Vijaya A/P Sundramoorthy v Vijayasoorya A/L Krishna Murthy (BA-33-888-11/2023)

This is an application dated 27.8.2024 by the Petitioner Wife (PW) in Enclosure 26 for discovery against the Respondent Husband (RH) pursuant to Order 24 rule 3 and 7 and/or Order 92 rule 4 of the Rules of Court 2012 (ROC).

The documents sought by the PW are as listed in paragraph 2 of the Notice of Application which are reproduced below for ease of reference:

2.1 A list of all immovable assets (matrimonial property) in the name of the Respondent and/or held jointly with any other party (if any) within and/or outside the jurisdiction during the marriage period, including Titles, Sale and Purchase Agreements, loans taken, Assessment Taxes, Refinancing or Loan Settlement, Bank Statements from the date of loan approval until now, Lease Agreements and rent Received and the total amount received from any such disposals;

2.2 All bank account numbers together with account statements in the name of the Respondent and/or held jointly with any other party within and/or outside the jurisdiction form June 2002 until now;

2.3 All income received, including salaries, bonuses, allowances and dividends as a shareholder (if any) and interest.

2.4 Statements and insurance policies, Public Mutual in the name of the Petitioner, Respondent, and/or the children of the marriage and/or jointly.

2.5 A list of jewellery, not limited to the number of gold and silver bars stored and secured in the CIMB bank safety deposit box, and/or any other bank;

2.6 The Respondent’s income tax returns for the years 2020 – 2024;

2.7 The Respondent’s latest EPF account statement.

After hearing submissions from both parties, I allowed discovery for the documents listed in Paragraphs 2.1 to 2.4 as well as 2.6 and 2.7. Paragraph 2.5 was not allowed.

The RH is aggrieved and has filed an appeal to the Court of Appeal against the said decision.

The following are the grounds for my decision. Background of the Case 6. The PW aged 50, and the RH aged 49, at the time of the hearing of the present Discovery Application, were lawfully married on 17 February 2010. The marriage was blessed with two children: their eldest, a son, born in July 2010, and their second child, a daughter, born in 2012.

The marriage was not a happy one. The marriage deteriorated rapidly to the extent the PW finally made the decision to leave the matrimonial home together with the Children sometime in 2022.

Subsequently in November 2023 the PW initiated divorce proceedings by filing a divorce petition.

Through her Divorce Petition, the PW sought, among other reliefs, an order directing the RH to bear the costs of education and related expenses of both children of the marriage until the completion of their first degree, as well as orders for child maintenance and the equal division of all matrimonial assets.

In response the RH filed his reply and cross-petition in February 2024 setting out his own grounds for divorce together with the reliefs he seeks pursuant to the dissolution of the marriage.

Pending the hearing of the Divorce Petition, the PW proceeded to file the instant discovery application in August 2024. PW’s Reasons for the application 12. The Applicant contends that the present application is relevant, necessary and unavoidable, arising from the Respondent Husband’s continued refusal to make full and frank disclosure of his financial affairs. Despite repeated demands, the Respondent has persistently failed to produce material particulars of his financial obligations, liabilities, sources of income, investments, savings, and his ownership of both movable and immovable assets. Of particular concern is his deliberate withholding of critical information pertaining to the matrimonial property, including but not limited to the Sale and Purchase Agreement (SPA), the outstanding balance of the housing loan, Employees Provident Fund (EPF) statements, banking records, fixed deposit accounts, and other relevant financial documents. Such non-disclosure has significantly hindered the Applicant’s ability to properly ascertain the full extent of the matrimonial assets and liabilities, thereby rendering the filing of this application inevitable.

The PW submits that disclosure of these documents is imperative in order to enable the Court to conduct a fair, proper, and meaningful assessment of the RH’s financial standing in the exercise of its discretion. Without such disclosure, the Court would be deprived of the essential material required to determine, inter alia, the appropriate quantum of child maintenance, the adequacy of provisions for the education of the two children, and the just and equitable division of the matrimonial assets, including the RH’s EPF.

In her Affidavit in Support of the present application, the PW avers that during the subsistence of the marriage, the RH had acquired various assets, including immovable property, fixed deposit accounts, life insurance policies, and other forms of insurance, some of which were acquired with her knowledge and others without.

The PW further states that shortly after the marriage, and despite her express objections, the RH proceeded to purchase a bungalow through a public auction. The said property was subsequently registered solely in the RH’s name. Thereafter, the RH informed the PW that, since he was servicing the monthly housing loan instalments for the property, she would be responsible for meeting all other expenses relating to the household. These expenses, as deposed by the PW, included costs of renovation, maintenance, quit rent, assessment rates, home fittings, electrical and non-electrical appliances, repairs, and plumbing works.

The PW further averred that following the birth of their second child, she informed the RH that she was no longer in a financial position to continue paying him the monthly sum of RM1,100. In response, the RH unreasonably demanded that the PW contribute a minimum sum of RM20 per day towards his personal daily meals. The PW further stated that in instances where she was unable to purchase food for the RH, he would compel her to reimburse him for the said amount in cash.

The PW further complained that the RH acted selfishly and unreasonably in compelling her to shoulder the entirety of the household expenses, whilst failing to make any meaningful contribution himself towards the maintenance and upkeep of the household.

The PW contends that the making of an order for discovery is therefore essential, as it will compel the RH to disclose his earnings and declare his assets. Such disclosure, she submits, is necessary to enable her to pursue her rightful and equitable share of all assets acquired during the course of the marriage.

For the reasons state above, the PW submits that the documents sought in this application are clearly relevant, material and necessary. The PW avers that such disclosure is indispensable in enabling this Court to scrutinise and ascertain the RH’s true financial position. Only with the production of these documents can the Court be placed in a position to make a fair and just determination of the RH’s assets. RH’s Objections to Discovery 20. In summary the RH submits that the PW is, in essence, seeking discovery of documents of a general nature without proper specificity. Accordingly, the PW cannot rely on the provisions of Order 24 of the Rules of Court 2012, which expressly require an applicant to identify with precision the particular documents sought to be discovered. The RH contends that the PW’s application is nothing short of a fishing expedition and hence ought to be dismissed for want of certainty.

The RH also submits that the documents sought are not relevant to the reliefs sought in the Divorce Petition. The RH points out that the PW’s request for 50% of the RH’s EPF is related to the children’s education expenses and not expenses and argues that the EPF claim cannot be utilized as security for educational expenses under the law.

The RH maintains that the only matrimonial asset owned is the bungalow bought and it is jointly owned by the PW and therefore the PW will have no difficulty of access to any payments or requests related to the property without the need to file this application.

The RH stresses that it is unknown whether those documents sought exist if at all. The RH contends that the PW is misusing the rules of court for her benefit at the expense of the RH. Decision of the Court 24. The PW’s discovery application as seen in Encl 26 is filed pursuant to Order 24 rule 3, 7 and Order 92 rule 4 ROC 2012. The Law and the Applicable Principles [10] Order 24 rule 3 of the Rules of Court 2012 provides as follows:

Order for discovery (O. 24, r. 3)

Subject to the provisions of this rule and of rules 4 and 8, the Court may at any time order any party to a cause or matter (whether begun by writ, originating summons or otherwise) to give discovery by making and serving on any other party a list of the documents which are or have been in his possession, custody or power and may at the same time or subsequently also order him to make and file an affidavit verifying such a list and to serve a copy thereof on the other party.

(There is no paragraph (2)).

(There is no paragraph (3)).

The documents which a party to a cause or matter may be ordered to discover under paragraph (1) are as follows:

the documents on which the party relies or will rely; and

the documents which could -

adversely affect his own case;

(ii) adversely affect another party's case; or

(iii) support another party's case. Order for discovery of particular documents (O. 24, r. 7)

(1) Subject to rule 8, the Court may at any time, on the application of any party to a cause or matter, make an order requiring any other party to make an affidavit stating whether any document specified or described in the application or any class of document so specified or described is, or has at any time been, in his possession, custody or power, and if not then in his possession, custody or power when he parted with it and what has become of it.

An order may be made against a party under this rule notwithstanding that he may already have made or been required to make a list of documents or affidavit under rule 3.

An application for an order under this rule shall be supported by an affidavit stating the belief of the deponent that the party from whom discovery is sought under this rule has, or at some time had, in his possession, custody or power the document, or class of document, specified or described in the application, and that it falls within one of the following descriptions:

a document on which the party relies or will rely; (b) a document which could—

adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case; and

a document which may lead the party seeking discovery of it to a series of inquiry resulting in his obtaining information which may—

adversely affect his own case;

(ii) adversely affect another party’s case; or

(iii) support another party’s case.

An order under this rule shall not be made in any cause or matter in respect of any party before an order under rule 3 has first been obtained in respect of that party, unless, in the opinion of the Court, the order is necessary or desirable.

25.

Hence discovery may be ordered if the following elements are fulfilled:

there must be a document;

(ii) the document must be relevant;

(iii) the document must be or have been in the possession, custody or power of the person against whom the order is sought.

It is the considered opinion of this court that the first requirement as stated above has been fulfilled as the requested documents by the PW from the RH are in fact “documents”. Whether the documents sought are relevant 28. The court finds that all the documents sought from Para 2.1 to 2.4, 2.6 and 2.7 are relevant in determining the RH’s matrimonial assets, income and how it was obtained.

In p 596 of the case of Manilal & Sons (Pte) Ltd v Bhupendra KJ Shan (t/a JB International) [1981] 1 MLRH 584 the court held that a document is relevant if: “Under a general order of court for discovery, a party is obliged to make discovery of all documents relevant to the matters in question in the action. What are the matters in question would depend on the pleadings. A document relates to the matter in question in the action if it contains information which may, not which must, either directly or indirectly enable the party requiring the discovery either to advance his own case or to damage the case of his adversary or which may fairly lead to a train of inquiry which may have either of those two consequences: see Comagnie Financiere et Commerciale du Pacifique v Pervian Guano Co (1881) 11 QBD 55 at p 62. Documents relate to matters in question in the action so long as they are likely to throw light on the case: see Merchants’ & Manufacturers’ Insurance Co Ltd v Davies [1938] 1 KB 196 at p 210.”

The RH’s objections relate to the fact that the PW has not identified specifically the documents sought by the PW and hence equates the application to be nothing but a fishing expedition.

What amounts to a fishing expedition has been clearly described in the case of Thyssen Hunnebeck Singapore Pte Ltd v TTJ Civil Engineering Pte Ltd [2003] 1 SLR 75 as follows: “In my view, I would hold a ‘fishing expedition’ in the context of discovery refers to the aimless trawling of an unlimited sea, Where, on the other hand, the party concerned knows a specific and identifiable spot on which he wishes to drop a line (or two), I would not regard that as ‘fishing expedition.”

To my mind, having considered the pleadings and the categories of documents sought by the PW, I am unable to regard this application as a fishing expedition. While it is true that the documents have not been individually specified, it is nonetheless evident that the categories identified are sufficiently clear and directed at material issues before the Court. The documents relate specifically to bank, credit card and insurance statements, the RH’s income including salary, bonus, allowances and dividends, income tax returns for the years 2020 to 2024 and his latest EPF. The PW has also sought a list of immovable property held solely or jointly with any other party. She wants the RH to furnish her with the titles, Sale and Purchase Agreements, loans taken, assessment taxes, Refinancing or Loan Settlement statements as well as any Lease Agreements and Rental received.

This cannot be viewed as a fishing expedition as the category of documents are identified. These documents specifically relate to the earnings and income of the RH and the property he has in his possession. The PW is not aimlessly “trawling the open seas”. In my opinion the PW knows and wants a specific and identifiable spot into which she wishes to drop her line and she has dropped her line on those categories of documents listed in the notice of application. In my view the PW has clearly identified the documents she wants. Since she knows where exactly the fish are, I would not want to call this a fishing expedition.

In this context the Singapore Court of Appeal decision of Kuah Kok Kim & Ors v Ernst & Young (a firm) [1997] 1 SLR 169 is on point. It held as follows: “As long as the appellants described the type or class of documents with reasonable precision and that class of documents were relevant to the cause of intended cause of action would be enough. They need not go on to describe and name each and every such document specifically. Indeed, it would be unreasonable and impossible for the Appellants to do so.”

The RH cannot be said to be confused by what is sought by the PW. From my analysis of the reliefs sought, shows that the PW has amongst others alleged that she is a victim of the RH’s constant and prolonged physical and mental abusive conduct on her as well as the children. She has alleged that she was subject to financial hardship and penalties imposed on her throughout their marriage and had been coerced and pressured to support him financially to the extent that she had to bear all costs and expenses of the household, the children including the RH’s ones.

Those documents sought by the PW are in my opinion stated not in a general way that would confuse the RH to supply them. Its contents relate directly to the matter in issue which will fulfil the purpose of discovery for fair disposal of the Divorce Petition.

Further from what I have gathered through the affidavit evidence, the PW does not have any knowledge or information in regard to the extent of any other matrimonial assets owned by the RH except the one where the family used to reside. Even that matrimonial property is registered solely in the name of the RH.

Therefore, the request for disclosure of all the documents pertinent to the matrimonial property is reasonable, relevant and necessary in order to show the true financial standing and capacity of the RH. If these documents are not produced the PW will be handicapped and unable to obtain her fair share of the matrimonial assets and that would cause an injustice to the PW and the children of the marriage.

From the evidence adduced the PW alleges that she was the one who bore the burden of supporting and maintaining the family expenses at the material time and that her earnings were all used for the upkeep and maintenance of the matrimonial home and the children’s daily expenses. The PW also asserted that she had contributed her time effort and energy to raise the children of the marriage apart from working at her job and it would be unjust if the RH disregarded the PW’s contribution to the family.

It is pertinent to note that the RH has strongly denied all the allegations made against him and has, in turn, asserted that he was the one who maintained and supported the family, bearing all expenses relating to the matrimonial property as well as the children’s needs. In light of the parties’ diametrically opposed assertions, the disclosure of the requested documents becomes all the more imperative, as such evidence is necessary for the Court to fairly and justly resolve the issues in dispute.

In the case at hand the documents are necessary and relevant to ascertain the apportionment of the division of the assets acquired and held by the RH during the duration of the marriage. The information divulged from the bank, credit, insurance statements, the particulars of income etc are critical to enable the PW to argue her case and claim hers and the children’s rights to their share of the assets. In any matrimonial dispute these documents are important because they provide crucial information about the income and financial resources of the parties involved. The division of assets and determination of financial support depend on these documents. These documents can help the court to assess the financial resources available to each party, evaluate their lifestyles prior and during the pendency of the matrimonial dispute as well as to assist the court to come to an informed decision regarding the division of property, spousal and child maintenance.

Documents on the RH’s income and salary are relevant and necessary in any matrimonial dispute before the court. In Yeap Lily v Chong Chee Ming [2023] CLJU 1019 the court held that: [30] Pay slips are important in a discovery application in a marital dispute because they provide crucial information about the income and financial resources of one or both parties involved in the dispute. In a divorce or matrimonial proceedings, the division of assets and determination of financial support obligations may depend on the income and earning capacity of the parties. In fact, pay slips can offer a comprehensive overview of an individual’s income, including details such as salary, bonuses, commissions and deductions. They serve as tangible evidence of a person’s earnings and can held establish their financial standing and ability to contribute to the marital estate or provide financial support. [31] By examining pay slips, the Court would be able to assess the financial resources available to each party, evaluate their standard of living and make informed decisions regarding property division, maintenance, or other financial matters. As such the relief pertaining to pay slips as identified by the Petitioner was allowed.”

In the case of Ewe Khay Guan (suami) v Chin Oi Khiun (isteri) [2023] 9 CLJ 42 the court held that income tax documents are important supporting documents for the case of both parties: “[59] In relation to the income tax document, it is relevant because this will determine the amount of PH’s income because there are claims related to the spouse’s ability to contribute or won the disputed marital property. This will not “harm” PH because this is an important supporting document for the case of both parties. [60] The argument that income related documents, credit cards and bank statements are irrelevant because RW is not claiming maintenance in this case is inaccurate. This is because the document is not only for maintenance purposes but also for Divorce Petitions where the financial capacity of the parties becomes an issue. Based on the financial capacity it can be assessed whether RW or PH is in a comfortable financial position to claim that the properties mentioned were purchased or also involve financial contributions from both of them.

As for the EPF statements, these will provide evidence of the RH’s present and future financial standing after he retires. Contrary to RH’s contentions, EPF are matrimonial assets and may be subject to division in a matrimonial dispute. In Yeap Lily’s case the court held that: “[32] Monies in the Respondent’s EPF would provide concrete evidence of the party’s retirement savings, financial contributions and financial standing. [33] Since monies in the EPF are matrimonial assets which may be subject to division in a marital dispute, current statement pertaining thereto may be useful in ensuring a fair and equitable resolution of financial matters and assist the Court in making informed decisions regarding assets division. [34] As such, the Petitioner’s relief pertaining to the Respondent’s current EPF statement was allowed.

The importance of the discovery sought in respect of the RH’s bank and credit card statements cannot be overstated. Such documents are directly relevant to ascertaining the RH’s true financial means and capabilities. From these statements, the Court will be in a position to evaluate his actual spending patterns and financial conduct, which are material to the determination of the issues before it.

Documents relating to immovable property or assets are equally relevant in the present application, as the PW, through her reliefs in the Divorce Petition, has specifically claimed a share in any matrimonial property owned by the RH, whether solely in his name or jointly with any third party.

In my view the discovery applied is necessary for disposing fairly of the Divorce Petition and Cross petition. It is my view that to deny the application will result in the PW and the children suffering indefinitely on how to deal with their entitlement to the matrimonial assets.

Having considered the pleadings filed by both parties in the Divorce Petition and Cross-Petition, this Court is satisfied that the documents sought are not only necessary to identify the assets in question but also to trace and locate the income and funds belonging to the RH. Such disclosure would further serve, in some measure, to preserve the assets pending the final disposal of the Divorce Petition.

The Court finds that the discovery sought is fundamentally directed towards enabling the PW to trace and uncover assets that may have been concealed from her knowledge. This will, in turn, assist the Court in gaining a full and accurate appreciation of the RH’s financial position and the extent of his assets. The documents sought are therefore clearly relevant to the facts in issue in the Divorce Petition.

Having reviewed the pleadings, this Court is satisfied that the documents identified in the list attached to the Notice of Application contain information that may directly or indirectly assist the PW in advancing her case or undermining the RH’s case. It will save costs for all parties involved.

It would be disingenuous of the RH to resist the application as the RH’s own pleadings maintain that he was the one who primarily bore all expenses and costs of maintaining the family and the household. In light of this the RH cannot now reasonably assert that those documents sought are irrelevant and unnecessary to the Divorce Petition. The discovery of these documents would greatly either advance a party’s own case or damage that of the adversary. Without doubt the court will be greatly assisted with all relevant and necessary documents put before it.

It is further the view of this Court that the discovery of these documents is necessary for the fair disposal of the proceedings. The RH is under a duty to make full and frank disclosure of all relevant documents in order for the trial to be adjudicated fairly and equitably. The documents sought are crucial in substantiating either the PW claims or the RH’s defences, and they lie at the very core of the issues to be determined by this Court. Whether Documents sought are in the RH’s possession 53. The burden is upon the PW to establish that the documents sought are, or have been, in the possession of the RH. Having considered the matter, this Court is satisfied that, on a balance of probabilities, the documents are within the RH’s possession, custody, or power. It is the RH alone who has access to his bank accounts, income tax records, and Employees Provident Fund (EPF) statements. The RH would face no difficulty in furnishing the PW with copies of his bank account statements, credit card statements, insurance policies, and income records.

The matrimonial home being registered solely in the RH’s name further entitles the PW to obtain copies of all documents pertinent to the said property in order for the Court to fairly and equitably divide the matrimonial assets between the parties.

In any event, the RH has not, through his affidavits in reply, denied being in possession of the documents sought, nor has he contended that such documents do not exist. In the circumstances, no prejudice would be occasioned to the RH should an order be made compelling him to produce these documents. Conclusion 56. The RH is under an obligation to provide full and frank disclosure. For this reason, this court is unable to accept the RH’s resistance to the PW’s application. If he obstinately refuses to do so then he should not complain if at the trial the PW requests the Court to draw an adverse inference against him.

Lastly the RH must know that the order given by the court is for him to disclose the documents by way of affidavit. If the RH cannot produce the documents listed, the RH has a right to state in the affidavit all the reasons why the documents cannot be produced for inspection.

Regarding the time frame of disclosure, this court orders that the appropriate time period is from 2020 until todate.

For the reasons above the PW’s application is therefore allowed with costs. Dated 30 August 2025. (JULIE LACK) JUDGE HIGH COURT OF MALAYA SHAH ALAM SELANGOR DARUL EHSAN (SELANGOR) Counsel for the Petitioner : K. Swathi Shankri A/P Kanniaseelan (Messrs SK Swathi & Co) Counsel for the Respondent : Pramjit Kaur (Messrs Mann & Associates)