离婚: 申请离婚一方必须证明, 婚姻无法挽留 [2020] MLJU 1127

1. 丈夫提交离婚申请，理由是婚姻已经到了无法被挽回的地步。他表示双方的理念不同，没有共识；而且妻子也不想继续和他住在一起。
2. 妻子则否认与丈夫的婚姻已经无法挽回。 她也否认自己不再想和丈夫继续住在一起。
3. 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。
4. 法庭表示在裁决双方的婚姻是否真的无法被挽留时，会考虑导致婚姻破裂的情况是否符合1976年法律改革婚姻与离婚法令第 54 条文的其中一项标准。
5. 在1976年法律改革婚姻与离婚法令第 54 条文下，法庭必须基于(a)对方出轨通奸 (b)对方拥有无法接受的行为举止、(c) 被对方抛弃超过两年 (d)双方分居超过两年，来判决婚姻是否无法挽留。
6. 法庭也强调，分居两年是从在法庭申请离婚的日期开始倒数的两年算起，而不是从申请离婚的日期到法庭听审那天算起。
7. 由于此案中的丈夫并无法证明导致婚姻破裂的情况符合这四项标准中的其中一项，因此他的离婚申请被法庭驳回。

*详细的案情和判决，请阅读以下的英文版的文章。

INTRODUCTION

1. This is a petition for divorce by Petitioner Husband (“PH”) under section 53 of the Law Reform (Marriage and Divorce) Act 1976 (“LRA”) for his marriage to the Respondent Wife (“RW”) to be dissolved on the grounds that the marriage had irretrievably broken down. He prays that the RW is to return to him two rings, the “thali” and the “thalikodi” chain or in the alternative pay him the sum of RM11,830.00, which he says is the value of the jewellery.
2. PH pleads that the marriage had irretrievably broken down because both he and RW were no longer in the same direction and there no longer exists any understanding between them but he didn’t provide any particulars. Also, because RW no longer wants to live with him. In paragraph 5 of the Petition, PH pleads as follows:

“5. Perkahwinan tersebut telah berpecah belah dan tidak dapat dipulihkan lagi kerana kedua-dua mereka tidak sehaluan. Butir-butir kepecebelahan adalah seperti berikut: (a) Pempetisyen Suami dan Responden Isteri tidak sehaluan lagi dan mereka tidak mempunyai persefahaman yang wujud diantara satu sama lain; dan (b) Responden Isteri tidak ingin lagi tinggal bersama dengan Pempetisyen Suami.”

3. RW denies that her marriage to PH had irretrievably broken down. She also denies that she no longer wants to live with PH.
4. In her cross petition, the RW prays for (i) half share in an apartment in Puchong which is registered in PH’s name and/or half the rental proceeds derived from that property; (ii) spousal maintenance in the sum of RM3,000.00 per month; (iii) that PH return the sum of RM10,400.00 which she had loaned to him; and (iv) that PH return to RW her gold chain weighing 3 grams and her ring weighing 1 gram.

SUMMARY FINDINGS

5. This Court finds based on the evidence before this Court that PH had failed to prove that the circumstances leading or causing the breakdown of the marriage falls within one or more of the four criteria set-out in section 54 of the LRA. For this reason, this Court finds that PH had failed prove that his marriage to RW had irretrievably broken down. Accordingly, PH’s petition for divorce is dismissed.
6. Furthermore, as no decree for the dissolution of the marriage is granted, PH’s application for the return of the rings and the “thali” and the “thalikodi” are dismissed.
7. RW’s applications for the division of matrimonial property and spousal maintenance in her cross-petition are also dismissed.
8. This Court further finds that RW had failed to discharge her burden of proving that the sum of RM4,400.00 given to PH just before the wedding reception was a loan. This Court also finds that RW had failed to prove that she had loaned PH the additional sum of RM6,000.00 or that she left her ring and gold chain in PH’s parents’ house and that he had taken both items. Accordingly, RW’s prayer for the return of the sum of RM10,400.00 and the return of the ring and gold chain are dismissed.

BACKGROUND FACTS

9. PH and RW were married on 22.2.2016. After their marriage, they went to live with PH’s parents at PPR Seri Alam. There are no children to the marriage.
10. In her Answer to the Petition, RW pleads that on 2.4.2017, RW’s parents came to the PH’s parent’s house where both PH and RW were living. PH’s mother suddenly complained to RW’s parents that RW does not do any of the house work. RW says that PH’s mother had never said anything about the housework to RW or told her about it before this. RW says that she told PH’s mother that she will try to do more house work even though she was working at that time in UWL Malaysia Sdn. Bhd.
11. Three days later, on 5.4.2017, at approximately 6.00 am, PH told RW that he will send RW to her parents’ house. RW in her pleadings state that she did not agree to go her parents’ house as she wanted to stay with PH and his family. She then went to work. At about 2.00 pm on the same day, RW went to her parents’ house and informed her father that PH wanted to send RW to her parents’ house. RW says that her father then telephoned PH to ask RW why he took that decision.
12. In his Reply to the Answer to the Petition, PH denies that his mother had complained to RW’s parents that she did not do any other housework. He also denies that RW’s father had called him on 5.4.2017 and puts RW to strict proof. However, he admits that he had told RW at 6.00 am on 5.4.2017 that he was going to send her to her parents’ house.
13. RW in her pleadings state that PH had told her father that he had to take such a decision for the sake of his family and that RW should stay with her parents until his mother calms down. RW says even though she was not happy living separately from PH, for the sake of PH’s family and to placate PH’s mother, she agreed to stay with her parents for four days. On the fourth day, on 9.4.2017, she returned to her parents-in-laws house because PH failed to contact her. Just as RW arrived at the house, PH asked her to take all her things and return to her parents’ house without giving any reasons. RW says that PH’s mother had tidied all of RW’s belongings and asked RW to leave the house. RW pleads that she loves PH and his family dearly but had to leave the house after being chased out of the house by her mother in law.
14. PH does not deny that he had asked RW to take her things and return to her parents’ house but he denies that his mother had packed RW’s things and asked her to leave the house. He says that RW had taken all the things belonging to her including the ring, chain and all the wedding gifts.
15. A few months later on 14.12.2017, RW went to PH’s place of work to ask him to let her live with him and also to ask him for some monies for her living expenses, to pay her bills and to look after her parents. But PH advised her that the position in his house was still not calm and asked her to return to her parents’ house and he promised to contact her.

HAS THE MARRIAGE IRRETRIEVABLY BROKEN DOWN?

16. In deciding on PH’s petition for divorce, the first issue for this Court’s determination is whether the marriage between PH and RW has irretrievably broken down as PH claims but denied by RW.
17. It is trite law that the sole ground for divorce under section 53 of the LRA is that the marriage had irretrievably broken down. In Mohan Raj St Patmanathan v Prema Rani a/p Kandiah Ponnampalam & Anor [2005] 4 MLJ 444, “(6) The sole ground for divorce under s.53 of the Law Reform (Marriage & Divorce) Act 1976 (‘LRA’) is that the marriage has irretrievably broken down. Section 54 of the LRA enjoins the court (to enquire so far as it reasonably can) to have regard to one or more of the four (4) facts alleged as causing or leading to the breakdown of the marriage, namely, adultery (s 54(1)(a)), unreasonable behaviour (s 54(1)(b)), desertion (s 54(1)(c)) and living apart for at least two years (s 54(1)(d)).” 申请离婚，婚姻必须破裂，无法挽留。法庭必须基于(a)对方出轨通奸 (b)对方拥有无法接受的举止行为、(b) 被对方抛弃超过两年 (c) 分居超过两年，来判决婚姻是否无法挽留。
18. Section 53 of the LRA provides as follows: “(1) Either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down. (2) The court hearing such petition shall, 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.”
19. Section 54(1) of the LRA provides that 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 of the following facts: “(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (d) 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.”
20. Pursuant to section 54(2) of the LRA, “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.”
21. As the petitioner for a divorce under section 53 of the LRA, section 101(1) of the Evidence Act 1950 requires PH to prove that his marriage to RW had irretrievably broken down and that the circumstances leading or causing the breakdown in the marriage falls within one or more of the 4 criteria set-out in section 54 of the LRA. Section 101(1) of the Evidence Act 1950 states as follows: “101 Burden of proof (1) Whoever desires any court to give judgment as to any legal right or liability, dependent on the existence of facts which he asserts, must prove that those facts exist. (2) When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on that person.”
22. Pursuant to section 101(2) of the Evidence Act 1950, the burden of proof is on PH to prove the existence of the facts he asserts. This principle was explained by Terrell Ag CJ in Selvaduray v Chinniah [1939] MLJ 253: “The burden of proof under section 102 of the Evidence Enactment is upon the person who would fail if no evidence at all were given on either side, and accordingly the plaintiff must establish his case. If he fails to do so, it will not avail him to turn round and say that the defendant has not established his. The defendant can say “It is wholly immaterial whether I prove my case or not. You have not proved yours” (see the judgment of the Privy Council in Raja Chandranath Roy v Ramjai Mazumdar 6 Bengal Law Reports p 303).”
23. The Court of Appeal in The Carbon Co Sdn Bhd & Anor v Ng Lee Hoon (conducting under ‘Forest Wood Flooring’) [2017] 4 MLJ 791 stated this fundamental principle of evidence as follows: “[49] The law on the burden of proof is so settled. Pursuant to s 101(1) of the Evidence Act 1950, a party who desires the court to give judgment in its favour as to the legal right or liability bears the burden to prove its case. The burden of proof on that party is twofold, firstly the burden of establishing a case and secondly the burden of introducing evidence. This burden lies on the party throughout the case and the standard of proof is on the balance of probabilities. Once that party has discharged its evidential burden of proof then the burden would then shift to its adversary. If a party has failed to discharge its burden of proof on the standard required by the law, his adversary does not bear the burden to adduce any evidence.”
24. The evidence shows that PH had asked RW to leave his parents’ house three days after the incident which RW claims that PH’s mother complained to RW’s parents that she did not help with the housework. While PH agrees that he had told RW that he was going to send her back to her parent’s house, he denies it was because his mother had complained to RW’s parents that she did not do any housework.
25. PH and RW from the beginning of their marriage on 22.2.2016 until she left the house on 9.4.2017 (either because she was chased out by PH and/or his mother as she claims or whether she had left on her own accord as he claims) had lived in his parents’ house in the PPR Seri Alam.
26. RW clearly does not want a divorce. When asked by PH’s counsel during cross-examination, RW testified that she does not want a divorce. She said that she does not want to enlarge this issue because it is a family issue and that she wants to settle the issue with PH but he does not want to.
27. None of the reasons given by PH that the marriage had broken down, namely that he and RW were no longer in the same direction and there no longer exists any understanding between them or that RW no longer wants to live with him, falls within any one of the four criteria stipulated in section 54(1)(a) to (d) of the LRA as causing or leading to the breakdown of the marriage, which this Court must have regard to. 男方在申请离婚文件里，没有清楚列出双方没有共同理念和共识，所以不符合离婚法律里设下的特定要求。
28. This Court finds that it is clear from the facts of the case based on the pleadings and the testimonies of both PH and RW that the breakdown of the marriage was not caused by any of the criteria listed in section 54(1) of the LRA.

Parties Separated for at least Two Years (Calculation on Period of Separation)

29. Learned counsel for PH submits that the marriage had irretrievably broken down because the trial of this petition took place more than 2 years after the RW left PH on 9.4.2017, and accordingly falls within the criteria in section 54(1)(d) of the LRA. 太太在09.04.2017离开丈夫，丈夫在11/2018就申请离婚。分居两年是从在法庭申请离婚的日期开始倒数2年，而不是从申请离婚的日期到法庭听审那天。
30. This appears to be a misreading of the provision of section 54(1)(d) of the LRA by learned counsel for PH. Paragraph (d) of section 54(1) of the LRA states that one of the facts in its inquiry into the breakdown of the marriage, is 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.” It is not 2 years preceding the date of the trial as submitted by learned counsel for PH. In the case of Mohan Raj St Patmanathan v Prema Rani a/p Kandiah Ponnampalam & Anor (supra), the parties had lived apart for a continuous period years since 23.2.1999 before the petition was presented in 2001 – it was not 2 years from the date they separated until the date of trial in 2004.

DECISION

31. PH did not particularise in his pleadings nor did he provide any evidence that the circumstances leading or causing the breakdown in his marriage to RW falls within one or more of the four criteria set-out in section 54 of the LRA. Accordingly, this Court finds that PH had failed to discharge the burden of proving that his marriage to RW has irretrievably broken down.
32. Therefore, it is not just and reasonable for this Court to grant a decree of divorce for the dissolution of PH and RW’s marriage. Accordingly, PH’s prayer for his marriage to RW to be dissolved is dismissed.
33. As no decree for the dissolution of the marriage is granted, PH’s application for the return of the rings, and the “thali” and the “thalikodi” chain presented to RW during their wedding is accordingly dismissed.
34. With regards to RW’s application for division of matrimonial property in her cross-petition, section 76(1) of the LRA states that: “(1) The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.”
35. The Federal Court in Manokaram Subramaniam v Ranjid Kaur Nata Singh [2009] 1 MLJ 21; [2008] 6 AMR 177; [2008] 6 CLJ 209 held that pursuant to section 76 of the LRA, Courts only have the power to make an order for division of matrimonial assets when granting a decree of divorce or judicial separation. Since no decree of divorce is granted in this petition, this Court cannot make an order for the division of matrimonial property. 由于丈夫的离婚申请被推翻，离婚法庭也没有权限判有关婚姻产业该如何分配。
36. As for RW’s claim for spousal maintenance in her cross-petition, the Court’s power to grant maintenance of spouse is derived under section 77(1)(a) and (b) of the LRA, which provides that the Court may order a man to pay maintenance to his wife or former wife: “(a) during the course of any matrimonial proceedings; (b) when granting or subsequent to the grant of a decree of divorce or judicial separation;”
37. Since this Court did not grant a decree of divorce, it is not empowered to order PH to pay maintenance to RW under section 77 of the LRA.
38. Accordingly, for these reasons, as no decree for the dissolution of the marriage is granted, RW’s applications for division of matrimonial property and spousal maintenance in her cross-petition are dismissed.
39. With regards to RW’s claim for the return of the sum of RM10,400.00 she claims to have loaned PH and the return of her ring and gold chain, this Court finds that RW had failed to discharge her burden of proving that the sum of RM10,400.00 given to PH just before the wedding reception was a loan. This Court also finds that RW had failed to prove that she had loaned PH the additional sum of RM6,000.00 or that she left her ring and gold chain in PH’s parents house and that he had taken both items. Accordingly, RW’s prayer for the return of the sum of RM10,400.00 and the return of the ring and gold chain are dismissed.
40. There is no order as to costs.

Source: Daniel Sarravana a/l Sandanasamy v Malathi a/p Manikam [2020] MLJU 1127. KL HC. Faizah Jamaludin J

Law Reform (Marriage and Divorce) Act 1976

54.Proof of breakdown

(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 one or more of the following facts, that is to say:

(a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent;
(b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the
respondent;
(c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition;
(d) 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.

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