Tham Kok Kin v Teh Ling Ling (AA-33-338-12/2020)

This divorce petition was filed by the Petitioner Husband, Tham Kok Kin (“the Petitioner”) against the Respondent Wife, Teh Ling Ling (“the Respondent”).

The Petitioner Husband and the Respondent Wife was lawfully married on 6.3.2008. The last known residential address where both Petitioner and Respondent resided together was at No. 900, Jalan Menglembu Utara 3, Kampung Baru Menglembu, 31450 Menglembu, Perak.

They were blessed with a son, Tham Chee Yan, born on 11.8.2011.

The Respondent had left their matrimonial home since 2015 and resided separately at No. 8, Lorong Kasawari 8, Taman Kasawari, 14100 Sungai Ampat, Pulau Pinang.

The Petitioner and the Respondent have lived apart for more than 2 years.

The Petitioner had sough marital reconciliation through marriage counselling session but had failed to resolve their marital issues.

Issues which arise for the determination by this court are as follows:-

Whether the property known as No. 19 Lorong Belibis, Taman Tangling Indah, 14100 Simpang Ampat, Pulau Pinang (“Taman Tangling House”) was a matrimonial property;

(ii) Whether the Respondent and the Child is entitled to the property known as No. 18, Jalan Rishah Indah 8, Desa Rishah Indah, 30100 Ipoh, Perak (“Desa Rishah Indah”);

(iii) Maintenance for the Respondent;

(iv) Maintenance for the Child, Tham Chee Yan;

Whether the Petitioner was still employed. [8] Before addressing the substantive issues articulated by the parties involved, it is incumbent upon me to first adjudicate the preliminary matter raised by the Respondent concerning the issue of pleadings. PRELIMINARY ISSUE ISSUE OF PLEADINGS [9] It was the Respondent’s contention that the Petitioner’s assertion of his entitlement to a ½ share in Taman Tangling Indah House was an afterthought as he had failed to plead the same in the Divorce Petition. [10] Fundamentally, it is a well-entrenched legal tenet that the court should refrain from adjudicating on matters not raised in the pleadings by the parties. The rules of pleadings, as expounded by the Federal Court in RHB Bank Bhd (substituting Kwong Yik Bank Bhd) v. Kwan Chew Holdings Sdn Bhd [2010] 1 CLJ 665; [2012] 2 MLJ 188, underscores this principle as follows:- “... we would like to add that it is not the duty of the Court to invent or create a cause of action or a defence under the guise of doing justice for the parties lest it be accused of being biased towards one against the other. The parties should know best as to what they want and it is not for the Court to pursue cavalier approach to solving their disputes by inventing or creating cause or causes of action which were not pleaded in the first place. Such activism by the Court must be discouraged otherwise the Court would be accused of making laws rather than applying them to a given set of facts.” [11] The function of pleadings serves to afford both parties a clear understanding of the allegations brought against them, thus preventing any unforeseen surprises during trial as explained by the Federal Court in the case of Tenaga Nasional Bhd v. Ichi-ban Plastic (M) Sdn Bhd & Other Appeals [2018] 3 CLJ 557; 1 LNS 141 as follows:- “...Parties are required to set out the factual basis of their respective cases in the pleadings. The most important purpose of pleadings is to plead reasonable cause of action, define the issues of fact and questions of law to be determined by the court (see Saiman Umar v. Lembaga Pertubuhan Peladang [2015] 9 CLJ 153; [2015] 6 MLJ 492). Pleadings enable both parties to know in advance the averments being made against them so that they will not be taken by surprise during the trial...” [12] Considering the aforementioned legal principles and after careful examination of the court documents presented before me, I ascertain that the Petitioner's assertion of entitlement to a ½ share in the Taman Tangling Indah House was delineated in the Petitioner’s Balasan Kepada Jawapan Kepada Petisyen Penceraian dan Jawapan Kepada Petisyen Balas dated 19.2.2021 as agreed by the Respondent in her submission before this court. [13] In the circumstances, it is in my considered view that the Respondent had not been misled and/or taken by surprise by the Petitioner’s claim. Hence, there had been no prejudice occasioned to the Respondent in the present case. WHETHER TAMAN TANGLING INDAH HOUSE WAS A MATRIMONIAL PROPERTY [14] The issue which arise for my consideration pertained to whether the total sum of RM100,000.00 transferred by the Petitioner into the Respondent’s Maybank Account No. 4572233149496 was intended for the acquisition of the property known as No. 19 Lorong Belibis, Taman Tangling Indah, 14100 Simpang Ampat, Pulau Pinang (“Taman Tangling House”). [15] It was not disputed between parties that a total sum of RM100,000.00 had been transferred from the Petitioner’s EPF account into the Maybank Islamic Berhad Account No. 457223314946 on 22.3.2016. [16] The Petitioner asserted that the aforementioned amount of RM100,000.00 was withdrawn for the purpose of reducing or redeeming the First Housing Loan for the Taman Tangling Indah House as evidenced from the EPF Statement. [17] On the contrary, the Respondent had contended that the payment of RM100,000 was made by Petitioner to reimburse funds advanced by the Respondent for the purchase of car made allegedly made at the Petitioner’s request sometime around 2013. [18] However, this court finds insufficient evidence adduced by the Respondent to show that the Petitioner had indeed instructed the Respondent to purchase the car or that the withdrawal of EPF was specifically for the reimbursement of funds advanced by the Respondent for the said purpose. [19] Based on the evidence adduced before this court, it is in my considered opinion that it is more probable than not that the EPF withdrawal was intended for the reduction or redemption of the First Housing Loan for the Taman Tangling Indah House. [20] The Respondent had, in the present case, failed to adduce any evidence demonstrating that Maybank Islamic Berhad Account No. 457223314946 was her personal account or was designated as the Loan Account for the purchase of the car. While evidence was presented indicating that the Taman Tangling Indah House was in fact encumbered to Maybank Islamic Berhad, no loan documents relating to Taman Tangling Indah House were submitted to this court. [21] Consequently, the Respondent’s failure constitutes an apt case for the imputation of adverse inference against the Respondent under section 114(g) of the Evidence Act which reads as follows:-

“Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume:- ...

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it;” [22] This court also acknowledges as a matter of judicial notice that an application for the withdrawal of EPF funds necessitates accompanying documentation. Specifically, in instances of reducing or redeeming First Housing Loan, documents relating to purchase of the house, loan agreements and other relevant documents must be furnished for EPF approval. Moreover, withdrawal payments for the said purpose are typically credited directly into the Housing Loan Account, as supported by documents submitted to the EPF. [23] In this present case, the Petitioner had applied for EPF withdrawal for the purpose of reducing or redeeming the First Housing Loan. This withdrawal was subsequently credited directly into the Maybank Islamic Berhad Account No. 457223314946, belonging to Teh Ling Ling, as evidenced by Exhibit P-3. [24] For the reasons outlined above, it is in my definitive conclusion that the Petitioner had indeed made payments and contributions towards the acquisition of the Taman Tangling Indah House during the course of their marriage, thus rendering the property a matrimonial asset. [25] Section 76 of the Law Reform (Marriage and Divorce) Act (LRA) provides for the framework for the division of matrimonial assets upon the granting of a divorce decree. The Court is required to consider several factors when making such division as follows:- "76. Power for court to order division of matrimonial assets

the Court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage by their joint efforts or the sale of any such assets and the division between the parties of the proceeds of sale.

In Exercising the power conferred by subsection (1) the Court shall have regard to:-

the extent of the contributions made by each party in money, property or work towards acquiring the assets;

any debts owing by either party which were contracted to their joint benefit;

the needs of the minor children, if any, of the marriage and subject to those considerations, the Court shall incline towards equality division.

The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired during the marriage by the sole effort of one party to the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.

In exercising the power conferred by subsection (3) the court shall have regard to:-

the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring the family;

the needs of the minor children, if any, of the marriage; and subject to those considerations, the court may divide the assets or the proceeds of sale in such proportions as the court thinks reasonable; but in any case the party by whose effort the assets were acquired shall receive a greater proportion.

For the purposes of this section, reference to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts." (emphasis added). [26] This legal position was affirmed in the case of James Jemut Masing v. Fiona Frances Masing (F) nee Henderson [1994] 2 CLJ 390, where Justice Chong Siew Fai had stated as follows:- "Law on Division of assets For the division of properties acquired during the marriage, the law divides them into 2 categories:-

Assets acquired by the couple by their joint efforts;

Assets acquired by the sole effort of one party to the marriage. For category (1) i.e. assets acquired by joint efforts for the couple, the Court shall lean towards equality of division subject, however, to the following factors for consideration:

The extent of the contributions made by each party in money, property or work towards the acquiring of assets;

Any debts owing by either party which were contracted for their joint benefit;

The needs of the minor children of the marriage For category (2) i.e. assets acquired by the sole effort of one party to the marriage, the Court may divide the assets in such proportions as it thinks reasonable, regard to be had to the following considerations:

The extent of the contributions made by the other party who did not acquire the assets, to the welfare of the family by looking after the home and caring for the family;

The needs of the minor children of the marriage; Provided, however, that in any case the party by whose efforts the assets were acquired shall receive a greater proportion. The court may, instead of dividing the said assets, order the sale of such assets and the division of the proceeds of sale between the parties. [27] Reference was also made to the case of Baheerathy Arumugam v. V Gunaselan V Visvanathan [2013] 1 CLJ 954; [2012] 5 AMR 771, where Justice Yeoh Wee Siam stated as follows:- "The guiding principle under s. 76(2) of the LRA is for the court to incline towards equality of division of the matrimonial assets if both parties have acquired the assets by their joint efforts. " [28] The above cases emphasized the inclination of our courts towards the equality of division for assets acquired through joint efforts. [29] Considering the circumstances of the case, it is noted that the Taman Tangling Indah House was purchased solely in the Respondent’s name for the total sum of RM388,000.00. It is my finding that the Petitioner had contributed RM100,000.00 from his EPF funds, whilst the Respondent had paid the deposit of RM5,000.00 towards the purchase price of the Taman Tangling Indah House and the remainder financed through Maybank Islamic Berhad Loan under the Respondent's name. [30] For reasons stated above and in accordance with section 76(2)(c) of the LRA, it is deemed just and equitable to divide the Taman Tangling Indah House as follows:-

40% share for the Petitioner;

40% share for the Respondent; and

20% share to be held in trust by the Respondent for the Child, Tham Chee Yan. [31] In light of the Respondent’s expressed intention to retain the Taman Tangling Indah for herself and the child, it is directed that the Respondent reimburse the Petitioner the sum equivalent to the Petitioner’s 40% share of the property in cash. To facilitate this, a valuation report to ascertain the current market value of the property shall be commissioned, with both parties to bear the cost of the assessment equally. Given that the Taman Tangling Indah House is currently encumbered by a housing loan from Maybank Islamic Berhad, the calculation of the Petitioner's entitlement to the 40% share in cash will be based on the net value of the Property, factoring in the market value minus the redemption sum and any incidental cost. [32] Having also considered the Respondent’s unemployment status and potential inability to pay the 40% share in a lump sum promptly, I therefore granted the Respondent a reasonable period of 12 months to fulfil the said obligation. Should the Respondent fail to comply within the specified time frame, it is mandated that the Matrimonial Home be sold, and the net proceeds from the sale distributed in accordance with the previously determined allocation of shares. MATRIMONIAL DESA RISHAH INDAH HOUSE [33] The Petitioner acquired the Desa Rishah Indah House on 5.5.2008 while the marriage between parties was still ongoing. Both the Petitioner and the Respondent resided in the said house from 2008 until 2016. [34] Section 76 LRA 1796 empower the Court to consider various factors for achieving equality of division of matrimonial assets. These factors include the payment of family expenses, contributions to the welfare of the family by one party who did not acquire assets, and the duration of the marriage. The amended provisions provide better protection for wives and mothers who chose to be homemakers or full-time caregivers at the outset of their marriage. Previously, under the earlier wording of section 76 LRA 1976, they were often deprived of a share in assets acquired for the family's welfare due to the difficulty in proving "joint effort." It is important to note that all assets acquired during the marriage are now considered as matrimonial property under the current legal framework. [35] In the present case, the Respondent made the decision to resign from her employment and assumed the role of a full-time homemaker and caregiver for the Child with special needs, thus contributing significantly to the family’s welfare. [36] Given these circumstance and considering the Child’s needs under Section 76(2)(c) of the LRA, it is deemed just and equitable to divide the Desa Rishah Indah House as follows:-The Respondent sought for the share of 50% be granted to the Child of the marriage to which this court agrees. For reasons stated above, and having considered the needs of the child pursuant to s. 76(2)(c) of the LRA, it is in my considered view that it is just and fair to order that the said Desa Rishah Indah House should be divided as follows:-

50% share for the Petitioner;

50% share to be held by the Respondent in trust for the Child, Tham Chee Yan. MAINTENANCE FOR THE RESPONDENT [37] Sections 77 and 93 of the LRA 1976 expressly provides for the maintenance of spouses and children respectively which read as follows:-

“Power for court to order maintenance of spouse

The court may order a man to pay maintenance to his wife or former wife--

during the course of any matrimonial proceedings;

when granting or subsequent to the grant of a decree of divorce or judicial separation;

if, after a decree declaring her presumed to be dead she is found to be alive.

The court shall have the corresponding power to order a woman to pay maintenance to her husband or former husband where he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health, and the court is satisfied that having regard to her means it is reasonable so to order.

Power for court to order maintenance for children

The court may at any time order a man to pay maintenance for the benefit of his child--

if he has refused or neglected reasonably to provide for the child;

if he has deserted his wife and the child is in her charge;

during the pendency of any matrimonial proceedings; or

when making or subsequent to the making of an order placing the child in the custody of any other person.

The court shall have the corresponding power to order a woman to pay or contribute towards the maintenance of her child where it is satisfied that having regard to her means it is reasonable so to order.

An order under subsection (1) or (2) may direct payment to the person having custody or care and control of the child or trustees for the child.” [38] When determining the amount, it is imperative to strictly adhere to the criteria outlined in Section 78 of the Law Reform (Marriage and Divorce) Act 1976. This section stipulates:

“Assessment of maintenance In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.” [39] The Nisi Order for the maintenance of the wife is established with the explicit intention to ensure the Respondent’s financial well-being and facilitate her adjustment to life following the divorce proceedings, without unjustly enriching her. [40] After a thorough examination of the evidence presented, it is my determination that the evidence provided by the Respondent regarding her needs and the Petitioner's financial capacity is significantly deficient. The Respondent has failed to meet the burden of proof required to substantiate her request for a monthly maintenance of RM2,000 from the Petitioner. [41] Furthermore, this court has duly taken into account that the Respondent possesses the means and opportunities, as envisaged under section 78 of the LRA, to strive for self-sufficiency and independence. Hence, her request for maintenance to sustain herself must be accordingly adjusted from the initially claimed RM2,000 to RM1,000, which, based on the facts presented, is deemed fair and reasonable. MAINTENANCE FOR THE CHILD [42] Evidence were led by the Respondent to show that the Child, Tham Chee Yan has been diagnosed as a Person with Disabilities who is facing autism-related challenges. [43] The Respondent had in the present case, asserted that the Child, exhibits severe autism and necessitates ongoing medical treatment, continuous care, and constant supervision from the Respondent, a claim which was vigorously contested by the Petitioner due to purported inadequacy of evidence. [44] Based on an evaluation done by the Hospital on the Child, it was clearly stated that “Last review at 9 years 7 months, he has emerging skills in literacy and mathematics but will have difficulty coping in mainstream education without support”. [45] Clearly the Child does experience a degree of learning disability requiring special attention. In light of the Respondent’s claim for the total maintenance of RM4,000.00 for the Child while the Petitioner proposed RM1,500.00 as maintenance for the Child. In Leow Kooi Wah v. Philip Ng Kok Seng [1997] 1 LNS 419; [1997] 3 MLJ 133, Mahadev Shankar J said: “(3) In quantifying the maintenance payable, the court is required by s. 78 of the Act to base its assessment on the means and needs of the parties, regardless of the proportion such maintenance bears to the parties' income but having regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.” [46] Having thoroughly assessed the financial circumstances of both parties and taking into account the age and specific needs of the child, I find it appropriate to order the Petitioner to pay a reasonable sum of RM2,000.00 for the maintenance of the child. This determination is made with due consideration given to the child's special requirements as well as the financial capacity of the Petitioner. Payments are to be remitted before the 7th day of each month, with immediate effect from the date of this order. ACCESS TO THE CHILD [47] The Petitioner has solely requested reasonable access to the Child, which was not contested by the Respondent. Consequently, I hereby order that sole custody, care and control of the Child be granted to the Respondent, with the Petitioner being accorded with reasonable access as detailed in paragraphs 45 and 46 of the Petitioner’s submission as follows:-

That the Petitioner be given reasonable access to the Child, Tham Chee Yan;

(ii) The Petitioner be granted the opportunity to spend Chinese New Year holiday with the Child. The Petitioner is permitted to pick up the Child one day before the eve of Chinese New Year at 10 a.m. and to return the Child by 2 p.m. on the second day of Chinese New Year, commencing from the year 2024;

(iii) In respect of school holidays, the Court orders that the Petitioner shall have one week out of the two weeks of the school term break to spend with the Child. The Respondent shall be allocated the first week, while the Petitioner shall be allocated the second week, and vice versa. Additionally, during the three-week year-end school break of 2023, the Petitioner shall spend the first 12 days with the Child. Furthermore, during the four-week term break in March, the Petitioner shall be permitted to spend the initial two weeks with the Child. CONCLUSION [48] Based on the foregoing reasons, I grant an order dissolving the marriage as per the divorce petition. The decree nisi is to be made absolute one month from the date stated herein. [49] Concerning the Taman Tangling Indah House, I find it just and fair to order that the said Taman Tangling Indah House be apportioned as follows:-

40% share for the Petitioner;

40% share for the Respondent; and

20% share to be held by the Respondent in trust for the Child, Tam Chee Yan. [50] Considering the Respondent's intention to retain the Taman Tangling Indah House for herself and the child, it is my decision that the Respondent reimburse the Petitioner an amount equivalent to the Petitioner’s 40% share of the property in cash. A valuation report to ascertain the current market value of the property shall be conducted for this purpose, with both parties equally responsible for the cost of the valuation report. As the Taman Tangling Indah House is currently under a Maybank Islamic Berhad housing loan, the Petitioner's entitlement to the 40% share to be paid in cash by the Respondent shall be calculated on the net value of the property, i.e., market value less the redemption sum and other incidental costs. [51] Taking into account the Respondent's unemployment status and potential difficulty in paying the 40% share in a lump sum immediately, I grant the Respondent a reasonable period of 12 months to settle the Petitioner's 40% share of the property. Failure to do so within the stipulated time shall necessitate the sale of the said Matrimonial Home, with the net proceeds to be divided according to the allocated shares stated above. [52] With regards to the Desa Rishah Indah House, I deem it fair and just to apportion the Desa Rishah Indah House as follows:-

50% share for the Petitioner;

50% share to be held by the Respondent in trust for the Child, Tam Chee Yan. [53] For the maintenance of the Respondent, I order that the Petitioner pay the Respondent RM1,000.00 per month for the maintenance of the Respondent commencing from the date of this order. The said maintenance is to be banked into the Respondent's account by the Petitioner, the details of which is to be provided by the Respondent to the Petitioner. The said maintenance is to be banked into her account by the seventh day of each month commencing from the date of this order. [54] For the maintenance of the Child, I order that the Petitioner pay the Respondent RM2,000 per month for the maintenance of the Child commencing from the date of this order until the completion of the children tertiary education. The said maintenance is to be banked into the Respondent's account by the Petitioner, the details of which is to be provided by the Respondent to the Petitioner. The said maintenance is to be banked into her account by the seventh day of each month commencing from the date of this order. [55] In consideration of the aforementioned cases and the special needs of the Child, I find it just and equitable to order that 25% of the Petitioner’s EPF monies be transferred by the Petitioner to the Respondent to be held in trust for the Child. [56] Concerning access to the said Child, I order that the Petitioner be granted reasonable access as prayed in paragraph 45 and 46 of the Petitioner’s Submission as follows:-

That the Petitioner be given reasonable access to the Child, Tham Chee Yan;

(ii) The Petitioner be granted the opportunity to spend Chinese New Year holiday with the Child. The Petitioner is permitted to pick up the Child one day before the eve of Chinese New Year at 10 a.m. and to return the Child by 2 p.m. on the second day of Chinese New Year, commencing from the year 2024;

(iii) In respect of school holidays, the Court orders that the Petitioner shall have one week out of the two weeks of the school term break to spend with the Child. The Respondent shall be allocated the first week, while the Petitioner shall be allocated the second week, and vice versa. Additionally, during the three-week year-end school break of 2023, the Petitioner shall spend the first 12 days with the Child. Furthermore, during the four-week term break in March, the Petitioner shall be permitted to spend the initial two weeks with the Child.

(iv) Each party shall bear their own costs. Dated: 15.03.2024 -signed- (ABDUL WAHAB BIN MOHAMED) JUDGE HIGH COURT OF MALAYA IPOH, PERAK Pihak-pihak Tetuan Chandra Segaran Peguamcara & Peguambela No. 3, Tingkat 1, Lorong Jermal Indah Taman Jermal Indah 12300 Butterworth Pulau Pinang Tel:

04.3104121/04.3104122 / 017.9027113 Emel: csegaran@ymail.com Peguamcara: Hari Prassaad Rao a/l Chandasegaran

1.1, First Floor, Wisma Kota Emas 27-29, Jalan Dato Tahwil Azhar 30300 Ipoh Perak

05.2413789 Faks: 05.2413790 Emel: amongipoh@gmail.com Peguamcara: Nanda Kumar a/l P.S. Suppiah