离婚: 申请离婚一方必须证明, 婚姻无法挽留 [1998] 5 CLJ 731

 

案件：

1. 丈夫与妻子在1976年根据印度教的结婚仪式结婚。他们有两名儿子。
2. 丈夫之后提交离婚申请。双方在之前已经分开生活了至少两年，婚姻已经到了无法被挽回的地步。
3. 妻子则表示丈夫于虽然1986年离开了她，但她仍然爱着他；因此不应该解除双方的婚姻关系。

法庭判决：

1. 离婚除了分居，还要证明婚姻已无法挽留。申请离婚一方必须证明婚姻已经破裂，双方并不可能修复和好。Bhanu Sekaramani v Nagamma (1991) 3 MLJ 34
2. 1976年法律改革婚姻与离婚法令第 53 条文（以婚姻破裂为唯一的离婚理由）明确规定，离婚唯一的理由是婚姻已到不可挽回的地步。
3. 即使妻子声称仍爱丈夫，但她也承认已经与丈夫分开生活了十多年。妻子单方面的爱无法改变他们的婚姻已经是无法挽回的事实。
4. 法庭表示，仅保留婚姻，但又没有合理的前景来维持婚姻，是没有意义的。法庭最终批准了丈夫的离婚申请。

 

 

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1. The petitioner (husband) and the respondent (wife) were married according to Hindu marriage rites at the Chettiar Temple in February 1976.
2. Immediately after the marriage they lived in a rented house at Petaling Jaya, until 26 December 1986 when they lived in separate houses.
3. There were two children of the marriage, viz two boys born on 5 October 1977 and 4 November 1982, respectively.
4. The husband in his petition alleged that the marriage had broken down irretrievably and that the parties to the marriage had lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.
5. The husband prayed that custody, care, control and guardianship of the second son be given to him with reasonable access to the wife. He also agreed to maintain the first son until he completes his tertiary education.
6. The wife in her answer stated, inter alia, that the husband had left her in December 1986 without any reason and that she still loves him and so the marriage should not be dissolved. She prayed that the custody, care and control of the second son be given to her with reasonable access to the husband.

Facts

7. The marriage at the beginning was normal except squabbles. There were no financial difficulties as the husband was a Division One officer in Federal Agricultural Marketing Authority (FAMA) and she was attached to Radio Television Malaysia (RTM). Sometime in 1983, he signed up for the University of London External Programme LL.B. course, studied on his own and attended crash-course programmes. The family environment was initially good. Later, the wife agreed to her own niece coming to live with the wife. Her niece studied law full-time and she became a companion to the husband. Both these students got on very well. During this time, the wife was unhappy as she felt neglected. The husband was in full-swing studying together with her niece. The wife missed everything from her husband as a result of which she asked for more attention from him since the only time they met was after midnight. Meanwhile, the wife as an employee of RTM had irregular working time, from 5am to 3pm and came home after 6pm or 7pm. Before long, their relationship turned sour and serious arguments ensued, culminating in the husband leaving the house on 26 December 1986. After the husband left, the wife and her relatives appealed to him to come back, but the husband was very reluctant to come back saying that he wanted to study law and not be disturbed.

Ground For Divorce

8. It is clear that the husband finds support in Section 54(1)(d) of the Law Reform (Marriage and Divorce) Act 1976 (“the Act”) to establish the ground for divorce ie, that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition. That being the case, Section 53(2) of the Act requires the court hearing the divorce petition to, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it just and reasonable to do so, make a decree for its dissolution. The court shall also have regard to one or more of the four facts stated in Section 54(1), which lays down the parameter of what is ‘just and reasonable” in the following words:

In considering whether it would be just and reasonable to make a decree the Court shall consider all the circumstances, including the conduct of the parties and how the interests of any child or children of the marriage or of either party may be affected if the marriage is dissolved and it may make a decree nisi subject to such terms and conditions as the Court may think fit to attach, but if it should appear to the Court that in all the circumstances it would be wrong to dissolve the marriage it shall dismiss the petition.

9. The court in inquiring into the facts alleged as causing or leading to the breakdown of the marriage, may make a decree of dissolution if, but only if, it is satisfied that the circumstances make it just and reasonable to do so.
10. The sole ground upon which a decree of dissolution of marriage may be sought is that the marriage has broken down irretrievably: Section 53(1). 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 the fact that the parties to the marriage have lived apart for a continuous period of two years immediately preceding the presentation of the petition: Section 54(1)(d). This is the sole fact and circumstances relied upon by the husband in para. 9 of his petition.
11. In Tan Keok Yin v. Cheah Saw Hong [1991] 2 MLJ 267: “Upon a careful scrutiny of s. 54 of our Law Reform Act there are two striking features of the said section that need to be taken into consideration. Firstly, upon proof on the fact that the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, the petitioner has prima facie proved that the marriage has irretrievably broken down, if, but only if, the respondent is not contesting it or has no answer as to why the respondent would allow the petitioner to live separately from her or him as the case may be. Secondly, when the respondent is contesting the petition and is able to put up a reasonable answer that notwithstanding the two-year separation the marriage has not irretrievably broken down then the court must, pursuant to Section 54(2), consider all the circumstances including the conduct of the parties and the interests of the children of the marriage before deciding whether the marriage should be dissolved. (See also Bhanu Sekaramani v. Nagamma [1991] 3 MLJ 34).
12. It is eminently clear that s. 53(1) of the Act has succinctly established that there is only one ground for divorce under the Act ie, that the marriage has irretrievably broken down: See also Lina v. Ngu Chuiong [Chong Oi Khium Irene, co-respondent] [1994] 2 MLJ 139.
13. In Grenfell v. Grenfell [1978] 1 All ER 561: “There is no point, as I see it, in a case like this, in conducting an enquiry into behaviour merely to satisfy feeling, however genuinely and sincerely held by one or the other of the parties. To do so would be a waste of time of the court and, in any event, would be running, as I think, counter to the general policy or philosophy of the divorce legislation as it stands today. The purpose of Parliament was to ensure that where a marriage has irretrievably broken down, it shall be dissolved as quickly and as painlessly as possible under the Act, and attempts to recriminate in the manner in which the wife in this case appears to wish to do should be, in my judgment, firmly discouraged.”
14. The wife asserts that she still loves the husband while she also agrees that she had lived separately for more than ten years from the husband. This assertion does not alter the fact that the marriage has irretrievably broken down and her unilateral love alone does not provide an answer to the divorce petition.
15. In Cheong Kim Seah v. Lim Poh Choo [1993] 1 SLR 172: “A respondent’s desire to maintain a marriage when the fact of separation is proved or as in this case is admitted, thus raising the presumption that the marriage has irretrievably broken down cannot in my view be rebutted by professions of love and care and assertions that she provided emotional support throughout the marriage. Nor can it support the statutory defence provided by s. 88(4) of the Charter having regard to the policy and philosophy of legislation already discussed.”
16. On the facts of the case before me, I do not see how any useful purpose can ever be served by keeping the marriage on paper only without any reasonable prospect whatsoever of maintaining the marriage as a meaningful union in practice. It is no more than a facade, an illusory and imaginary bubble of theoretical relationship, devoid of any reality in matrimony.
17. In Moses v. Moses [1968] 1 MLJ 96: “where the marriage bond has become no more than a detested shackle after the parties have been separated for not less than seven years, it is in the public interest that the tie should be severed(切断).”
18. The respondent’s unilateral profession of continual love for the petitioner was not an answer to the petition, nor could it rebut the fact that the marriage had irretrievably broken down within the meaning of ss. 53(1) and 54(1)(d) of the Law Reform (Marriage and Divorce) Act 1976.

Conclusion

18. On the foregoing grounds, I grant an order dissolving the marriage based on the divorce petition herein, the decree nisi to be made absolute three months from the date herein. Each party to bear his/her down costs. Custody of children and other ancillary relief shall be dealt with upon the application by the party concerned.

 

Source: Saravanan A Narayanasamy v. Meenachee Subramaniam [1998] 5 CLJ 731. HC Shah Alam. Low Hop Bing J.

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