PEMPETISYEN KUMAR A/L SUBRAMANIAM @ BALASUBRAMANIAM Punitha A/p Thiagarajan

WA-33-451-08/2019 WA-33-451-08/2019 Kand. 102 11 April 2023 ……………………………………………………………………………………………… 11/04/2023 13:26:39 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA DIVORCE PETITION NO: WA-33-451-08/2019 Dalam perkara seksyen-seksyen 53, 54(1)(b),76, 77, 88, 93 Akta Membaharui Undang-Undang (Perkahwinan dan Perceraian) 1976 BETWEEN KUMAR A/L SUBRAMANIAM @ BALASUBRAMANIAM …PETITIONER AND PUNITHA A/P THIAGARAJAN …RESPONDENT GROUNDS OF JUDGMENT ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 1 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… Introduction [1] This was a divorce petition filed by the Petitioner husband and cross- petition filed by the Respondent wife. Most issues had already been addressed and terms had been agreed to pursuant to the consent order dated 21 February 2022. Hence, the only issue that was left for this Court to address was the division of matrimonial assets. The factual background [2] The Petitioner and Respondent (collectively, “the parties”), aged 48 and 43 respectively at the time of the hearing, were married in December 2003, and are blessed with five children, born within 2005 and 2015. [3] The Petitioner presently works as a School Improvement Specialist Coach (“SISC”) Officer in the Education Office Song District in Sarawak, earning a monthly salary of about MYR9,600, whilst the Respondent, at the beginning of the marriage earned MYR1,688, and by the time the marriage had broken down, she was being paid a monthly salary of MYR5,000, as a teacher. [4] After more than 15 years, the marriage became impossible to sustain due to the usual ‘wear and tear’, compounded by increasing problems including interference from members of the Petitioner’s family. This had led to friction and several arguments and altercations between the Respondent and Petitioner, as well as his mother. ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 2 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… [5] In August 2019, the Petitioner filed a divorce petition (“the Petition”), whilst the Respondent cross-petitioned in October 2019 (“the Cross- Petition”). Since the only issue was the division of the matrimonial assets, there was no reason for this Court to enquire into the reasons for the breakdown, save to ensure that the marriage had in fact irretrievably broken down. [6] The matrimonial assets were divided accordingly for the following reasons. Contentions, evaluation, and findings Division of matrimonial assets [7] The claims that the parties had against each other, were in relation to the following properties: a) A house in Cheras, Kuala Lumpur known as the Damai Jasa Property; b) A house in Cheras, Kuala Lumpur known as the Damai Citra Property; c) A flat in Ampang known as the Lembah Maju Property; and d) A flat in Kepong known as the PPA1M Property. [8] The task of dividing the matrimonial assets is prescribed by section 76 of the Law Reform (Marriage and Divorce) Act 1976 (“Law Reform (Marriage and Divorce) Act”), which reads: ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 3 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… Section 76 – Power of court to order division of matrimonial assets (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. (2) In exercising the power conferred by subsection (1) the court shall have regard to- (a) the extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family; (aa) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family; (b) any debts owing by either party which were contracted for their joint benefit; (c) the needs of the minor children, if any, of the marriage; (d) the duration of the marriage, and subject to those considerations, the court shall incline towards equality of division. … (5) For the purposes of this section, references to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts. [Emphasis added] [9] Section 76 of the Law Reform (Marriage and Divorce) Act requires the Court, in ordering the division of matrimonial assets, to consider ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 4 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… several factors. Regardless of who acquired the property, the contributions of each party have to be considered, whether monetary or otherwise. The Court also has to consider the debts owed by either party which were contracted for their joint benefit. Division of Damai Jasa Property [10] The Damai Jasa Property was occupied by the parties from 2008 until 2014, before it was sold in 2015 for approximately MYR800,000. Whilst the Petitioner submitted that the proceeds of sale of the Damai Jasa Property were utilised for the purchase of the Damai Citra Property at the price of MYR970,888, and for household expenses, the Respondent contended that she was entitled to MYR200,000, as she claimed that the Petitioner had invested MYR400,000 of the proceeds of sale of the Damai Jasa Property in RHB Investment Fund, and was enjoying the dividends. [11] I found the Respondent’s submission untenable for the simple reason that the Damai Jasa Property did not exist any longer, and as such, it was not a matrimonial asset that should even be considered in the context of section 76 of the Law Reform (Marriage and Divorce) Act. I drew guidance from the Court of Appeal case of Sivanes Rajaratnam v Usha Rani Subramaniam [2002] 1 MLRA 178, where it was stated by Abdul Hamid Mohamad JCA (as he then was), in the following passage: From the authorities referred to us by both learned counsel and from my research, as far as I can ascertain, I am unable to find any decided case in Malaysia and Singapore to support an accounting of all the assets acquired or improved during the marriage and the income thereof and the determination of who had benefitted more or less and awarding a shortfall to the party who is found to have benefitted less. All the cases simply talk about ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 5 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… the "division" of the matrimonial assets, which necessarily means the existing assets at the time of the divorce. Of course, the question of the size and nature of each spouse's contribution and who has enjoyed the property to the exclusion of the other (for example, as in this case, where only one party lived at the Crescent Court Apartment) and the reasons why, are relevant in determining the portion that each spouse should get, but not, in my view, for the purpose of calculating either spouse's share of past income. [Emphasis added] [12] The Respondent’s claim for half of the proceeds of sale of the Damai Jasa Property was, therefore, baseless. [13] In any event, although the Petitioner had admitted that MYR400,000 from the proceeds of sale of the Damai Jasa Property was invested in the RHB Investment Fund, he maintained that whatever dividends earned from such investment were utilised for household expenses and loan repayments for the subsequent purchase of the Damai Citra Property in 2012, for the benefit of both parties, and their children. [14] It was also crucial to note the undisputed fact that the Respondent had, from the time of the marriage until 2010, earned between MYR1,600 and MYR2,000 as an employee of ING Insurance. Throughout 2011, she attended a teachers’ training course which earned her only an allowance of MYR1,000. These facts fortified the Petitioner’s contention that it was he who had financially supported the family during the time when the parties had resided in the Damai Jasa Property. It was, therefore, extremely inequitable for the Respondent now to make a claim to the Damai Jasa Property. ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 6 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… Division of Damai Citra Property [15] Although the purchase of the Damai Citra Property was in 2012, payments for the same were staggered, and completion was 24 months from the date of signing of the sale and purchase of such property. The Respondent’s claim to the Damai Citra Property was for 50% of the proceeds of sale. [16] The Court was informed that the Damai Citra Property, which was the matrimonial home of the parties from 2014 until 2019, is in the midst of foreclosure proceedings, as the Petitioner, who was the sole borrower for the same, was in default, as he had failed to make the monthly loan repayments of MYR5,100. [17] It was undisputed that when the parties had lived in the Damai Citra Property, there were several movements of money between the Respondent, Petitioner and the Petitioner’s mother for various purposes, including household expenses and loan repayments for the Damai Citra Property. Although the Respondent claimed that she had settled all debts incurred, including loan repayments. as a result of borrowing from the Petitioner’s mother, this fact remained disputed by the Petitioner and his mother who was called as a witness on his behalf. [18] The fact of the matter is that when moneys are given and received amongst family members, which in some cases include extended members, the lack of accounting of the same, which is the norm, becomes an issue that is most difficult to resolve. On this point, I drew guidance from the Court of Appeal case of Sivanes Rajaratnam v Usha Rani Subramaniam, where Abdul Hamid Mohamad JCA (as he then ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 7 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… was) explained, in the following passages, the difficulty of keeping track in a marriage, an accounting of all the expenses pursuant to the household and family matters: From the authorities referred to us by both learned counsel and from my research, as far as I can ascertain, I am unable to find any decided case in Malaysia and Singapore to support an accounting of all the assets acquired or improved during the marriage and the income thereof and the determination of who had benefitted more or less and awarding a shortfall to the party who is found to have benefitted less. All the cases simply talk about the "division" of the matrimonial assets, which necessarily means the existing assets at the time of the divorce. Of course, the question of the size and nature of each spouse's contribution and who has enjoyed the property to the exclusion of the other (for example, as in this case, where only one party lived at the Crescent Court Apartment) and the reasons why, are relevant in determining the portion that each spouse should get, but not, in my view, for the purpose of calculating either spouse's share of past income. This view, in my opinion, is consistent with the wording and spirit of s. 76. That section talks of "division" of assets acquired during the marriage and provides the factors that should be taken into account when making the division. Besides (I am speaking generally here) in a marriage, both spouses share everything, both contribute towards the home and family in one way or another, to a bigger or smaller extent. Where both spouses work and earn income, each of them inevitably spends his or her own income for the family. Similarly, where there is income from an asset purchased during the subsistence of the marriage, say rent, even though it may be paid into the account of one spouse, eventually it will go to the family, may be all and may be part of it. No one keeps an account, indeed no one should, as a marriage is not a business venture. So, if and when the marriage breaks up, it is unreasonable that the court should undertake an accounting of their income and expenditure during the period the marriage subsists. The function of the court is to make a fair and equitable division of the matrimonial assets that exist at the time of the divorce, taking into account the factors provided by s. 76. [Emphasis added] ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 8 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… [19] The Respondent claimed that although she had not contributed as much as the Petitioner, she had contributed in non-monetary terms as she had looked after the children and managed the household. [20] I was unable to accept the Respondent’s contention, in view of the fact that firstly, she had taken unpaid leave from 2015 to 2018, and it was the Petitioner who had borne all the household expenses. In fact, he was financially strapped as a result thereof, and evidence was led to establish that he had to provide tuition to supplement his income. These facts remain undisputed. [21] Secondly, the Respondent’s contention that she had looked after the children was also rebutted by the fact that she received continuous assistance from the Petitioner’s mother and a domestic helper who was paid for solely by the Petitioner. It therefore begs the question of how much non-monetary contribution the Respondent had made towards the household, and leaves the Respondent’s contention, with regard to her contribution towards the Damai Citra Property, very doubtful. [22] Having said that however, although the Petitioner was the main contributor towards the Damai Citra Property, it must be acknowledged that the Respondent had contributed as well towards the same, cash and otherwise, albeit minimally. [23] As such, my view was that she was entitled to 30% of the proceeds of the Damai Citra Property after the necessary deductions. This was an outcome that was more than reasonable for the Respondent in view of the facts alluded to above. ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 9 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… Division of PPA1M Property [24] The PPA1M Property was acquired by the Petitioner in 2016, by his sole effort and was registered in his sole name. The Petitioner had taken a Government loan for the balance purchase price of MYR286,000. It was undisputed that the monthly instalment payment is MYR1,702 and is deducted directly from the Petitioner’s salary. [25] With regard to the PPA1M Property, there was no contribution whatsoever made by the Respondent towards it, whether monetary or otherwise, and this is a fact that the Respondent herself had admitted during cross-examination. As such, the Petitioner should be entitled to the whole property, with no division whatsoever to the Respondent. Division of Lembah Maju Property [26] The Petitioner’s claim to the Lembah Maju Property to be transferred to his mother and brother was based on his averment that it actually belonged to them, and that it was sold and transferred to the Respondent for refinancing purposes, to assist the Petitioner. [27] In my view, this scenario provided by the Petitioner was untenable. The Lembah Maju Property was in fact sold to the Respondent by the Petitioner’s mother in February 2005, but the reasons behind the sale remain questionable. There was no proof of such arrangement between the Respondent on one hand, and the Petitioner’s mother and brother on the other hand, and without such evidence, the documentary evidence was indicative that the Respondent was the sole owner. ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 10 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… [28] Although the Petitioner’s mother had testified on behalf of the Petitioner, I was not convinced of her narrative of the Lembah Maju Property. She seemed unsure about the Lembah Maju Property, and in my view, her evidence on such matter was tailored to support the Petitioner’s narrative. [29] The fact that I had granted the PPA1M Property solely to the Petitioner fortified my view that it would be most equitable for the Lembah Maju Property to be given to the Respondent solely. Claim for jewellery [30] The Respondent had also claimed for the return of jewellery, which she averred belonged to her, alternatively for the amount of MYR100,000 in lieu of. In support thereof, she had adduced pawn receipts and photographs of such jewellery. [31] At this juncture, it was important to remind parties that since it was the Respondent who made the claim, it was she who had to first prove the existence of the jewellery, and that such jewellery belonged to her. This is trite law as prescribed by section 103 of the Evidence Act 1950, which reads: Section 103 – Burden of proof as to particular fact The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person. [Emphasis added] ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 11 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… [32] Not only does the Respondent have the legal burden to prove, she had to prove it on a balance of probabilities, which is the civil standard of proof. [33] The Respondent insisted that the jewellery was hers but, except for some ambiguous photographs and pawn receipts which she could not account for, she was unable to convince this Court of ownership of such jewellery. To compound the matter, the Respondent had admitted that she was the sole operator of a safe deposit box at OCBC, in which her jewellery was kept. [34] On this note, I drew guidance from the case of Muthuraja Suppiah v Sukumar Kokila [2020] 1 MLRHU 1820, where it was stated in the following passage: The last item in contention was that of some jewellery itemised by the Respondent which she sought the return of from the Petitioner. Unfortunately, the Respondent could not provide any cogent evidence that the said items were being held by the Petitioner . Such being the case, this Court declines to make any order with regard to this issue. [Emphasis added] [35] To compound the vague and ambiguous evidence adduced by the Respondent, the Petitioner on the other hand had adduced evidence that the jewellery referred to, which had, in fact, been pawned by the Petitioner, actually belonged to his mother and sister, and that the Petitioner had procured bank loans and used such loans to redeem the jewellery to return to his mother and sister. ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 12 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… [36] Hence, it is clear that the claim for the jewellery and the alternative sum of MYR100,000 in lieu thereof, was an unsubstantiated one. At this juncture, it must be emphasised that divorce proceedings should not be used to enrich oneself or obtain a windfall. [37] In my view, in respect of the claim for the jewellery, the Respondent had failed to prove it on a balance of probabilities. Conclusion [38] In the upshot, based on the aforesaid reasons, and after careful scrutiny and judicious consideration of all the evidence before this Court, and submissions of both parties, the Petition and Cross- Petition was allowed only to the extent of the division of property, as alluded to above. Dated: 11 April 2023 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 13 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-33-451-08/2019 11 April 2023 ……………………………………………………………………………………………… Counsel: For the Petitioner – Jayanthi Devi Balaguru, Nilam Bala Jaganath, Premalatha Arumugam and Sathiya Devi; Messrs Noor, Nilam & Associates For the Respondent – Thinagaran and Vijayaletchumi Muniandy; Messrs Zarina GT Vanan Vijaya Cases referred to: ➢ Muthuraja Suppiah v Sukumar Kokila [20201 MLRHU 1820 ➢ Sivanes Rajaratnam v Usha Rani Subramaniam [2002] 1 MLRA 178 Legislation referred to: ➢ Evidence Act 1950 – section 103 ➢ Law Reform (Marriage & Divorce) Act 1976 – section 76 ……………………………………………………………………………………………… S/N tYsayidSv0mRFrNnFZofpA 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal