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2022 MarsdenLR 2606
HIGH COURT MALAYA SHAH ALAM
PACHAYAMAH PACHAIAPPAN – Appellant
Versus
GUENDA RAJU KARUPPIA – Respondent
[Petition No: BA-33-103-03/2021]
A decree nisi made absolute cannot be set aside without good and compelling reasons, particularly when proper service has been established and the respondent fails to demonstrate a substantive defense.
Headnote:(A) Divorce and Matrimonial Proceedings Rules 1980 – Rule 44 – Law Reform (Marriage and Divorce) Act 1976 – Decree nisi – Application to set aside decree nisi made absolute for lack of service – The respondent argued non-receipt of petition and cause papers due to insufficient service, which was countered by evidence of proper service under the order for substituted service. The respondent's claims of not being aware of the proceedings were deemed uncredible as he had the opportunity to represent himself during the hearing and failed to do so. Applying principles from Hung Moy (P) v. Ang Cha Hooi, the court reiterated that compelling reasons are necessary to set aside such decrees. (Paras 1, 15-27)
Facts of the case:
The parties were married on 9 October 2012 but divorced after the petitioner filed a petition in March 2021 citing marital discord and multiple failed service attempts. The respondent's claims of unjust asset division were unsupported by evidence.
Findings of Court:
The court found no compelling reason to set aside the absolute decree and upheld the validity of the substituted service.
Issues
: Whether the respondent was properly served and whether any compelling reasons exist to set aside the decree nisi.
Ratio Decidendi:
The court determined that proper service had occurred and the respondent's failure to act during the proceedings negated claims of injustice regarding asset division.
Result:
The application to set aside the decree nisi was dismissed.
The Application
[1] This is an application by the respondent in a petition for divorce to set aside, inter-alia, a decree nisi that has been made absolute, on the ground that the petition and cause papers were not served on him. The application is made pursuant r 44 of the Divorce and Matrimonial Proceedings Rules 1980 and O 92 of the Rules of 2012.
[2] The petitioner strenuously objects to the application. For the purpose of these proceedings, the respondent and petitioner have filed two affidavits each.
The Facts
[3] The petitioner and respondent were married on 9 October 2012. They lived together at No 29, Jalan Mutiara, Taman Selayang Mutiara, Batu Caves, Selangor ("No 29") for some seven years. The property was purchased in both their names.
[4] Unfortunately there was marital discord and the petitioner moved out of the matrimonial home in 2019. In March 2021, she filed a unilateral petition for divorce in the Shah Alam High Court and made attempts to serve the petition and the cause papers on the respondent at No 29 by AR registered post, registered post and personally, but was unsuccessful. This prompted the petitioner to apply for an order for substituted service. On 27 May 2021 she obtained an order for substituted service which required her to post the petition and cause papers via registered post, and affix a copy of the petition at No 29 and also the noticeboard of the Shah Alam High Court. The petition was served in the manner stated in the order for substituted service, and the respondent did not defend the petition.
[5] The petition was thereupon fixed for virtual hearing on 25 August 2021. The petition stated there were two matrimonial assets, No 29 and a flat in Batu Caves. As the respondent was absent and did not defend the petition, the Court made an Order for the dissolution of the marriage and directed the respondent to transfer his half share in No 29 to the petitioner, whilst he retained the flat.
[6] On 17 September 2021, the sealed copies of the decree nisi and other related orders were served on the respondent. The respondent then filed the present application on 6 October 2021.
Parties' Submissions
[7] The respondent contends he was unaware of the divorce proceedings as he was not served with the petition and cause papers. He says that at all material times he was residing at No 29, and did not receive the cause papers.
[8] Additionally, he argues that even if the order for substituted service was validly obtained, the decree nisi must be set aside as the petitioner failed to comply with the said order which required her to affix a copy of the petition and cause papers at No 29.
[9] The respondent also contends that he has a defence on the merits as the order in relation to the division of the matrimonial assets is unjust. He says that the petitioner has made false averments in the petition that the flat is a matrimonial asset and No 29 was purchased and paid for solely by her. In the absence of full and frank disclosure of the material facts, the respondent argues, the decree nisi must be set aside.
[10] In response, the petitioner submits that the order for substituted service was properly obtained as it was only applied for when all attempts to serve the cause papers by AR registered post and personally failed.
[11] The petitioner denies that the petition was not served in accordance with the manner directed in the substituted service order. She contends that it is clear from the affidavit of service of the process server that the cause papers were effected in accordance with the Court order and that he had posted the same at No 29.
[12] The petitioner next contends that the Court must refuse relief to the respondent as he had knowledge of the divorce proceedings and the opportunity to defend it but chose not to do so. The petitioner submits that having refused to accept service, the respondent has waived his right to challenge the petition.
[13] Additionally, the petitioner contends
