason), where the Court of Appeal held : MAHKAMAH RAYUAN MALAYSIA PUTRAJAYA PERINTAH KORUM HAS ZANAH MEHAT HMR 11 CHE MOHD RUZIMA GHAZALI HMR SEE MEE CHUN HMR RAYUAN INI ditetapkan untuk perbicaraan pada hari ini dalam kehadiran Kan Weng Hin (Goh Loh Boon bersamanya), peguamcara bagi pihak Perayu dan Responden tidak hadir DAN SETELAH MEMBACA Rekod-Rekod Rayuan dan yang kesemuanya difailkan di sini DAN SETELAH MENDENGAR Rekod-Rekod Rayuan dan yang kesemuanya difailkan di sini MAKA ADALAH DENGAN INI DIPERINTAHKAN SECARA SEBULAT SUARA bahawa:

Rayuan ini dibenarkan sepertimana permohonan Perayu di perenggan 38(a) Petisyen Perceraian bertarikh 11 Jun 2020; dan

Permohonan-permohonan yang lain oleh Perayu dalam Petisyen Perceraian bertarikh 11 Jun 2020 dikembalikan untuk didengar di hadapan Mahkamah Tinggi Keluarga di Shah Alam. Bertarikh pada 6 April 2022. (DEVINDERJIT KAUR GILL) TIMBALAN PENDAFTAR [29] The order of the High Court [SZE MEY LWN LOOI GUAN HEON [2021] 8 CLJ 766] was set aside (at the High Court level, the Appellant's Divorce Petition was struck out because the High Court judge ruled that one cannot present the petition and, at the same time, in the Divorce Petition, apply for dispensation). By referring to the Court of Appeal case, the PW argues that there is no legal requirement under s. 106 (1) LRA1976 to make a separate originating suit application to obtain an order of exemption from the Marriage Tribunal or prior to the filing of this Divorce Petition. 12 [30] This Court agrees with PW's argument because there has been a decision of the Court of Appeal related to this issue which has overruled the decision of the High Court regarding the need to file separately for exemption under Section 106 LRA 1976 through OS. In this case, the court ruled that the PW can make the application together with the Divorce Petition. RW's argument on this issue is rejected. [31] Now, this court will comment on the issue of whether PW has met the conditions under the exception of Section 106 (iii) of the LRA 1976 Before filing an answer to the petition, the RH raised a preliminary objection which was that there was non-compliance with Section 106 (iii) LRA 1976. The said section reads:

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

The reference of Section 50(1) is misplaced as the deals with the dispensation of the 2-year period.

On the merits of the appeal, we are of the considered view the PW has fulfilled the requirement in the proviso where the RH has wilfully failed to attend before the Conciliatory Body when his presence was required. This is evident from the letter dated 7/11/2019 issued by the National Registration Department.

We would therefore allow the appeal in terms of prayer 38(a) of the Divorce Petition and remit the other prayers to be heard before the family court in Shah Alam. Case management on 13.4.2022 e-review." This court, when referring to S106 (iii) of the LRA is clear that the court must be satisfied that the conditions in the exemption have been met. In this case, the court considered PW's argument that the facts of this case are the same as the case based on the said order, which is the failure of RH to appear after being notified by JPN. 14 [34] The Learned Counsel for PW further argues that the JPN 's letter dated 29.03.2023 is strong evidence to shows that the RH was informed by the JPN but the RH failed / refused to attend all the JPN counselling sessions. Therefore, the PW should be granted an exemption to obtain a certificate from the Conciliation Tribunal in the form of JPN. KC29 and allowed to proceed with this Divorce Petition. [35] Therefore, the RH cannot rely on the JPN Issue (JPN.KC28) to struck out the Divorce Petition on the grounds that the Divorce Petition was filed without a certificate from the Marriage Tribunal in the form of JPN.KC29 or there is no order to exclude the referral of problems to the conciliation body or the Tribunal. [36] On the other hand, it is the essence of RH's argument, the PW’s failure to obtain the Court's order for the exemption of the referral of hardships or marriage affairs to the conciliation body / Marriage Tribunal ("Exemption Order”) first, before filing the Divorce Petition, is fatal. [37] This Court agrees that this Court is bound by the decision of the Court of Appeal, but there is an exception related to the situation where there is no full grounds of judgment, then this court will not be bound only based on the order. In the case of AMGENERAL INSURANCE BHD V SA' AMRAN A/L ATAN & ORS AND OTHER APPEALS [2022] MLJU 1771. The Federal Court held that: [83] Before dealing with the two leave questions, we shall first deal with the 1st appellant’s contention that Rasip bin Hamsudi was decided without jurisdiction on the ground that 15 it did not follow Azhar bin Azizan (leave question 2) which according to learned counsel has now become the decision of this court since the 3rd party’s application for leave to appeal against the decision of the Court of Appeal in that case was refused by this court. [84] With due respect, we do not think that is a correct statement of the law. First of all, the Court of Appeal in Azhar bin Azizan did not provide any grounds for affirming the decision of the High Court and dismissing the intended intervener’s appeal. A decision without the grounds of judgment cannot be regarded as authoritative and binding: See Tirumeniyar a/l Singara Veloo (supra at paragraph 56 above).” So in this case, the court is not bound by the order of the appeal court because the court is not in a valid position to decide that the facts of the case are the same as in this case and also why or what is the reason that the court has decided that "RH,.. These facts is important because, it needs to be proven in court that RH has been. If this is done then, KC 29 will be issued for this application to be made. In this case, there is a fact that KC28 issued by JP is due to RH's failure to appear but there is no record that RH . ... [38] In rebutting the allegations, the RH submits that:

(a) tangkapan skrin mesej SMS langsung tidak mengandungi apa-apa butir yang menunjukkan bahawa Responden adalah penghantar mesej SMS (the screenshot of the SMS message does not contain any details which indicates that the Respondent is the sender of the SMS message); 16

(b) nombor telefon penghantar mesej SMS adalah tidak diketahui kerana nombor telefon yang tertera di tangkapan skrin mesej SMS adalah tidak lengkap iaitu “+6012-494...”; (the phone number of the sender of the SMS message is unknown because the phone number shown on the screenshot of the SMS message is not complete i.e. "+6012-494...");

(c) the date of sending the SMS message is also unknown because only "Yesterday, Monday" is written on the screenshot of the SMS; (tarikh menghantar mesej SMS juga tidak diketahui kerana hanya “Semalam, Hari Isnin” tertera di tangkapan skrin SMS);

(d) the screenshot of the SMS message only states “... if I am not present” and not "I will not be present (tangkapan skrin mesej SMS hanya menyatakan “... jika saya tidak hadir” dan bukan “saya tidak akan hadir”);

(e) ia adalah tidak logik untuk surat JPN bertarikh 29 Mac memaklumkan sesi kaunseling pada tarikh yang sama iaitu 29 Mac. (it is illogical for NRD's letter dated 29 March to inform counselling session on the same date which is March 29). [39] It should be noted that in this case also the PW relies on the SMS to prove that it was sent by the RH. However, this Court accepted RH's argument that there was doubt about the SMS, especially that there was no complete phone number to prove it belonged to RH, moreover, the date of transmission was on March 29 without the year. 17 [40] Regarding the address, there is also doubt as to whether it is the actual address of the delivery, especially the delivery at the home address of RH's son's shop. [41] The Court also further refers to Rule 8 Divorce & Matrimonial Proceedings Rules 1980 (“DMPR”): “Contents of the divorce petition to be Form 2 (General Form of Petition). This statutory Form under para 9 requires narration at reconciliation. (The following attempts at reconciliation have been made:...) which will be satisfied by the production of JPN.KC29 or order for dispensation from the Court” [42] It is clear that the certificate from the JPN must be in the form of a prescribed certificate. In the present case. Section 106 LRA 1976 is grounded 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 KIM CHOONG [2010] 4 CLJ 843). [42] 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). In the case of Thiroonyanasambantham a/l Kumaran v Nithiya a/p Balayoothom [2023] MLJU 740, held that : “[27] In our case, since the divorce petition had already been erroneously filed without a dispensation or JPN.KC29, therefore that legal prerequisites to filing the divorce petition had not been followed, rendering the cause papers filed premature and not in order. 18 [43] On the other hand, PW did not fulfil or subject to any proviso Section 106(1) Law Reform (Marriage and Divorce) Act 1976 which is the ground for seeking an Exemption Order in the Divorce Petition. [44] In the Affidavit, the PW's states that: "On or around March 2023 where both the Petitioner and the Respondent have been required to attended a counselling session on 29.3.2023, the Respondent has sent an SMS message to me (the Petitioner). I (the Petitioner) have informed by the Respondent that the Respondent has received a letter from JPN to attend a counselling session for the purpose of marriage reconciliation. The respondent has told me that he does not intend to to attend a counselling session at JPN in his message." (SMS messages). [45] As mentioned before, PW must prove that the RH “has wilfully failed to attend” before the Marriage Tribunal or Conciliation Council. If there is no answer (by SMS as alleged) from RH, then the Court agrees that RH can be considered “has willingly failed to attend” before the Marriage Tribunal or Conciliation Council. [46] PW argued that the disputed facts show that the Court can determine it based on a full trial. With the greatest respect to the Learned Counsel for the PW, this argument is deviated from the legal norms and the requirements of Section 106 LRA 1976 itself. This is because Section 106 LRA 1976 is a mandatory pre-condition before a petition can be filed. This is clear when we refer to the intention that it is created as follows based on excerpts from the case of C v. A [1998] 4 CLJ 38 : 19 “Reason for The Introduction Of Section. 106 LRA 1976 The Royal Commission A Royal Commission was set up before the amendment of the Act to look f into various issues relating to the marriage and divorce laws of non-Muslims. Its report called “Report of the Royal Commission on Non-Muslim Marriages and Divorce Laws” was dated 15 November 1971 (the Report). I shall confine my review of the report to issues related to s. 106 of the Act. Whilst recommending that marriages ought to be dissolved under circumstances which g make it “just and reasonable” and that enquiries should be made by the court into facts to satisfy itself that the marriage had indeed irretrievably broken down, the report also recommended: that attempts at reconciliation be made before the filing of any petition for divorce and that proceedings in court may be adjourned at any stage and for such period as the court thinks fit, to encourage reconciliation. In relation to the reconciliation aspect of its report the Commission was of the view that since in Christian churches and communal bodies among Chinese and Hindus there are respected elders whose words are listened to with respect, their services together with that of justices of peace may be utilised for the setting up of conciliation councils. ……………. Prerequisite It is clear that pursuant to s. 106(1) of the Act, obtaining a certificate from the conciliatory body that it has failed to reconcile the parties is a pre-requisite, subject to the provisos….” [47] It is the responsibility of the court to ensure that this pre-condition is complied with and if the PW wants to rely on "has willingly failed to attend" 20 then it needs clear evidence before the Court before this application is allowed. The evidentiary burden is trite that he/she who alleges a fact is duty-bound to prove that fact (see s.101, 102, and 103 of the Evidence Act 1950). [48] Touching to some extent on the Learned Counsel for the PW's argument that the issue related to an exception (refer to tribunal) that can be determined during the trial cannot be accepted by this court. The issue related to the reference to the tribunal, during the trial can only be decided if the court thinks, during the trial there is still “a hope that the marriage can be saved”. This is in accordance with Section 55 LRA 1976. Under Section 55(2) LRA, which provides: “55(2) If at any stage of proceedings for divorce it appears to the Court that there is a reasonable possibility of a reconciliation between the parties to the marriage, the Court may adjourn the proceedings for such period as it thinks fit to enable attempts to be made to effect such a reconciliation. The power conferred by the foregoing provision is additional to any other power of the Court to adjourn proceedings.” (see Ng Choon Mei v Yap Kean Hong [2021] MLJU 1096) [49] So if this Court accepts the Learned Counsel for the PW's argument, then it is against the real purpose or intention of Sections 106 and section 55 LRA 1976. [50] The Court of Appeal in THE CARBON CO SDN BHD & ANOR V NG LEE HOON (CONDUCTING UNDER ‘FOREST WOOD FLOORING’) [2017] 4 MLJ 791, stated this fundamental principle of evidence as follows: 21 “[49] The law on the burden of proof is so settled. Pursuant to s 101 (1) of the Evidence Act 1950, a party who desires the court to give judgment in its favour as to the legal right or liability bears the burden to prove its case. The burden of proof on that party is twofold, firstly the burden of establishing a case and secondly the burden of introducing evidence. This burden lies on the party throughout the case and the standard of proof is on the balance of probabilities. Once that party has discharged its evidential burden of proof then the burden would then shift to its adversary. If a party has failed to discharge its burden of proof on the standard required by the law, his adversary does not bear the burden to adduce any evidence.” [51] In this case, apart from the allegation of facts that RH has admitted or received the letter from JPN, there is no other evidence that supports this application for exemption. Since there are various reasons filed and the PW has reached to her own conclusion that the marriage cannot be saved, the earlier decision or findings by the Tribunal that the marriage cannot be saved, is necessary as a pre-condition, before the filing of the petition. This Court cited the case of CHEONG KONG MENG (HUSBAND) V TAN LILY (WIFE) [2022] MLJU 2581, held: “The principle decided in the case of JOSEPH JEGANATHAN (Supra) is clear, where the court concluded that: If the circumstances show a marriage can be saved it should be saved. The petitioner says the marriage is dead and he relies on the cumulative effect of all his complaints. Although the respondent says the marriage is not dead and that all efforts at reconciliation have not been exhausted the evidence shows nothing of that sort. The marriage has irretrievably broken down; taking into account the whole of the circumstances and the characters and personalities of the 22 parties in this case any right-thinking person would come to the conclusion that the respondent has behaved in such a way that the petitioner cannot be expected to live with the respondent”. [52] This Court also made the observation that, as a result of the order in terms is granted for Enclosure 8, therefore, Enclosure 1 is no longer has legal effect to be decided by this Court. The Court is aware that there are claims against the Co-Respondent who will also be affected by this decision. The PW did not make any application for damages to be awarded against the Co-Respondent. [53] Naturally, the Court has the power under Section 59 LRA 1976 to award damages against the Co-Respondent, But, based on that provision, it can only be granted if the Enclosure 1 is rejected or postponed, but not in this situation [54] Under Section 59 LRA 1976 the Court may award damages against the Co-Respondent notwithstanding that the petition against the RH is dismissed or adjourned. In this case, Enclosure 1 was struck out as a whole and not dismissed against the Respondent, therefore, it is not caught by Section 59 LRA1976. [55] Moreover, the Court only can award damages if it was prayed by the PW. In this case, in Enclosure 8, the RH itself prayed for the whole suit of Enclosure 1 to be struck out. However, during the Hearing of Enclosure 8, 23 this was not prayed or raised by the Petitioner on the issue of Co-Respondent. The Order of the Court is struck-out and not dismissed. Conclusion [56] After reviewing the entire facts, the Court found that the action of RH by filing Enclosure 8 based on the following reasons that the Petitioner cannot confirm the Respondent's place of residence, the Respondent's claim to live with the Co-Respondent in Changlun, the Respondent's claim that the Divorce Petition is based on hearsay, the JPN letter not submitted to the Petitioner at the Residency address and the Petition for Divorce was filed without a Marriage Tribunal certificate (JPN.KC29) or there is no order for the referral of problem to a Conciliation Council or Marriage Tribunal. [57] Other issues, including preliminary objections, were also considered and this Court found that they would not change this decision. No decision on the merits was made for this Application under Order 19 rule 18 ROC

[58] This Court considered the Rules of Court 2012’s provisions regarding the validity of the court order providing for the “with the liberty to file again/re-filed.” In SUPRAMANIAM A/L GOVINDASAMY V RAVI A/L GOVINDASAMY [2023] MLJU 1844, the court held that: “In Chan Guan Seng & Anor Iwn Gale Force Sdn Bhd (malayan Banking Berhad Pihak Ketiga) [2014] MLJU 1317, the court held that: 24 “[31] Di dalam penggunaan kuasa budi bicara mahkamah ini, mahkamah ini merujuk kepada beberapa otoriti sebagai panduan. Di dalam kes Tan Eng Hoe V Liang Hooi Keng [1961] 27 MLJ 119, Mahkamah Rayuan dengan merujuk kepada penghakiman Chitty L.J di dalam kes Fox v Star Newspaper Co [1898] 1 QB 636, Hakim Ong bagi pihak Mahkamah Rayuan telah berkata berikut di muka surat 120 ： …as to discontinuance, it is again well settled that it lies entirely within the Judge’s discretion whether or not to allow a Plaintiff to discontinue with the right of bringing another action. The object of Order 26 rule 1 is that “after the proceedings hae reached a certain stage the Plaintiff, who has brought his adversary into Court, shall not be able to escape by a side door and avoid the contest... and it is for the Judge to say whether the action shall be discontinued or not and upon what terms” (per Chitty L.J. in Fox v. Star Newspaper Co.) [59] Therefore, the PW should satisfy the pre-requisite under the law before presenting any Divorce Petition in this Court, and may file again against the Respondent and Co-Respondent once satisfied or appeal accordingly. The PW can still file a new Divorce Petition. Pronouncement [60] As a result of this decision:

(i)