Tee Geng Chaan v Nguyen Thi Truc Linh (MA-33-31-06/2026)

This is a petition for the dissolution of a marriage presented by the husband alone. The wife is a foreign national who left Malaysia more than fifteen years ago and has not been heard from since. Service upon her has been dispensed with by an order of this court dated 24.06.2026, to which I return below. Nothing has been filed on her behalf. The petition therefore comes before the court in the least satisfactory posture in which a matrimonial cause can come: with only one voice speaking, and with the interests of an absent respondent and of a child of the marriage depending entirely upon the court's own scrutiny of the record.

In that situation the court's duty is not diminished but heightened. Section 53(2) of the Law Reform (Marriage and Divorce) Act 1976 ("the Act") obliges the court, so far as it reasonably can, to inquire into the facts alleged, and to be satisfied that the circumstances make it just and reasonable to dissolve the marriage. That obligation is not discharged by reading the petition and taking it at its word. An assertion in a pleading, even one verified on affidavit by the only party before the court, is not thereby converted into a finding of fact.

Having examined the cause papers with that duty in mind, I have found it necessary to begin with a question which is logically prior to every other in the case: whether this court has power to entertain the Petition at all. I address that question first, and at length, because it governs everything else. The Petition suffers, in addition, from a number of defects apparent on the face of the papers, and I address those thereafter, so that the parties are not put to the expense of returning to court twice over.

The following facts are established by documents, and not merely by assertion. I set them out separately from the Petitioner's account, because the distinction matters.

The parties were married on 11.09.2009 at the Jabatan Pendaftaran Negara, Negeri Melaka. The marriage is registered under Register of Marriages No. KC05 502436, a copy of which is exhibited as Lampiran "A" to the Petition (Enclosure 1). The Petitioner is a Malaysian citizen holding identity card No. 821017-04-5095. The Respondent is a citizen of Vietnam holding passport No. B3196911.

There is one child of the marriage, TEE CHUN LINN (No. K/P 101204-04-0163), a boy, born on 04.12.2010 at Hospital Besar Melaka and registered on 10.12.2010. The birth certificate is exhibited as Lampiran "D". It records the Respondent as the mother and her status as "bukan warganegara".

By letter dated 23.04.2026 (reference IM.101/M-H/907/5-1 JLD 83 (20)) , the Jabatan Imigresen Malaysia, Negeri Melaka, furnished a record of the Respondent's movements. That record, exhibited as Lampiran "B", establishes two matters of importance. First, the Respondent's last recorded movement was her departure from Malaysia on 15.02.2011 through Kuala Lumpur International Airport. There is no record of her return. Secondly, the pass on which she was present in Malaysia was a social visit pass (spouse of a citizen), and it expired on 10.03.2011.

On 16.04.2026, in Originating Summons (Family) No. MA-24F 15-03/2026, an order was made in chambers upon the Petitioner's ex parte originating summons dated 26.03.2026. The sealed order is exhibited as Lampiran "C". Its terms are short and I set them out in full, because the Petition misdescribes them: "MAKA ADALAH DENGAN INI DIPERINTAHKAN bahawa Pemohon dikecualikan untuk mendapat perakuan perkahwinan gagal didamaikan dari badan pendamai sebelum memfailkan Petisyen Perceraian."

The Petition was filed on 10.06.2026, together with the affidavit in support (Enclosure 2) and the statement as to the child (Enclosure 3), both of the same date. By an order dated 24.06.2026 (Enclosure 10), made in chambers by the learned Deputy Registrar upon the Petitioner's ex parte notice of application dated 22.06.2026 (Enclosure 7), the Petitioner was exempted from serving the Petition (Lampiran 1), together with the related cause papers from Lampiran 2 to Lampiran 6, upon the Respondent.

By a Supplemental Affidavit (Afidavit Tambahan) affirmed on 20.07.2026 and filed on 22.07.2026 (Enclosure 12), the Petitioner has elaborated the facts and circumstances said to have caused the marriage to break down irretrievably under sections 53 and 54 of the Act. He deposes that the Respondent left the matrimonial home without his consent, and that he never agreed that the separation should be permanent or that the marriage should end; that after her return to Vietnam he was able to reach her by telephone on several occasions during 2011; that in those calls she told him that her family did not agree to her returning to Malaysia and that her passport was being held by members of her family; that he repeatedly urged her to return so that the parties might resume married life together with the child, assuring her that he would work harder to improve the family's finances; that she nonetheless refused, stating clearly and repeatedly that she no longer wished to return to Malaysia or to continue married life with him; and that he understood from her own words that her refusal was her own decision, and not merely the consequence of her family's opposition or of the retention of her passport. Some months later her telephone number ceased to be reachable, and he was given no other number, address or means of contact. He deposes further that since 15.02.2011 the Respondent has never returned to live with him; that the parties have never resumed cohabitation; that there has been no reconciliation or resumption of the marital relationship; that they have lived apart continuously without any intervening period of reconciliation or cohabitation; and that the child of the marriage has throughout been in his custody, care and control, with the assistance of his parents in Melaka, the Petitioner having provided for the child's living, schooling and welfare to date.

Beyond those documents, the court has only the Petitioner's own narrative: that the parties quarrelled in February 2011; that the Respondent left the matrimonial home and returned to Vietnam; that she told him from Vietnam that she did not intend to return to him; and that he has been unable to contact her since. That narrative is uncorroborated. It is not, however, implausible, and in material respects it is consistent with the immigration record. I treat it as evidence to be weighed, not as fact to be assumed. The Supplemental Affidavit enlarges that narrative in the respects set out at paragraph [10] above. It too, however, is the evidence of the Petitioner alone; it is uncorroborated, and I approach it with the same caution.

The dispositive issue in this case is not breakdown. It is jurisdiction. If the court lacks power to entertain the Petition, the merits are academic. Jurisdiction cannot be conferred by consent, by silence, or by the default of an absent party, and it cannot be assumed merely because no one has appeared to dispute it. It must be established affirmatively, and the court is bound to satisfy itself of it whether or not the point is taken.

Section 48(1) provides: "48. (1) Nothing in this Act shall authorize the court to make any decree of divorce except—(a) where the marriage has been registered or deemed to be registered under this Act; or (b) where the marriage between the parties was contracted under a law providing that, or in contemplation of which, marriage is monogamous; and (c) where the domicile of the parties to the marriage at the time when the petition is presented is in Malaysia."

The structure is cumulative: the petitioner must bring himself within paragraph (a) or paragraph (b), and in either event must satisfy paragraph (c). Paragraph (a) is plainly satisfied; the marriage was registered under the Act on 11.09.2009. Everything turns on paragraph (c).

Before construing paragraph (c) it is necessary to notice the form in which section 48(1) is cast. It is not a grant of jurisdiction. It is a prohibition: "Nothing in this Act shall authorize the court to make any decree of divorce except". Parliament has chosen to define the court's power negatively, by excluding it save in stated cases. A provision so expressed is to be read as a fetter, and where the meaning is doubtful the doubt falls to be resolved against the existence of the power rather than in favour of it. A court which extends its own jurisdiction by a generous construction of the words which limit it does not enlarge justice; it enlarges itself.

Paragraph 2 of the Petition pleads that the Respondent is "warganegara Vietnam dan berdomisil di Malaysia". That is not a fact. It is a conclusion of law, unsupported by any evidence, and it is contradicted by the Petitioner's own pleaded case.

Domicile is neither residence nor immigration status. A domicile of choice is acquired only by residence in a territory coupled with an intention to remain there indefinitely, and it is lost when that intention is abandoned, whereupon the domicile of origin revives. The Respondent's presence in Malaysia rested upon a social visit pass. She departed on 15.02.2011. Her pass expired on 10.03.2011. On the Petitioner's own account she announced, upon reaching Vietnam, that she would not return to him. She has not set foot in Malaysia for more than fifteen years. Whatever domicile of choice she might once have been said to acquire, the intention which alone could sustain it was abandoned in February 2011, and her domicile of origin in Vietnam thereupon revived. The Supplemental Affidavit puts the matter beyond argument. On the Petitioner's own account of the telephone calls of 2011, the Respondent stated clearly and repeatedly that she no longer wished to return to Malaysia or to continue the marriage, and the Petitioner himself understood that her refusal was not merely the product of her family's opposition or of the retention of her passport, but her own decision. An absence maintained by the Respondent's own settled decision is inconsistent with any continuing intention to reside in Malaysia indefinitely.

I find, therefore, that the Respondent was not domiciled in Malaysia when this Petition was presented on 10.06.2026. She was domiciled in Vietnam.

That finding is fatal unless paragraph (c) can be read as requiring the domicile of one party only. The argument for so reading it is not frivolous, and I have considered it with care. It runs as follows: sections 48(2)(c) and 67(c) each require that "both the parties" reside in Malaysia, whereas paragraph (c) speaks only of "the domicile of the parties"; the omission of "both" must be deliberate; and section 49, which relieves a wife of paragraph (c) where the husband is not domiciled here, presupposes that the husband's domicile is what paragraph (c) is really about. I reject the argument, for the reasons which follow.

First, the words will not bear it. "The domicile of the parties to the marriage ... is in Malaysia" is, on its face, a statement about both of the persons described. The word "both" in sections 48(2)(c) and 67(c) is emphatic rather than constitutive; it makes explicit what "the parties" already conveys, and its presence there does not licence the court to read "the parties" in paragraph (c) as meaning "one of the parties". To construe a jurisdictional limitation as satisfied by the connection of one spouse alone would permit this court to dissolve the marriage of a person having no subsisting connection with Malaysia whatever. That is a large consequence to derive from the absence of a single emphatic word.

Secondly and this is the heart of the matter the one-party construction is not truly a construction of paragraph (c) at all. It is an application of the doctrine of the wife's dependent domicile. Two persons can have one domicile only if the law attributes the domicile of one to the other; and the only rule which ever did so is the rule that a married woman's domicile is that of her husband and that she is incapable of acquiring an independent domicile during coverture. The Petitioner's case therefore stands or falls upon whether that doctrine is part of the law of Malaysia. In my judgment it is not.

The doctrine is a rule of common law. It was not enacted by Act 164. It attaches a legal disability to a person by reason only of her sex: it denies to a wife, and to no one else, the capacity which every other adult possesses to determine where she belongs. Article 8(1) of the Federal Constitution provides that all persons are equal before the law and entitled to the equal protection of the law. That guarantee extends to all persons, and not merely to citizens; and a rule which disables a woman, upon marriage, from having a domicile of her own is not easily reconciled with it. Article 8(2), which forbids discrimination against citizens on the ground of gender in any law, reinforces the point in respect of Malaysian wives, though it does not in terms protect the Respondent, who is not a citizen. I do not think a common law rule of this character survives the Constitution.

Section 47 points the same way. It directs this court to act and give relief "on principles which in the opinion of the court are, as nearly as may be, conformable to the principles on which the High Court of Justice in England acts and gives relief in matrimonial proceedings". The dependent domicile of the married woman has been abolished in England. Section 47 is, of course, "[s]ubject to the provisions contained in this Part", and it cannot be used to unsay what section 48 says. But section 48 does not define domicile. It presupposes the concept and leaves its content to the general law. Section 47 bears directly upon what that content is, and it does not support the revival of a doctrine which England itself has discarded.

Section 49 is the strongest point against this conclusion and I do not shrink from it. That section confers jurisdiction over proceedings "by a wife", notwithstanding paragraph 48(1)(c), where the husband is not domiciled or resident in Malaysia, in two defined situations. It is difficult to read it otherwise than as a provision framed against the background of a dependent domicile: Parliament was relieving wives of a disability which the doctrine imposed upon them. But a provision enacted to relieve the victims of a doctrine is not the same thing as a provision enacting the doctrine. Section 49 presupposes; it does not create. And a presupposition embedded in a jurisdiction-conferring provision for the protection of wives cannot properly be converted, by construction, into a substantive rule of general law operating to the detriment of an absent foreign woman, so as to deem her domiciled in a country she left in 2011 for the purpose of dissolving her marriage and removing her son from her.

I add that the Petitioner cannot in any event bring himself within section 49. That section is available to a wife. He is a husband. He cannot claim its benefit directly, and he ought not to be permitted to obtain it indirectly by using it as an interpretive lever upon paragraph (c).

" [T]he domicile of the parties to the marriage" in section 48(1)(c) means the domicile of each of them. The Respondent was domiciled in Vietnam on 10.06.2026. Paragraph (c) is not satisfied. This court's jurisdiction to make a decree of divorce is not established.

Two provisions which might be thought to assist do not. Section 3(2) deems a Malaysian citizen to be domiciled in Malaysia until the contrary is proved; the Petitioner is a citizen and has the benefit of it, but the Respondent is not, and the presumption says nothing whatever about her. Section 63, which permits a decree nisi of presumption of death and divorce where a spouse has been continually absent for seven years, is likewise no escape: it produces a decree of divorce, and section 48(1) restricts the making of "any decree of divorce"; and in any event the Petitioner does not allege that he has no reason to believe the Respondent living, but on the contrary that she is in Vietnam. THE CONSEQUENCE, AND WHERE THE REMEDY LIES

I am not blind to the harshness of this result. A Malaysian citizen, married in Melaka under Malaysian law before a Malaysian Registrar, abandoned fifteen years ago, left to raise their infant son alone, is told that the courts of his own country cannot end his marriage because the woman who abandoned him is domiciled elsewhere. That is an unattractive outcome and I do not pretend otherwise. But the remedy for it is not judicial. Parliament expressed the limit in prohibitory terms, and Parliament has revisited this Act as recently as the Law Reform (Marriage and Divorce) (Amendment) Act 2017 (Act A1546) amending sections 3,12,51,76 and 95, and inserting section 51a without touching section 48. It is not for this court to confer upon itself a jurisdiction which the legislature has withheld, however sympathetic the applicant.

Nor is the Petitioner necessarily without recourse. The courts of the Respondent's domicile are open to him, and section 107(3) of the Act provides that where a marriage solemnized in Malaysia is dissolved by a decree of a court of competent jurisdiction outside Malaysia, either party may apply to the Registrar General for registration of that decree, which shall be registered on the Registrar General being satisfied that it ought to be recognised as valid for the purposes of Malaysian law. That is a course which may be open to him and which he may wish to consider. That course was recently mapped in Choong Kek Foh (Declaratory Petition No. MA-33-21-04/2026, High Court of Malaya at Melaka, 10.07.2026): the Petitioner should, upon obtaining a final decree from the courts of the Respondent's domicile, apply to this Court for a declaration that the decree is recognised as valid for the purposes of the law of Malaysia, and thereafter present that declaration to the Registrar General for registration under section 107(3).

Domicile is, in the end, a question of fact. The Petitioner has never been put on notice that this point would be taken, and he has adduced no evidence directed to it; his pleading simply asserts the conclusion. The Supplemental Affidavit does not repair the omission: it is directed entirely to the breakdown of the marriage, and it says nothing of domicile. It would not be just to dismiss his Petition upon a point of which he had no warning and on which he has never been invited to lead evidence. I therefore hold that jurisdiction is not established upon the material presently before the court, and I give him the opportunity to make it good. If he cannot, the Petition must be dismissed for want of jurisdiction, and the directions below so provide.

Ordinarily a court which holds itself without jurisdiction says no more. I depart from that course, deliberately and for a limited reason. The Petition may yet proceed, if the evidential burden identified above is discharged. Should that happen, it will immediately encounter a series of further defects which are apparent on the face of the papers now, and which would otherwise require a further hearing and a further set of grounds. It is in the interests of the Petitioner, of his son, and of the orderly despatch of the court's business that they be identified at once. Nothing which follows is necessary to my decision, which rests upon the question of jurisdiction determined at paragraphs [25] to [29] above. What follows is said by way of observation only, and binds no one. SERVICE, THE ORDERS OF 16.04.2026 AND 24.06.2026

I turn to the question of service, which, as matters stood at the presentation of the Petition, would, standing alone, have prevented the pronouncement of any decree in this case. The position has since altered, and it must be stated accurately.

Paragraph 8 of the Petition avers that on 16.04.2026 the Petitioner obtained an order exempting him "daripada mendapat perakuan perkahwinan gagal didamaikan dari Jabatan Pendaftaran Negara dan juga mengecualikan penyampaian dan penyerahan Petisyen Perceraian dan lain-lain kertas kausa berkaitan kepada Responden Isteri".

That averment is inaccurate in two respects, and the second is serious.

The order does not refer to the Jabatan Pendaftaran Negara. It exempts the Petitioner from obtaining a certificate from a "badan pendamai" a conciliatory body. The two are not the same. A conciliatory body is defined by section 106(3) and is not the National Registration Department.

The order of 16.04.2026 says nothing whatever about service. It contains no dispensation of service, no order for substituted service, and no reference to the Respondent at all. The Petition asserts a dispensation which had not, at the date of its presentation, been granted. [35] The position at the date of presentation of the Petition was therefore this: service had not been dispensed with, and no order for substituted service had been sought or made. That deficiency has since been made good. By the order dated 24.06.2026 (Enclosure 10), made upon the Petitioner's ex parte notice of application dated 22.06.2026, the Petitioner has been exempted from serving the Petition, together with the cause papers from Lampiran 2 to Lampiran 6, upon the Respondent. Service has accordingly now been dispensed with by an order of this court, and the impediment which the want of any such order would otherwise have presented to the pronouncement of any decree no longer subsists. [36] I say at once that I do not suppose the misdescription in paragraph 8 to be dishonest. It has the character of a drafting error carried across from an earlier draft or a differently-framed application. But a decree pronounced against a party who has never been served, in the absence of any order dispensing with or substituting for service, is a decree exposed to being set aside; and a court which acts upon an inaccurate account of its own order does not administer justice, it merely processes paper. The audi alteram partem rule is not a formality to be discharged by assertion. Where a respondent cannot be found, the law provides a remedy an application for substituted service, or for dispensation, made on evidence of the efforts to trace her. The second of those remedies has now been invoked and granted: the ex parte notice of application of 22.06.2026 sought, and the order of 24.06.2026 conferred, a dispensation of service. That order was made by the learned Deputy Registrar in chambers and stands unless and until it is set aside. It regularises the position of service from its date; it does not, and cannot, cure the misdescription in paragraph 8 of the Petition of the order of 16.04.2026. [37] Paragraph 8 of the Petition must be amended to state accurately what the order of 16.04.2026 does: it dispenses with the certificate of the conciliatory body, and nothing else. The dispensation of service rests upon the order of 24.06.2026 alone, and the amended pleading should say so. In the light of that order, no further application in respect of service is required before this Petition can be heard on its merits. SECTION 106 AND THE STATUTORY PROVISOS [38] A related observation may assist practitioners. [39] Section 106(1) prohibits the presentation of a petition for divorce unless the matrimonial difficulty has first been referred to a conciliatory body which has certified that it has failed to reconcile the parties. But the proviso to section 106(1) disapplies that requirement in six situations. Limb (i) applies "where the petitioner alleges that he or she has been deserted by and does not know the whereabouts of his or her spouse". Limb (ii) applies "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". [40] On the Petitioner's own case, both limbs are engaged. He alleges desertion; he does not know her whereabouts; she resides abroad and has done so for fifteen years. Limbs (i) to (v) are self-executing. They require no order of court. They operate upon the pleading of the facts which engage them. It is only limb (vi] — "where the court is satisfied that there are exceptional circumstances which make reference to a conciliatory body impracticable" — that calls for an exercise of judicial satisfaction, and it is limb (vi) alone which was invoked in MA-24F-15-03/2026. [41] The ex parte originating summons was, in my respectful view, unnecessary. Where the facts plainly engage limbs (i) or (ii), the proper course is simply to plead them and to state, as section 57(2) in any event requires, what steps have been taken to effect a reconciliation. Recourse to limb (vi) in such a case adds an application, a fee and a delay, and secures nothing which the statute has not already given. That said, the order having been obtained, no prejudice arises from it, and the section 106 precondition is in any event satisfied. [42] I add that section 57(2] — "Every petition for a divorce shall state what steps had been taken to effect a reconciliation" — is a distinct and mandatory requirement, and it is not answered by pleading that an exemption was obtained. The Petition presently contains no statement complying with section 57(2). It should. BREAKDOWN OF THE MARRIAGE: SECTIONS 53 AND 54 [43] Section 53(1) makes irretrievable breakdown the sole ground for divorce. Section 54(1) requires the court, in its inquiry into the facts and circumstances alleged as causing or leading to that breakdown, to have regard to one or more of four specified facts. The distinction between the ground and the facts is not a technicality; it is the whole scheme of the Part. Breakdown is the conclusion. The section 54(1) facts are the evidence from which the conclusion may be drawn. A petition which asserts the conclusion in place of the evidence has pleaded nothing at all. WHAT IS PLEADED [44] The Petition is intituled under section 54(1)(b) and (c). Paragraph 7 pleads three matters as the facts said to establish breakdown.

Paragraph 7(a): that the Respondent showed no affection and did not perform her duties as a wife; that the parties were always in an unfriendly atmosphere; that the Petitioner tried to resolve the family's difficulties and the Respondent would not cooperate. This is behaviour under section 54(1)(b).

Paragraph 7(b): that after the quarrel of February 2011 the Respondent decided to leave the matrimonial home, returned to Vietnam and ceased all contact. This is desertion under section 54(1)(c).

Paragraph 7(c): that the marriage has reached a dead end ("telah menemui jalan buntu"). [45] Paragraph 7(c) is not a fact within section 54(1) at all. It is section 53(1) restated. The same difficulty infects the affidavit in support: in answer to Question 5, which asks the deponent to state briefly the main cause of the separation, the Petitioner answers "Perkahwinan berpecah belah dengan tidak dapat dipulihkan". That is not a cause. It is the conclusion which the cause is meant to support, offered in place of the cause. It is circular, and it assists the court not at all. The Supplemental Affidavit now supplies much of the narrative of cause which the answer to Question 5 withholds the quarrel of February 2011, the departure, the telephone calls and their content and the deficiency is, to that extent, one of form rather than of substance; but the prescribed affidavit should nonetheless be put right. THE BEHAVIOUR ALLEGATION [46] Paragraph 7(a) is pleaded at a level of generality which comes close to pleading nothing. No incident is identified. No date is given. No conduct is described. It amounts to an allegation that the Respondent was an unsatisfactory wife, unparticularised and, necessarily, untested. [47] Section 54(1)(b) requires that the respondent "has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent". The test looks to the effect of the conduct on this petitioner. It is not easy to see how the court could be satisfied of that in respect of conduct never particularised, alleged against a party who has not been heard, and said to have occurred before a cohabitation which ended in February 2011 and has never resumed. Fifteen years of separation do not improve an unparticularised allegation; they merely place it beyond the reach of any inquiry. I would not grant a decree on paragraph 7(a) as it stands. THE DESERTION ALLEGATION [48] Paragraph 7(b) is on far stronger ground, and section 54(1)(c) requires only that the desertion have continued for at least two years immediately preceding presentation. Desertion requires the factum of separation, the animus deserendi, the absence of the petitioner's consent and the absence of just cause. The animus at inception is well enough evidenced: on the Petitioner's account she told him she would not return. The Supplemental Affidavit strengthens that account in three respects. First, the Petitioner deposes that the Respondent left the matrimonial home without his consent, and that he never agreed that the separation should be permanent. Secondly, he deposes that in the telephone calls of 2011 the Respondent at first attributed her absence to her family's opposition and to the retention of her passport by members of her family, but thereafter stated clearly and repeatedly that she would not return and would not continue the marriage, and that he understood from her own words that this was her own decision rather than the product of those constraints. Thirdly, he deposes that he repeatedly urged her to return so that married life might resume with him and the child, with assurances that he would work harder to improve the family's finances, and that she refused. [49] But there is a question here which counsel has not addressed and which the court cannot ignore. The immigration record shows that the Respondent's social visit pass expired on

03.2011 — some three weeks after her departure. From that date she had no subsisting right to enter Malaysia. The question which arises is whether a separation which is thereafter sustained by legal incapacity rather than by continuing intention remains desertion in law, or whether the animus deserendi is displaced once the deserting spouse could not return even if she wished to. The point is not without difficulty. It is sharpened by the further consideration that the Petitioner himself relocated to Singapore and took no step of any kind for fifteen years, which raises the distinct question whether what began as desertion became, in time, a separation to which both parties consented consent being destructive of desertion. The Supplemental Affidavit goes some distance towards answering the first of these questions: if the Respondent's own repeated statements in 2011 are accepted, her continued absence was sustained by her own decision and not by legal incapacity alone. But that evidence is the untested recollection of the Petitioner as to telephone conversations fifteen years past; and the second question is met only by his bare denial of consent. Both points remain unresolved on this material. [50] I express no concluded view. I do not need to, because the record establishes a different fact under section 54(1) which is beyond all argument, and which the Petitioner has not pleaded. THE FACT WHICH IS ESTABLISHED AND WHICH IS NOT PLEADED [51] Section 54(1)(d) provides for the fact "that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition". [52] The parties have lived apart continuously since February 2011. The Petition was presented on 10.06.2026. That is a continuous separation of more than fifteen years. It is proved not by the Petitioner's assertion but by the record of the Jabatan Imigresen Malaysia, which shows the Respondent's departure on 15.02.2011 and no return. It is corroborated by the fact, which the Petition does not trouble to draw out, that she left when the child of the marriage was approximately two months old and has had no contact with him since. The Supplemental Affidavit now deposes to the same effect in terms: that since 15.02.2011 the Respondent has never returned to live with the Petitioner; that cohabitation has never resumed; that there has been no reconciliation or resumption of the marital relationship; and that the parties have lived apart continuously, without any intervening period of reconciliation or cohabitation. [53] Section 54(1)(d) requires no inquiry into animus, no inquiry into consent, and no allegation of fault against a woman who cannot answer it. It requires proof of a state of affairs, and that state of affairs is documented. It is, by a considerable margin, the most secure foundation available on this record, and it is the only one which does not require the court to make findings of misconduct against an absent party on untested evidence. [54] Section 54(1)(d) is not pleaded. Section 57(1)(d) requires every petition to contain "a statement of the principal allegations which it will be sought to prove as evidence of the breakdown of the marriage", and section 53(2) confines the court's inquiry to "the facts alleged". I do not think it right, in a cause in which service upon the Respondent has been dispensed with, to grant relief upon a statutory fact which has never been pleaded and of which she has therefore had no notice. The remedy is straightforward: the Petition should be amended to plead section 54(1)(d). The Supplemental Affidavit now invokes section 54(1)(d) in terms. That does not cure the difficulty, for an affidavit is not a pleading; but it supplies the evidential foundation upon which the amended plea will rest, and the amendment directed below, though still necessary, will be a formality. SECTION 54(2) [55] Section 54(2) requires the court, in considering whether it would be just and reasonable to make a decree, to consider all the circumstances, including the conduct of the parties and how the interests of any child of the marriage may be affected. Were jurisdiction established, and were the Petition amended service upon the Respondent having now been dispensed with by the order of 24.06.2026, I should anticipate no difficulty in being so satisfied. A marriage in which the parties have not lived together for fifteen years, in which one party has vanished, and in which the child has been raised throughout by the other, has no life in it that the law can preserve. THE CHILD OF THE MARRIAGE [56] The child is the reason for much of what follows, and he has been the least carefully attended to in the papers. AN ERROR OF FACT [57] The Petition (paragraph 9 and the table thereunder, and paragraph 11(d)) and the Penyata Mengenai Anak (paragraph 1 and the table thereunder, and paragraph 3(d)) each state that TEE CHUN LINN is "16 tahun". [58] He is not. He was born on 04.12.2010. At the date of the Petition, 10.06.2026, he was fifteen and a half years old. He attains the age of sixteen only on 04.12.2026. [59] This is not a pedantic correction. Paragraph 11(d) of the Petition and paragraph 3(d) of the Penyata each erect an argument upon the child's age: that he "telah berumur 16 tahun dan mampu menjaga kehidupan harian sendiri dan memang memilih untuk hidup bersama Pempetisyen Suami". A material submission in support of a prayer for sole custody is founded upon an age which is wrong on the face of the exhibited birth certificate. The court cannot act upon it. Papers filed in support of an order affecting a child's upbringing must be accurate, and it is no answer that the error is a small one; if the age of the only child in the case can be misstated in two separate documents, the court is entitled to ask what else has not been checked. THE CHILD'S WISHES [60] Section 88(2) provides that the paramount consideration is the welfare of the child, and that subject to that the court shall have regard to the wishes of the parents and "to the wishes of the child, where he or she is of an age to express an independent opinion". A boy of fifteen and a half plainly is of such an age. [61] Yet the only evidence of his wishes before the court is his father's assertion, in his father's affidavit, in support of his father's application, that the boy "memang memilih" to live with him. That is not evidence of the child's wishes. It is evidence of the father's account of them, and the two are not the same thing. The child has a voice in this matter and the court has heard nothing of it. SECTION 100: WHETHER A WELFARE REPORT IS NECESSARY [62] Section 100 provides that when considering any question relating to the custody or maintenance of any child, the court "shall, whenever it is practicable, take the advice of some person, whether or not a public officer, who is trained or experienced in child welfare but shall not be bound to follow such advice". The obligation is mandatory, qualified only by practicability, and the concluding words preserve the court's independent judgment. [63] It would be easy to direct a full welfare report and move on. On reflection I do not think that is the right course, and I set out my reasons because the question arises frequently in this Court and is too often answered by reflex.

It would at present be premature. The court's jurisdiction is not established. The prayers as to custody are prayers in this Petition and fall with it. To set in motion an official inquiry into the home life of a fifteen-and-a-half-year-old boy, in a cause which may be dismissed within the month, would be to trouble him for nothing.

There is no contest. The mother is absent and advances no claim. There is no competing applicant. The order sought would not disturb the child's life; it would regularise an arrangement which has subsisted since he was an infant. Section 100 exists to assist the court to resolve a question about a child's welfare. Where there is no question, an investigation is intrusion without purpose, and the child is fifteen and a half and entitled not to have his household made the subject of an official file merely because a form requires it.

Section 100 does not prescribe a form. It requires the court to "take the advice" of a person trained or experienced in child welfare. It does not require a full welfare investigation, and the section is satisfied by advice proportionate to the question which the court actually has to decide. [64] That said, section 100 is not to be dispensed with, and there is one matter on this record which does require illumination: the Petitioner works in Singapore, while the child is said to be cared for with the assistance of the paternal grandparents in Melaka. Who in fact looks after this boy from day to day is a question the court must be able to answer before it places him in anyone's custody. [65] The proportionate course, if and only if jurisdiction is established, is therefore this. The Petitioner shall file an affidavit deposing to his actual place of residence, the frequency and duration of his presence in Malaysia, and the identity of the persons who care for the child from day to day. The court will see the child in chambers, pursuant to section 88(2), so that his wishes may be ascertained from him rather than from his father. A report under section 100 will then be directed, confined to whatever question those materials leave open, and no wider. If they leave none, the advice which section 100 contemplates may be taken in short form. I decline to order a general welfare report at this stage. CUSTODY, CARE AND CONTROL [66] There is a further matter which the papers do not confront. Paragraph 6 of the Petition states that the Petitioner "sekarang berkerja di Singapura". Paragraph 11(a), and paragraph 3(a) of the Penyata, state that he is able to care for and educate the child "dengan bantuan ibubapa Pempetisyen Suami di Melaka". [67] Read together, the position appears to be that the child is in the day-to-day care of his paternal grandparents in Melaka while his father works in another country. That may well be a wholly satisfactory arrangement, and it may well be that it should continue. But it is not the same arrangement as that described in the prayer, which seeks sole custody, care and control to the father simpliciter, and the court should not make an order which describes the child's life inaccurately. The Supplemental Affidavit repeats that the child has at all times been in the Petitioner's custody, care and control with the assistance of his parents in Melaka, and that the Petitioner has provided for the child's living, schooling and welfare to date. It does not state where the Petitioner himself resides from day to day, and the question identified above therefore remains. [68] Section 89 gives the court ample power to fit the order to the facts. An order for custody may be made subject to conditions (subsection (1)); it may contain conditions as to the place where the child is to reside and as to the manner of his education (subsection (2)(a)); it may provide for the child to be temporarily in the care and control of a person other than the person given custody (subsection (2)(b)); and it may prohibit the person given custody from taking the child out of Malaysia (subsection (2)(e)). These powers exist precisely for arrangements of this kind, and they should be considered if the matter returns. MAINTENANCE OF THE CHILD [69] The Petitioner offers, at paragraph 14 of the Petition and paragraph 6 of the Penyata, to bear the child's schooling and living expenses "sehingga anak perkahwinan mencapai umur lapan belas tahun atau menghabiskan pendidikan tinggi, yang mana yang terkemudian". That formulation is properly aligned with section 95 as amended by section 7 of the Law Reform (Marriage and Divorce) (Amendment) Act 2017 (Act A1546), which extended the duration of orders for custody and maintenance where the child "is pursuing further or higher education or training" until the completion of such education or training. The undertaking is appropriate and I record it with approval. RELIEF WHICH THE COURT HAS NO POWER TO GRANT AS SOUGHT [70] Three of the prayers in paragraph 19 of the Petition are misconceived, and it is better that this be said now than after a decree has been pronounced upon them. PRAYER 19(E): THAT NO MAINTENANCE BE ORDERED FOR THE RESPONDENT [71] Section 77 empowers the court to order a man to pay maintenance to his wife or former wife. It confers no power to make a negative or declaratory order that no maintenance shall ever be payable. The court may decline to make an order; it cannot extinguish a statutory right to apply. Section 83 in any event preserves the power to vary or rescind a maintenance order at any time upon material change of circumstances, which confirms that the Act does not contemplate the final foreclosure of the question. [72] The proposition is a fortiori where the party whose rights are to be foreclosed has not appeared and has not been heard. The correct disposal, if the court is not persuaded to order maintenance, is to make no order as to maintenance for the Respondent, leaving the position as the statute leaves it. [73] I add this. Paragraph 16 of the Petition invites the court to refuse maintenance because it was the Respondent "yang telah menyebabkan keretakan perkahwinan". Section 78 does direct the court, in assessing maintenance, to have regard to the degree of responsibility which it apportions to each party for the breakdown of the marriage. But that direction is engaged in the assessment of an award, and it presupposes a finding of responsibility properly arrived at. Responsibility here rests upon the untested narrative of the only party present. A court asked to visit the consequences of fault upon an absent woman, on the word of the man who seeks to be relieved of paying her, should require rather more than that. PRAYER 19(F): THAT NEITHER PARTY HAS ANY OTHER CLAIM AGAINST THE OTHER [74] This prayer seeks, in substance, a declaration extinguishing the Respondent's substantive rights, including any rights she may have under section 76 in respect of matrimonial assets. The court will not make such a declaration against a party who has not appeared and has had no opportunity to be heard. It may be that there are no matrimonial assets paragraph 15 of the Petition so asserts but an assertion by one spouse that there is nothing to divide is not a foundation for an order barring the other from ever saying otherwise. PRAYER 19(A): THAT THE DECREE NISI BE MADE ABSOLUTE FORTHWITH [75] Section 61(1) provides that every decree of divorce shall in the first instance be a decree nisi and shall not be made absolute before the expiration of three months from its grant, "unless the court by general or special order from time to time fixes a shorter period". [76] The power to abridge therefore exists. But it is a judicial power, to be exercised for reasons, upon grounds pleaded and established. No such grounds are pleaded here. The prayer simply asks that the decree be made absolute "serta merta", as though the interval were an inconvenience rather than a safeguard. [77] It is not an inconvenience. The interval between nisi and absolute exists so that a decree obtained irregularly, or upon a mistaken or incomplete presentation of the facts, may be rescinded before it becomes irreversible and before the parties, or one of them, remarry upon the faith of it. Its value is at its highest, not its lowest, in a case such as this: an undefended petition, a respondent upon whom service has been dispensed with, a foreign national who does not know that these proceedings exist. To abridge the period to nothing in such a case and to do so in a petition which misstates the effect of an order of this court would be to dispense with the safeguard precisely where it is most needed. I would not abridge the period. CONCLUSION AND DIRECTIONS [78] The marriage between these parties is, as a matter of fact, long over. Nothing in these grounds should be read as suggesting otherwise. The difficulty is not that the Petitioner's case is unsympathetic. It is that this court has not been shown that it has the power to hear it. [79] I hold that the jurisdiction of this court under section 48(1)(c) of the Act is not established upon the material presently before it, the Respondent not having been shown to be domiciled in Malaysia on 10.06.2026. That is the ground, and the only ground, upon which I decide this matter. Everything I have said beyond it is by way of observation, and is said in order that, if jurisdiction is established, the Petition may proceed without further false starts. [80] I make the following directions:

The Petitioner shall, within thirty days from the date hereof, file and serve affidavit evidence directed to the domicile of the Respondent in Malaysia as at 10.06.2026. In default, the Petition shall stand dismissed for want of jurisdiction, with no order as to costs.

If jurisdiction is established, the Petitioner shall have leave to amend the Petition so as to: (i) plead the fact specified in section 54(1)(d) of the Act; (ii) state accurately the terms and effect of the order of this court dated 16.04.2026 in MA-24F-15-03/2026 and of the order of this court dated 24.06.2026 (Enclosure 10) dispensing with service; (iii) correct the age and date of birth of the child of the marriage in accordance with the birth certificate exhibited as Lampiran "D"; (iv) include the statement required by section 57(2) of the Act; and (v) recast prayers 19(a), (e) and (f) in terms which the court has power to grant.

Service of the Petition and the cause papers upon the Respondent having been dispensed with by the order of this court dated 24.06.2026 (Enclosure 10), no further order or application in respect of service is required, and the Petition may proceed to hearing without more on that account.

The affidavit in support of the Petition shall be re-sworn so as to answer Question 5 with a statement of the cause of the separation rather than a restatement of the conclusion of breakdown.

The Petitioner shall file an affidavit deposing to his place of residence, the frequency and duration of his presence in Malaysia, and the identity of the persons who care for the child of the marriage from day to day. The court will thereafter see the child in chambers pursuant to section 88(2) of the Act. Advice under section 100 will be taken in such form and upon such questions as then appear necessary. No general welfare report is ordered.

Liberty to apply. [81] If the Petitioner is unable to establish the domicile of the Respondent in Malaysia, his remedy lies in the courts of her domicile, and thereafter, if a decree is obtained there, in an application to the Registrar General under section 107(3) of the Act. Beyond that, his remedy lies with Parliament, and not with me. Dated 24 July 2026 (YA Dato' Sri Raja Segaran A/L S. Krishnan) (Judicial Commisioner) High Court Of Malaya Malacca High Court (MELAKA) Lawyer For Petitioner : Encik Vinson Tay Tetuan SC Tay & Associates Peguambela dan Peguamcara No. 12-1, Jalan KPKS 1, Kompleks Perniagaan Kota Syahbandar, 75200 Melaka.