- 妻子在法庭上要求撤销丈夫的离婚申请，理由是不符合1976年法律改革(婚姻与离婚法)第106(1)条文 。妻子表示双方并没有在提出离婚申请之前，出席婚姻辅导。根据1976年法律改革（婚姻与离婚法） 的第106(1)条文，一方是可以在以下的情况，申请豁免婚姻辅导：
- 另一方患有精神病; 或者
- 若另一半通奸是属于特殊状况，双方则不需进行婚姻辅导，可以直接申请离婚。Bowman v Bowman  2 All ER 127 and Hillier v Hillier and Latham  2 All ER 261
- 法庭引用C v A的案例表示，若双方已经没有联系20年，孩子已经是成人，没有再对婚姻有牵挂，法庭也可允许双方不需要先进行婚姻辅导，而能直接申请离婚。
- The petitioner (‘the husband’) and the respondent (‘the wife’) were married on 11.07.2008 and have a child, born on 07.05.2012. After the marriage they lived at their matrimonial home at Casmila Tower Condominium, Batu Caves, Selangor. The respondent conceived their child. Thereafter, the respondent had requested for a transfer from Kuala Lumpur to Penang. The respondent left their matrimonial home during her pregnancy and resided in Penang until now. The petitioner petitioned for dissolution of the marriage with the respondent on 15.04.2014 (‘the petition’).
- The respondent by way of notice of application dated 08.05.2014 applied for the petition to be struck off under O 18 r 19(1)(a) or (d) of the Rules of Court 2012 on the ground that the cause of action was unreasonable as the petition is said to be an abuse of process of the court.
CASE FOR THE RESPONDENT
- The respondent objected to the petition on the ground that:
- the respondent through her solicitor had written in to the solicitor for the petitioner stating that she never wanted to have the marriage dissolved as she would want to discuss their marital problems. Unfortunately, there was no reply by the petitioner.
- the petition is wrong in law as it did not comply with the requirement of Section 106(1) of the Act due to the fact that there was no attempt of reconciliation before a marriage tribunal. The requirement for any matrimonial difficulty to be first referred to a conciliatory body before a divorce petition be made is mandatory.
- Section 106 Requirement of reference to conciliatory body before petition for divorce
(1) No person shall petition for divorce, except under sections 51 and 52, unless he or she has first referred the matrimonialdifficulty to a conciliatory body and that body has certified that it has failed to reconcile the parties: Provided that this requirement shall not apply in any case —
(i) where the petitioner alleges that he or she has been deserted by and does not know the whereabouts of his or her spouse;
(ii) where the respondent is residing abroad and it is unlikely that he or she will enter the jurisdiction within six months next ensuing after the date of the petition;
(iii) where the respondent has been required to appear beforea conciliatory body and has wilfully failed to attend;
(iv) where the respondent is imprisoned for a term of five years or more;
(v) where the petitioner alleges that the respondent is suffering from incurable mental illness; or
(vi) where the court is satisfied that there are exceptional circumstances which make reference to a conciliatory body impracticable.
- The matter before this court does not fall under the exception of the said Section 106 as the matrimonial difficulty between both parties are normal problems in many marriages which can be resolved by a conciliatory body. From the petitioner’s pleadings it can be gleaned that the petitioner are looking for the fastest way to end the marriage with the respondent.
- As the cause of action by the petitioner is made without first referring to the marriage tribunal, it is an abuse process of the court.
- The said cause of action can only arise once a certificate that the conciliatory body is unable to resolve the matrimonial difficulty is issued.
- In the interest of justice, the respondent must be given the opportunity to reconcile with the petitioner through the conciliatory body. Reference to the marriage tribunal according to the respondent’s counsel will not cause any injustice or abuse process of the court.
- If the conciliation process in the tribunal failed it will strengthened the reasons that the marriage has irretrievably broken down.
- The petitioner’s petition and supporting affidavit failed to disclose what steps had been taken to effect a reconciliation pursuant to Section 57(2) of the Act.
CASE FOR THE PETITIONER
- The petitioner submitted that there are exceptional circumstances as provided in s 106(1) of the Act:
- Since the respondent left their matrimonial home and lived in Penang, the respondent had never returned to him.
- The petitioner tried to reconcile but due to the egoistic behaviour of the respondent, the petitioner is disheartened and refuse to accept the respondent anymore.
- The petitioner claimed that the respondent frequently caused unnecessary disputes and had once attempted to humiliate the petitioner at his work place.
- The petitioner admitted that he used to frequently sleep at the hospital’s hostel where he is working and refused to return home as the respondent’s behaviour was not to his likings.
- It was the respondent’s actions or inactions that made their marriage a failure.
- The respondent refused to refer their matrimonial difficulty to the conciliatory body for it will only be a waste of time and futile.
- Further, the petitioner is tight up with his work commitment at the National Heart Institute in Kuala Lumpur and presently is furthering his studies. The petitioner would want the divorce soonest as he would like to concentrate on pursuing his ambition to further his studies.
- He could not see his child for a longer time due to his busy schedules and the obstacles caused by the respondent herself.
- In short, the marriage has irretrievably broken down, the petitioner no longer wants to be with the respondent and reference to a marriage tribunal would be impractical.
FINDING OF THE COURT
- The court is now put to consider one main issue ie whether there are exceptional circumstances which make reference to a conciliatory body impracticable thus exempting the petitioner from referring his matrimonial difficulty to a conciliatory body.
- This court is mindful that the purpose of Section 106 of the Act is to promote reconciliation so as to control impetuous and hasty resort by spouses to end their marriage. 婚姻法令第106条文是提倡离婚前必须先进行婚姻辅导，这是为了减低配偶冲动和仓促地结束他们的婚姻。
- In the case of C v A  6 MLJ 222, RK Nathan J laid down the background of the reason for the introduction of s 106
“Reason for the introduction of s 106
The Royal Commission
A Royal Commission was set up before the amendment of the Act to look into various issues relating to the marriage and divorce laws of non-Muslims. Its report called ‘Report of the Royal Commission on Non-Muslim Marriages and Divorce Laws’ was dated 15 November 1971 (‘the report’). I shall confine my review of the report to issues related to s 106 of the Act. Whilst recommending that marriages ought to be dissolved under circumstances which make it ‘just and reasonable’ and that enquiries should be made by the court into facts to satisfy itself that the marriage had indeed irretrievably broken down, the report also recommended: that attempts at reconciliation be made before the filing of any petition for divorce and that proceedings in court may be adjourned at any stage and for such period as the court thinks fit, to encourage reconciliation; In relation to the reconciliation aspect of its report the commission was of the view that since in Christian churches and communal bodies among Chinese and Hindus there are respected elders whose words are listened to with respect, their services together with that of justices of peace may be utilised for the setting up of conciliation councils.”
“Intention of s 106
It is obvious that the purpose and intent of s 106 is to reconcile parties where there is a reasonable probability of a reconciliation. In fact s 106(5)(b) of the Act provides that together with the certificate it issues, the conciliatory body can make recommendations regarding maintenance, division of matrimonial property and the custody of the minor children, if any, of the marriage. In other words it is apparent that the elders of the religion, community, clan or association (see s 106(3)(a) of the Act) who might be even familiar with the parties and their situation in life could therefore make recommendation for the preservation of the property and the welfare of the minor children. I have also to consider if there is any wilful refusal to refer to a conciliatory body. I have also to consider whether the parties are young and whether it is appropriate to write off their prospects of reconciliation as hopeless and whether the guidance of the conciliatory body which oft times has proven valuable in promoting a stable and satisfactory reconciliation, would prove beneficial to this case.”
What then constitute ‘exceptional circumstances’?
- This court is guided by reported cases and realised that the decision on what is or is not exceptional circumstances is subjective and a judge at the first instance should make a subjective evaluation and decide whether the circumstances are out of the ordinary.
- In Bowman v Bowman  2 All ER 127 and Hillier v Hillier and Latham  2 All ER 261 highlighted the instances of adultery committed by one parties in the suits to be circumstances out of the ordinary that justify the termination of the marriage. 另一半通奸是属于特殊状况，双方不需进行婚姻辅导，可以直接申请离婚。
- C v A is also a case which warrants the marriage of the parties to be dissolved. In that case, the very fact that both parties had lived apart with no contact with one another for well over 20 years is considered to be prima facie evidence that each of them is entitled to a dissolution of the marriage, attempts were made by the petitioner’s relatives without success, and that there are no infant children (age 29 and 25) involved to motivate a desire for the continuance of the marriage. The Court found that all these factors clearly show exceptional circumstances, falling within the proviso (vi) to s 106 of the Act. 法庭考量到双方已经没有联系20年，他们的孩子已经是成人，没有再对婚姻有牵挂，所以法庭允许双方不需要先进行婚姻辅导，而能直接申请离婚。
- This court is of the considered view that the petitioner has failed to establish the special circumstances arising from his marital difficulties that warrant this court to grant the divorce. Even though the petitioner claimed that any effort to refer their marital difficulties to a conciliatory body would be a futile effort and a waste of time, this court is of the opposite view. Reference to a conciliatory body would not be impracticable as the respondent still wants an opportunity to be given to her to reconcile. True that the petitioner is no longer interested with the marriage but, that stand taken by the petitioner should not be a reason to deprive the respondent from the opportunity to be heard as to how she wants to reconcile before the conciliatory body. 虽然男方很坚决要离婚，坚持婚姻辅导是浪费时间，但是，法庭认为，女方既然坚持要求尝试复合的机会，法庭就不应该抹夺女方要求婚姻辅导的权利。
- This court further finds that there was a time when both parties did reconcile through the assistance of the respondent’s brother and this, the court is of the view that by referring to a conciliatory body, family members of both parties could be invited to assist in solving their marital difficulties. As it is, nowhere in the petitioner’s affidavit revealed that he had consulted or sought the assistance of his family members or anyone to assist him in solving his marital difficulties or to reconcile. The opportunity must be afforded to both family members to advise them accordingly and this court is of the view that by referring to the conciliatory body, that opportunity can be given. 离婚申请书里必须注明双方已经尝试婚姻和解和注明如何尝试和解。男方在抗辩的当儿并没有提起他本身有经过亲戚朋友帮忙婚姻和解。法庭觉得双方的家庭成员可以帮忙双方和解。所以婚姻辅导就是一个好机会，让双方的家庭成员出席，并帮忙和解。
- This court is of the view that both of them can still sit and discuss their marital difficulties before a conciliatory body and state their views and suggestions as to how to solve their marital problems amicably and professionally. If they still fail to come to a settlement, then and only then can it be said that their marriage has irretrievably broken down. The conciliatory body can then issue a certificate to state as such. 法庭认为双方能在婚姻辅导的过程中说出双方的婚姻问题，让他们说出他们的看法和建议。如果夫妇还是没有办法解决他们的婚姻问题，这样才能总结他们的婚姻的确无法挽留，婚姻辅导中心会发一张证书确认此事。这样，这对夫妇才能正式申请单方面离婚。
- The most important consideration that this court took into account is that apart from the fact that the respondent has the desire to reconcile, there is the welfare of a young child involve in this matter. Both parties have a young child. This fact should be the primary concern of both petitioner and respondent. The child could also be a contributing factor to a settlement of the marital dispute. It may not be, but nevertheless the opportunity to overcome their marital difficulties must be given in the interest of justice to all parties involve, not only to the petitioner albeit his refusal, but at the very least to the respondent and their young child.
- I therefore allow the application filed by the respondent and that the petition filed by the petitioner dated 15.04.2014 be struck off. Cost of RM5000 to be borne by the petitioner.
Source: P v S  9 MLJ 400. High Court Ipoh. Noorin Badaruddin JC.
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