Yugabalan A/L Narasiman v Puspa Valli A/P Govindasamy (JA-33-53-02/2024)

The Respondent Husband (“RH”) has filed a Divorce Petition against the Appellant Wife (“AW”), inter alia, to dissolve the marriage between the RH and the AW on 24.11.2023 (Enclosure 1).

After considering all the cause papers, pre-trial documents and proposal by the RH and the AW, I made the following order on 14.10.2024, amongst others:

the marriage between the RH and the AW be dissolved immediately;

care and control of the child to be given to the AW;

joint custody of the child given to the RH and AW for the matters relating to education, welfare and religion of the child;

the RH be given—

one (1) year of supervised access to the child from the date of this order where the RH can visit the child twice a month, namely every second and fourth week Sunday from 2.00 pm to 5.00 pm at a public place to be agreed by the parties vide Whatsapps one (1) day before the visit;

(ii) a year later, the RH is given unsupervised access to the child where the RH can visit the child twice a month, namely every second and fourth week Sunday from 10.00 am to 5.00 pm without the presence of the AW;

(iii) when the child reach the age of six (6), the RH be given overnight access for one (1) night either on the second or fourth week; and

the RH to pay maintenance of the child—

RM400.00 every month on or before 27th of each month, for a period of one (1) year from the date of the order; and

(ii) a year later, pay RM500.00 every month for the maintenance the child;

(iii) when the child reach the age of seven (7), pay RM800.00 every month until the child completes his Bachelor Degree.

Below are my grounds of the decision.

The background facts in this application are gathered from the cause papers.

RH and AW were married in Johor on 01.11.2019 and lives in Johor Bahru. They have one child who was born on 11.08.2021. The child was three (3) years old at the date of the hearing of Enclosure 1.

The parties had a huge fight sometime in March 2022, amongst others, the AW has raised issue about the RH’s mother who suffered a stroke and was partially paralyzed at that time. The RH has asked the AW not to disturb his mother and AW refused to listen. The RH then asked the AW to leave the matrimonial home and stay at her mother’s place for the time being until the conflict was resolved. The AW left the house with the child and never return home after this.

The AW on the other hand denied the allegations and contended that she was forced to move out from the house with the child after the fight with the RH sometime in March

The RH has threaten to harm her if she refused to leave the matriominal home. She averred that the fight was due to the RH’s mother cursing her on that day.

On 14.10.2024, the parties informed the Court that the matter had been mediated at the Mediation Centre on 16.07.2024 and the mediation failed because the parties were not able to reach an agreement.

The parties then informed the Court that there are only two (2) issues that cannot be settled, namely the access rights and the maintenance to the child.

I then requested the parties to discuss the proposal made by each other first and I will mediate the matter on the issues which had not been resolved by the parties. Subsequent thereto, the parties reached an amicable agreement, I then recorded the terms as stated in the Court Order dated 14.10.2024.

The issues to be determined by this Court is—

whether the Order made on 14.10.2024 is a Consent

whether the Consent Order is appealable. COURT ANALYSIS AND FINDINGS Whether the Order made on 14.10.2024 is a Consent Order 12. In regard to the first issue, the AW argued that the Order made on 14.10.2024 is not a Consent Order and that she never agreed with the terms in the said Order.

The RH on the other hand, argued that the Order is a Consent Order and the terms in the said Order was based on the discussion and negotiation between the Parties through mediation.

During the hearing on 14.10.2024, the RH’s solicitor informed the Court that RH has requested for a joint custody of a child who was aged three (3) years old during the hearing of Enclosure 1 and requested access to the child every two (2) weeks. The RH’s solicitor informed the parties have agreed with the supervised access which has been carried out eight

months ago prior to the hearing of Enclosure 1. The RH proposed to pay the maintenance of RM300 per month.

The AW on the other hand proposed that the supervised access be given to the RH and payment of RM500 per month as maintenance to the child. When the child reaches the age of seven (7) years, the RH has to pay the maintenance of RM1000 per month. Overnight access only be given to RH when the child attends secondary school subject to the consent of the child to meet the RH.

The parties later negotiated and informed the Court they have agreed that the RH be given supervised access as per the terms as stated in paragraph 2(d) above. However, the AW did not agree to grant the overnight access to the child at the moment and has proposed that overnight access be given when the child attends secondary school. The RH disagreed with the proposal.

After considering the concern of the AW on the overnight access and taking into account the interest of the RH and the welfare of the child, I suggested that access to the child be carried out in stages where the supervised access be given to the RH twice in a month for a period one (1) year. This is to allow the RH to have bonding time with the child. I continued to suggest that one year later, the RH should be able to have unsupervised access to the child twice in a month. I then suggested that the RH to have overnight access of the child once in a month when the child attains the age of six (6) years old. I calmly discussed with parties that to allow the RH to have overnight access only when the child is attending secondary school is not in the interest and welfare of the child and RH as it will create a gap of bonding between the RH and the child. It will also cause hardship and unfairness to RH. Both parties conceded this fact.

Further, in coming to a consensus on the payment of maintenance to the child for the sum stated in paragraph 2(e) above, I had noted both the proposals of the parties and also the means and needs of the parties. I urged the AW to consider the financial capacity of RH, his ability to pay and the realities of the parties’ financial positions. For the RH to pay the amount as requested by the AW will cause undue financial hardship to him.

In the instant case, the RH is working at Tenaga Nasional Berhad with the basic monthly income of RM3500 and his commitment such as housing installment of RM4010 per month and car installment of RM1600 per month, payment to the mother of RM1000 per month, his daily expenses and transportation. With the assistance of his family to pay some of his expenses, the RH left with RM1000 per month where he has agreed to give half of it to the child. I gently suggested that RH to pay monthly maintenance of RM400 per month for the first one (1) year and the maintenance to be increased to RM500 per month a year later after he has disposed off his car. When the child attains the age of seven (7), the maintenance of the child can then be increased to RM800 per month until the child complete his first degree. Both parties also conceded to this.

Subsequent thereto, the RH’s solicitor sent the draft Order to the AW’s solicitor for approval. The draft Order was amended by the AW’s solicitor and sent back to the RH’s solicitor . The draft Order was then approved and a fair copy of the Order was then filed in Court on 21.01.2025 by the RH’s solicitor.

The AW then filed a Notice of Appeal on 13.11.2024 to appeal against the whole decision made on 14.10.2024, including the order to dissolve the marriage of the parties.

I was shocked to know the AW has filed the appeal and denied the order is a Consent Order. AW contended that she has never agreed with terms in the Order.

Based on the records of the Court, the parties informed the Court on 14.10.2024 that there were only two (2) issues that are pending and could not be settled by the parties, namely the issue of access to the child and the payment of the child maintenance. The AW never at any material time raised the issue on the payment of her maintenance and the division of the matrimonial home. Instead, the AW participated actively to negotiate with the RH and made a counter proposal to RH. AW later agreed to the terms when the terms were read to the AW and RH by me before I recorded the terms. None of them raised any objection to the terms as stated in the Order dated 14.10.2024. I also asked both RH and AW whether there was any issue that the parties would like to raise before the Order is made, the RH and AW informed none. Hence, the Court Order dated 14.10.2024 is a Consent Order that recorded the terms agreed by the parties.

The terms recorded in fact is in favour of the AW and is rather closely similar to the counter proposal made by the AW. It is pertinent to note that the Consent Order has been recorded after both parties had agreed that the welfare of the child is paramount and through a good mediation exercise between the parties. The terms recorded are the terms agreed by the parties.

The contention of the AW after the Order was made is clearly an afterthought and attempting to avoid complying with the terms of the Consent Order by manipulating the facts in order to set aside the whole order.

Further, I refer to paragraph 19(a) of the AW’s Cross Petition where the AW prays that their marriage be dissolved immediately and paragraph 19(b) where she prays that the RH be given supervised access once in a month which is on Sunday from 3pm to 4.30 pm and no overnight access given to the RH. Paragraphs 19(c) , (d) and (e) stated that the RH is to pay the maintenance of RM1300 per month until the child reaches seven (7) years old and thereafter pay the maintenance of RM1800 per month until the child reaches twelve (12) years old. Then the RH is requested to pay the maintenance of RM2300 per month until the child reaches eighteen (18) years old.

However, during the hearing of Enclosure 1 on 14.10.2024, the parties informed that there was an arrangement made by them prior to 14.10.2024 where the RH be given supervised access twice (2) in a month and paid the maintenance of RM300 per month. The arrangements between them departed from the prayers made by the AW in her pleadings.

Further, the terms negotiated and agreed between the parties as per paragraph 2 above and stated in the Order also departed from the prayers made by the AW. It clearly shows that the Consent Order recorded by the Court on 14.10.2024 is through the process of negotiation and agreed by the Parties during mediation.

The AW never raised any objection during the mediation but instead has made a counter proposal to the RH. The terms finally agreed by the parties before it was recorded by this Court.

If the terms of the Order did not reflect the intention of the parties, the AW’s would not have made amendments to the draft Order sent by the RH’s solicitor and subsequently agree to the amendments that had been made.

The appeal by the AW which denies the entire Order recorded on 14.10.2024 is a mere afterthought and is an attempt to avoid her obligations to comply with the terms of the Consent Order.

Whether the Consent Order is appealable 32. Section 68 of the Court of Judicature Act 1964 [Act 91] provides that—

“Non-appealable matters

No appeal shall be brought to the Court of Appeal in any of the following cases:

….

where the judgment or order is made by consent of parties….;”. [Emphasis added]

Therefore, based on paragraph 68(b) of Act 91, the Consent Order is not appealable by the parties.

In this regard, reference is made to the case of Kempadang Bersati Sdn. Bhd. v Perkayuan OKS No. 2 Sdn. Bhd. [2019] 4CLJ 131 where the Federal Court held that – “..[26] Civil matters which are not appealable to the Court of Appeal are listed in subsection 68(1). For instance, there can be no appeal against a judgement or order made by consent of parties or a judgement or order which has been declared final by a stature…”. [Emphasis added]

Further, the Federal Court in the case of Tan Geok Lan v La Kuan [2004] 2CLJ 301 decided that— “A consent judgement or order is not less a contract, and subject to the incidents of a contract, because there is a superadded the command of the court, and its force and effect derives from the contract between the parties leading to or evidenced by, or incorporated in, the consent judgement or order…”. [Emphasis added]

Therefore, a consent order is a contract between the parties and can be enforced. As such, a consent order can only be set aside if the consent order is recorded without the authority or knowledge of the parties.

As a matter of fact and record, the Consent Order was only recorded after the parties have agreed on the terms. The parties were given every opportunity to negotiate the terms of the Consent Order. They are well aware and have full knowledge of the terms of the Consent Order before the Court recorded the terms. Therefore, the order of the Court is a Consent Order which is not appealable under paragrapah 68(b) of Act 91.

It is on the foregoing circumstances and for those reasons stated above, I have made the Order as mentioned in paragraph 2 above. Dated 6 November 2025. Signed by: ……………….. Wong Mee Ling Judge High Court of Malaya Johor Bahru Johor Darul Ta’zim. Counsel/Solicitor For the RH: Ms. Kalpana Kumara Messrs Kalpana & Partners Counsel/Solicitor For the AW: Ms. Kanimoli Sivadurai