A Decree Nisi once made absolute cannot be rescinded except in exceptional circumstances, which the respondent failed to demonstrate.

Introduction

[1] This is an application by the Respondent Husband ("RH") via Notice of Application (encl 35) mainly to rescind and set aside the Decree Nisi dated 30 May 2025 ("Decree Nisi"), Certificate Making the Decree Nisi Absolute dated 30 May 2025 ("Decree Nisi Absolute") and Court Order dated 30 May 2025 ("Court Order") and that the Divorce Petition via Case No: JA-33-349-07/2022 to be reheard under r 44 and O 93 r 4 of Rules of Court 2012 ("ROC 2012") or under the inherent jurisdiction of the Court.

[2] After having read the Affidavits, written submissions by both the RH and the Petitioner Wife ("PW"), and after having heard the oral submissions of the parties, I dismissed the RH's application with costs of RM5,000.00 subject to allocator costs, to be paid by the RH to the PW within thirty (30) days from the date of judgment.

[3] Below are my grounds of the decision.

Background

[4] The background facts in this application are gathered from the cause papers and submissions filed by the parties in chronological order.

[5] The brief facts which are relevant to the present application are as follows:

(a) on 8 July 2022, PW filed a Divorce Petition under ss 53 and 54 of Law Reform (Marriage and Divorce) Act 1976 [Act 164] seeking a dissolution of her marriage to RH, and other prayers;

(b) the service of the cause papers was effected via substituted service to the RH where no appearance was entered by the RH and no cause papers were filed by the RH as at 30 May 2023 and subsequently, the divorce and other reliefs were granted on the same date; and

(c) subsequently, on 10 August 2023, RH filed encl 35.

[6] In brief, the RH submitted the followings:

(a) service of the Divorce Petition and Notice of Trial is irregular;

(b) the RH did not receive the cause papers and was not aware of the divorce proceedings in Malaysia; and

(c) the Divorce Petition be reheard under r 44 and O 92 r 4 ROC 2012 or under the inherent jurisdiction of the Court.

[7] On the contrary, the PH contended that:

(a) the filing of the Notice of Application is fundamentally defective of which preliminary objection was raised;

(b) the RH's explanations were untruthful and that the RH was fully aware of the divorce proceedings in Malaysia but chose not to participate;

(c) the RH's allegations that he could not enter Malaysia by reasons of police reports lodged by the PW against him is a "red herring" and an "afterthought"; and

(d) the assertions that the RH did not receive the Divorce Petition were bare assertions without proof.

Court Analysis And Findings

[8] I have identified two (2) issues below for the determination of this Court:

(a) whether the Divorce Petition had been regularly and properly served to the RH; and

(b) whether there were exceptional circumstances or good or compelling reasons to rescind and set aside the Decree Nisi already made absolute.

Principles Of Law Applicable To Matrimonial Proceedings

[9] The relevant provisions governing and concerning divorce proceedings should be the ones as set out in the Divorce and Matrimonial Proceedings Rules 1980 ("DMPR 1980") and not the ROC 2012 being a statute of general application.

[10] The Applicant via encl 35, has inter alia, sought the Court order to rehear the Divorce Petition under r 44 and O 92 r 4 of ROC 2012.

[11] The PW contended that the ROC 2012 is not applicable to the divorce proceedings.

[12] In this regard, reference is made to the case of Robinder Singh Jaj Bijir Singh v. Jasminder Kaur