- 法庭指出，除非提出的通奸证据，没有合理理由解释被告不是做出通奸行为，法庭是不会做出此行为为“通奸”结论 (Wee Hock Guan v Chia Chit neo  1 MLJ 217)。一般的通奸行为可以通过以下方式证明：
- 在 Gurmail Kaur Sadhu Singh v Dr Teh Seong Peng  11 MLJ 843 的案件里, 法庭判说，“法律的定律，当原告提控被告通奸行为时，原告必须提出毫无疑问的证据 (beyond reasonable doubt) 证明通奸的存在和通奸导致婚姻破裂。
- 通奸与婚姻产业的分配是没有关系的 (SS v HJK  1 LNS;  AMR 145)。
- 法庭最终裁决女方未能具体列出丈夫和第三方的关系，没有提出可信证据（太太只是在申请里说，丈夫和第三方有染，就没有再写什了)，而且无法提供可信的证据， 因此她对第三方与男方有通奸关系的指控不足以能申请对方为答辩人。
- Petitioner Husband (“PH”) filed a single divorce petition under section 53 of Law Reform (Marriage and Divorce Act) 1976 (“the LRA”) seeking for a dissolution of his marriage to RW, transfer of property and other prayers.
- RW filed an acknowledgment of service. However, instead of filling her answer to the petition as mandated by Rule 16(1) DMPR 1980, RW had chosen to file an application (Enclosure 11) to add a co-respondent which she alleged is in an adulterous relationship with her husband and is presently living with him at the matrimonial home.
- PH averred that what was done by RW is wrong in law as she has failed to reply to the petition and has failed to comply with the provision under the Divorce And Matrimonial Proceedings Rules 1980 (“the DMPR 1980”) and Rules of Court 2012 (“RC 2012”).
SUBMISSION FOR THE RESPONDENT WIFE (“RW”)
- RW argued that the present application was filed under section 58 of the LRA and Rule 15(3) DMPR 1980 and submitted that parties had been married for 16 years with no children.
- For this purpose, the court was alluded to:
- Ho Ching Choo v Ng Kian Beng  6 MLRH 344, where the court had allowed the application to add the adulterer as a co-respondent.
- Mark Lester Jackson v Maryanne Alexander V Charles & Anor  MRHU 1510, where the court decided that parties can apply to add the co-respondent before serving the Divorce Petition to the adulterer.
- RW argued that since the co-respondent was not named in this divorce petition and since RW has the intention to claim damages from the co-respondent, the co-respondent must therefore be added to the present divorce petition.
SUBMISSION BY THE PETITIONER HUSBAND (“PH”)
- PH submitted that the application (enclosure 11) ought to be dismissed based of the following reasons:
- She had failed to file any pleadings in response to the said petition for divorce.
- PH submitted that by referring to Rule 11 DMPR 1980, before any application to add a co-respondent, the respondent must first reply to the petition and named the co-respondent in her reply and if there is an allegation of adultery, the provision of Rule 11 DPMR 1980 must be adhered to.
- In the case of Gurmail Kaur Sadhu Singh v Dr Teh Seong Peng  11 MLJ 843;  2 CLJ 42, where Yaacob Md Sam J (as his Lordship then was) held as follows: “It is trite law that in relation to an allegation of adultery, the standard of proof for adultery is beyond reasonable doubt and the adultery had caused the breakdown of the marriage.
- Wee Hock Guan v Chia Chit Neo & Anor (1964) 1 MLJ 217, CJ Singapore, Winslow J said : “It is well established that an allegation of this nature must be proved to the satisfaction of the court beyond reasonable doubt and that the onus of so satisfying the court in this case rests upon the petitioner. The evidence must go beyond establishing suspicion and opportunity to commit adultery and must be such as to satisfy the Court that from the nature of things adultery must have been committed; where the evidence is entirely circumstantial the Court will not draw the inference of guilt unless the facts relied on are not reasonably capable of any other explanation. The inference of adultery arises when there is proof of the disposition of parties to commit adultery, together with the opportunity to commit it”;
- Choong Yee Fong v Ooi Seng Keat & Anor (2006) 1 MLJ 791; Faiza Tamby Chik J said: “The petitioner must prove to the satisfaction of the court beyond reasonable doubt that the respondent had committed adultery and it is due to the alleged adulterous relationship which led to the breakdown of the marriage”.
- The learned counsel submitted that RW had failed to particularise the allegation of adultery, to provide with believable evidence. Her bare averment that the co-respondent is in an adulterous relationship with PH is insufficient in her application to add the co-respondent.
- Section 54(1)(a) of the LRA:“In its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the following facts, that is to say: …That the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;”
- Adultery is an action by the alleged adulterer or adulteress in consensual sexual intercourse between a married person and a person of an opposite sex, who is not the other’s spouse during the subsistence of the marriage. It is presently not a criminal offence under the Penal Code (see Geeta Bai v Fattu AIR  Madhya Paradesh 133; PP v Lee Fook  7 MLJ; Bastible v Bastible  1 WLR 1648 : “Wilmer LJ: True it is not a criminal offence; it is a matrimonial offence…a high standard of proof is required in order to satisfy the court that the offence has been committed”.
- It is to be noted that:
- Adultery have no relevance in determining division of matrimonial assets (see SS v HJK  1 LNS;  AMR 145).
- The power of the court to award damages in adultery cases against the co-respondent under section 58 of the LRA shall not include any exemplary or punitive element.
- The mere fact of the existence of adultery is not enough to satisfy the breakdown of marriage, it must be intolerable for the petitioner to continuing living with the wrong doer (section 54 (1) (a) of the LRA). KC Vohrah J in Joseph v Jeganathan v Rosaline Joseph  3 MLJ 106, said that the proper test to be adopted is whether a right thinking man in all the circumstances would conclude that the respondent had behaved in such a way that the petitioning spouse could not reasonably be expected to live with the respondent. For it to be established, the evidence that is required should be beyond establishing suspicion and opportunity to commit adultery (see Dr Gurmail Kaur a/p Sadhu Singh v Dr Teh Seong Peng & Anor  11 MLJ 843;  2 CLJ 42; Karen Cheong Yuen Yee v Phua Cheng CHuen  MLJU 291).
- The court will not draw an inference of guilt unless the facts relied on are not reasonably capable of any other explanation (see Wee Hock Guan v Chia Chit neo  1 MLJ 217). It is generally proved by:
- Circumstantial evidence.
- Evidence of non-access and birth of children (in allegations of adultery against women).
- Contracting venereal diseases from external sources; and
- Admissions and confessions by the parties themselves. (See Shireen a/p Chelliah Thiruchelvam v Kanasingam a/l Kandiah  7 MLJ 315; Yew Yin Lai v Teo Meng Hai  8 MLJ 787). In Shudesh Kumar a/l Moti Ram v Kamesh a/p Mangal Sain Kapoor  5 MLJ 82, it was found that the alleged adulteress was not made a party to the proceedings and no allegation of the wife not being in a situation where it was intolerable to live with the petitioner as a consequence of the alleged adultery had been pleaded as required under section 54 (1) (a) of the LRA, and this amounted to the wife shutting herself out from seeking relief under sub-section (1) (a). She had fallen short of the requirement of the law in her pleadings.
11.A party to a divorce alleging adultery is therefore required to:
(a) Make the alleged adulterer or adulteress (as the case may be) a co-respondent in the divorce proceeding (see Avtar Singh v Anita Rani a/p Harjit Singh  MLJU 352); and
(b) The defendant has to file a petition for divorce and cite the alleged adulterer as a co-respondent or if the wife filed for divorce, then the defendant has to cite the adulterer in his answer to the divorce petition as required by section 54 (1)(a) and section 58(1) of the LRA [see Shireen a/p Chelliah Thiruchelvam v Kanasingam a/l Kandiah (supra)]; and
(c) By failing to plead properly, the defaulting party had in fact shut itself out from seeking relief under section 54(1)(a) and section 58(1) of the LRA [see Shudesh Kumar a/l Moti Ram v Kamesh a/p Mangal Sain Kapoor (supra)]
(d) Rule 102 DPMR 1980 stipulate that non-compliance with these rules or any rule in practise in force shall not render the proceedings void unless the court shall so order. Cognisance can be taken that O.1A RC 2012, had prescribed that the court (in administering the Rules) shall always have regard to the overriding interest of justice and not only to the technical compliance which is further solidified with O.2 r.1 RC 2012, which makes non-compliance an irregularity where the court is to have the overriding objective of treating cases justly at the forefront of its consideration.
(e) Rule 16 (1) DPMR 1980 applies to direct that RW is to file an answer to the said petition by PH within 21 days after the time limited for giving notice of the intention to defend to dispute the petition and to cite the alleged adultery and the adulteress in her answer which she had blatantly failed to do so with no lawful excuse (and has not taken any step in the proceedings with knowledge of the irregularity to remedy it) though Rule 16 (2) DPMR 1908 affords some latitude in the matter.
FINDINGS OF THIS COURT
- RW’s Application to add a co-respondent in this single divorce petition filed by PH, is supported by her 3 page affidavit (enclosure 12) in which there are only three paragraphs (5,6 and 7) seeking to add the named person as a co-respondent:
- Para 5 (3 lines) asked for the joinder of the named person as a party; and
- Para 6 (3 lines) merely makes a bare allegation of the alleged adulterous relationship between the named party and PH; and
- Para 7 (3 lines) asked for the joinder of the name party as a co-respondent.
- The said affidavit in support do not particularise the alleged adulterous relationship, do not provide any cogent materials of evidence in which to anchor the said allegation and provide the foundation for the allegation in order to support the said application. RW appears to rely completely on the premise of this bare assertion in the said para 5, 6 and 7 as being enough to satisfy O.15 r.6(1) RC 2012 and Rule 11 and 16(1) DMPR 1980 and section 58(1) of the LRA.
- The case referred to by RW in Ng Ching Choo v Ng Kian Beng (supra) do not at all support her arguments. Umi Kalthum J said at para 3 as follows: “…Dakwaan Responden ini ada dinyatakan didalam Jawapan Responden ke Petisyen Perceraian (“Jawapan Responden”), di dalam perenggan 10. Maka permohonan Responden ini merupakan tindakan lanjutannya untuk membawa masuk pihak ketiga itu sebagai salah satu pihak dalam Petisyen Perceraian Pempetisyen isteri itu…” Clearly RW’s, reliance on this authority in the present circumstances of this case is misplaced. In that case the required procedure had been adhered to by the respondent who had made a reply and included in the reply the issue of adultery (section 58(1)of the LRA) which was then followed up with the application to name the co-respondent in the petition (Rule 11 DMPR 1980) which was noted by the said learned judge to be in line with the respondent’s reply.
- However, such is not the case with RW in our present case. She had failed to file any reply to the said petition as required by the LRA and the DMPR 1980, but erroneously, proceeded to file an application to add a co-respondent and therefore failing to provide the foundation for the present application.
- When RW failed to file any pleading (reply to the petition) to make reference to the alleged adulteress and the fact that RW can no longer tolerate living with PH (section 54 (1) (a) of the LRA), that would amounts to her shutting herself out from seeking relief under sub-section (1) (a). [see Shudesh Kumar a/l Moti Ram v Kamesh a/p Mangal Sain Kapoor (supra)];
- It is trite that in a trial by affidavits when one party makes factual allegations against the other (PH affidavit in reply in enclosure 13), and such allegations is left unanswered or unrebutted by RW, the failure to contradict it is usually treated as an admission of the facts so asserted (see Ng Hee Thong v PBB  2 MLJ 29). In the present case, RW elected not to answer to the averments in enclosure 13. In Syarikat Telekom Malaysia v Business Chinese Directory Sdn Bhd (supra), it was ruled that where the court is expected to make a decision on affidavit evidence without oral evidence or cross examination of the deponents of the affidavits, the court would be critical of the affidavit evidence which must on the face of it be plausible. If the allegations made by one party in the affidavit and those allegations were credibly denied by the other party, in the absence of oral evidence or cross examination, the judge must ignore the disputed allegations and decide the fate of the case by considerations of the undisputed facts.
- The court dismissed RW’s application with cost of RM1,000.00 awarded to PH. Dissatisfied, RW had filed this appeal.
Source: Teoh Cy Kuan (L) v Lee Lai San (P)  MLJU 200 High Court Shah Alam Hayatul Akmal Abdul Aziz J
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