- “1976年法律改革(婚姻与离婚)法令赋予法庭做出裁决赡养费的权利，而不是其他的赔偿。（Rajaseselvi Sinnakaruppan v. Batumalay Jeyaram  4 CLJ 535)
- 除非对方同意，否则法庭没有权利裁决一方必须做出一次性的赔偿 (lump sum payment by way of damages)。法庭只能裁决对方每个月支付赡养费。 (Leow Kooi Wah v. Ng Kok Seng Philip & Anor  1 MLJ 852)
- The Petitioner (Husband) and Respondent (Wife) were married on 14 February 1998 and they have a daughter from their marriage.
- By reason that the marriage has irretrievably broken down as contended by the Petitioner, he therefore filed this Petition (“Petition”). The Petitioner also cited the Co-Respondent as party to the Petition by reason that the Respondent allegedly had an extra-marital affair with Co-Respondent. The Respondent duly filed her affidavit in reply to the Petition.
- In consequence, the Petitioner filed this notice of application (Enclosure 11) to strike out paragraphs 15.4 and 15.5 of the Respondent’s affidavit in reply to the Petitioner’s divorce Petition (“Application”) which in the said paragraphs, she claimed for damages and interest.
Contentions and Findings
- The Petitioner principally contended that the Respondent has no cause of action against him for damages because of hardship due to neglect and breakdown of the marriage as claimed by her. In addition, the nature and the particulars of this claim for damages were not disclosed in the Respondent’s affidavit in reply to the Petition.
- In this regard, the Petitioner relied on the cases of Rajaseselvi Sinnakaruppan v. Batumalay Jeyaram  4 CLJ 535 and First Malaysia Finance Berhad v. Dato’ Mohd Fathi bin Haji Ahmad  3 CLJ 329 in support of his contention that the claim ought to be struck off in the circumstances.
- On the opposite side, the Respondent denied that she didn’t have a cause of action as contended by the Petitioner and explained that the damages sought is actually for maternity expenses incurred and paid by her for the birth of their daughter.
- My powers in relation to matrimonial proceedings are set out in the Law Reform (Marriage & Divorce) Act 1976 (“Act”) and the Divorce and Matrimonial Proceedings Rules 1980 (“Rules”). Accordingly, the oft utilized Order 18 rule 19 as well as Order 92 rule 4 of Rules of Court 2012 on striking out of pleadings and the Court’s inherent jurisdiction to do so are applicable here. In Zaina Abidin bin Hamid@ S. Maniam v. Kerajaan Malaysia  6 MLJ 863 it was held that Order 18 rule 19 apply to an originating summons. In my opinion, the Rules of Court 2012 likewise apply to a divorce petition and the affidavit in reply thereto as if they are pleadings.
- No relief can be claimed for matters not expressly provided for by the Act. Hence in Rajaseselvi Sinnakaruppan v. Batumalay Jeyaram, held in respect of lump sum maintenance payment: “Under s. 77 Law Reform (Marriage and Divorce) Act 1976 the court is empowered to order the payment of maintenance. Again the wording used throughout ss. 77 to 86 is “maintenance” and not damages.
- Justice Mahadev Shankar J in Leow Kooi Wah v. Ng Kok Seng Philip & Anor  1 MLJ 852 in answering the issue of lump sum payment said:
“Section 80 of the Act covers the situation where the parties agree to the payment of a lump sum in cash or kind in lieu of periodic payments. Such agreement is subject to court approval. In the absence of agreement, the court has the power by Section 79 of the Act to order security for maintenance by vesting property in trust to pay such maintenance. The property could be a capital sum in money. Sections 79 and 80 come under the head of ‘Maintenance of spouse’. As for children, Section 93 gives the court power to order maintenance and Section 94 is in the same terms as Section 79.
Upon a careful analysis of the provisions regulating maintenance of spouse it is abundantly clear that the court’s powers is conferred only to awarding maintenance and does not extend to the awarding of lump sum payment by way of damages. Though there are provision for lump sum payment by way of compounding of maintenance nevertheless the compounding can only be made through agreement by the parties and sanctioned by the court – Section 80 of the Act.
Section 79 by itself does not confer power on the court to order lump sum maintenance. It merely empowers the court to secure the whole or any part of the maintenance ordered through vesting of property in trustees and applying the income thereof towards payment of the maintenance ordered.
By reason of the aforesaid it is my conclusion that there is no statutory provision which empowers the court to grant damages as claimed by the petitioner – the provisions in the Act only empowers the court to order periodical payments by way of maintenance.”
- I have likewise held as follows in Aravindraj Chandrasekaran v. Renu Kumari Rai  5 MLRH 197 that the court has no jurisdiction under Section 76 to allow variation of the order sought on divided matrimonial assets.
- As for a claim for damages under the Act, it is only expressly provided in s. 58 of the Act that damages may be claimed against a co-respondent for adultery. The Respondent herein is however not claiming against the Petitioner for adultery. The underlying cause of action has been clarified in the Respondent’s affidavit to be her claim for maternity expenses paid for as spouse during the birth of their daughter in the course of the marriage. Both this cause of action and consequential compensatory damages are undoubtedly not expressly provided for in the Act. That notwithstanding, I am of the opinion that the claims in the divorce proceedings envisaged by the Act are generally future claims in consequence of the divorce such as for maintenance of children and spouse. Therefore past spousal expenses incurred during the course of marriage cannot in principle be claimed in the divorce proceedings. Otherwise there will be multitude of monetary claims for expenses of all kinds including even spousal loan which ought in my view to be claimed by way of civil suit if there is indeed such a contractual loan.
- In the premises, it is my view plain and obvious that the Respondent did not have a reasonable cause of action to claim for damages as claimed in paragraphs 15.4 and 15.5 of the Respondent’s reply affidavit to the Petition.
- It is for the foregoing reasons that I allowed the Application with costs of RM1,500.00.
Source: Fong Chap Hin v Tan Gek Sim & Anor  MLJU 505 Lim Chong Fong J
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