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2024 MarsdenLR 548
HIGH COURT MALAYA KUALA LUMPUR
LIOW KENG LUAN – Appellant
Versus
TAN SI HAI @ TAN SI YEN & ANOR – Respondent
[Divorce Petition No: WA-33-205-04/2023]
The definition of 'molestation' encompasses a range of behaviors beyond physical violence, justifying non-molestation orders to protect emotional well-being during matrimonial proceedings.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 – Section 103 – Non-molestation order – The Court granted a non-molestation order to the Petitioner Wife, citing the Respondent's actions causing emotional distress and the need to prevent further harassment. The Court emphasized that the definition of 'molestation' extends beyond physical violence, encompassing annoyance and vexation. (Paras 9, 10, 12, 13, 31)
(B) Jurisdiction – The Court affirmed its jurisdiction to exclude the Respondent from the Bukit Damansara Residence, referencing precedents that support a spouse's right to remain in the matrimonial home during proceedings. (Paras 16, 18, 19)
Facts of the case: The Petitioner and Respondent, married since 1987, faced marital issues leading to the Petitioner's application for a non-molestation order due to the Respondent's alleged harassment and introduction of a Co-Respondent into their home. (Paras 2, 4, 14)
Findings of Court: The Court found sufficient grounds for a non-molestation order based on the Respondent's actions causing emotional distress and the need to protect the Petitioner's well-being. (Paras 13, 30)
Issues: The main issues included the definition of 'molestation', justification for the non-molestation order, and the Court's jurisdiction to exclude the Respondent from the residence. (Paras 6, 7)
Ratio Decidendi: The Court ruled that 'molestation' includes a range of behaviors causing annoyance and distress, and that it has the jurisdiction to grant exclusion orders to protect a spouse's rights during matrimonial proceedings. (Paras 10, 16, 19)
Result: The Respondent was ordered to refrain from molesting the Petitioner and was allowed limited access to the Bukit Damansara Residence.
JUDGMENT
Introduction
[1] This was an application ("this Application") by the Petitioner Wife in encl 23 for the following, namely (i) that the Respondent Husband including the Co-Respondent, be restrained until further order from molesting, harassing, or threatening the Petitioner; and (ii) that the Respondent be restrained from bringing, authorising, or allowing his agents, including the Co-Respondent, from entering the residence at Bukit Damansara ("the Bukit Damansara Residence").
The Factual Background
[2] The Petitioner and Respondent, (collectively, "the Parties"), both aged 64 at the time of the hearing of this Application, registered their marriage in Malaysia in October 1987, and were blessed with two daughters, born in 1991 and 1997 respectively.
[3] Throughout their married life, the Parties resided in various locations. This was due to the Respondent's professional obligations as a nephrologist at Prince Court Hospital which necessitated a dynamic lifestyle, prompting the family to divide their time between residences in Bandar Utama and Binjai on the Park ("the Binjai Residence"). Notably, the Petitioner's presence at the Binjai Residence dwindled progressively, culminating in a complete cessation of visits in the year 2017. The Petitioner eventually moved to their residence in Bukit Damansara ("the Bukit Damansara Residence") in 2021.
[4] As the years unfolded, the marital bond began to fray, marked by allegations of adultery and unreasonable behaviour on the part of the Respondent. These issues escalated, prompting the Petitioner to file for judicial separation, in April 2023. This was followed by a response by the Respondent in June 2023.
[5] In July 2023, the Petitioner filed this Application pursuant to s 103 of the Law Reform (Marriage and Divorce) Act 1976 ("Law Reform (Marriage and Divorce) Act"), which reads:
Section 103 - molestation
The Court shall have power during the pendency of any matrimonial proceedings or on or after the grant of a decree or divorce, judicial separation or annulment, to order any person to refrain from forcing his or her society on his or her spouse or former spouse and from other acts of molestation.
[Emphasis Added]
The Issues
[6] The pivotal matters under consideration in the present case encompassed three main facets, namely: (i) delineating the scope and significance of 'molestation'; (ii) assessing the justification for a non-molestation order in the current circumstances; and (iii) determining the extent to which a non-molestation order could impinge upon the Respondent's access to the Bukit Damansara Residence.
[7] Given the nature of this application as an injunction, additional points of contention revolved around the presence of serious questions to be tried and in whose favour the balance of convenience lay.
[8] This Application was allowed partially for the following reasons.
Contentions, Findings, And Evaluation
The Meaning Of 'Molestation'
[9] At the outset, it was crucial to determine the meaning of 'molestation' in the context of s 103 of the Law Reform (Marriage and Divorce) Act.
[10] The word 'molestation' is not defined in the Law Reform (Marriage and Divorce) Act. This was acknowledged by Abdul Malik Ishak J (as he then was) in Chan Ah Moi v. Phang Wai Ann , in the following passage, where reference was made to the English cases of Vaughan v. Vaughan [1973] 3 All ER 449 , George v. George [1986] 2 FLR 347 and Johnson v. Walton [1990] 1 FLR 350 , as well as the Britannica World Language Edition of The Oxford Dictionary:
Unfortunately, the word "molestation" is not defined in the Act. The Britannica World Language Edition of The Oxford Dictionary defines "molestation" as:
the action of molesting or condition of being molested; annoyance, disturbance, vexation
Whereas the Pocket Oxford Dictionary of Current English compiled by F.G. Fowler & H.W. Fowler, 4th Edn defines "molestation" simply as "troublesome". Davies LJ, in Vaughan v. Vaughan [1973] 3 Al
