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2024 MarsdenLR 2162
HIGH COURT MALAYA KUALA LUMPUR
VAN – Appellant
Versus
ZAN – Respondent
[Joint Divorce Petition No: WA-33JP-880-05/2023]
The court ruled that Rule 74 of the Divorce and Matrimonial Proceedings Rules does not apply when matrimonial proceedings are concluded, emphasizing the necessity of procedural safeguards in committal applications.
Headnote:(A) Divorce and Matrimonial Proceedings Rules 1980 – Rule 74 – Application for contempt of court – The Petitioner-Wife filed an application citing the Petitioner-Husband for contempt of court for breaching a court order – The court found no inconsistency between Rule 74 and Order 52, emphasizing the necessity of procedural safeguards in committal applications – The application was dismissed as the matrimonial proceedings were concluded and Rule 74 was deemed inapplicable. (Paras 6, 24, 49)
(B) Committal Proceedings – The court emphasized the importance of strict compliance with procedural requirements in committal proceedings, given their serious nature and potential impact on liberty. (Paras 29, 34)
Facts of the case: The Parties were married in 2012 and filed for divorce in May 2023, agreeing to terms incorporated into a court order. The Petitioner-Wife claimed the Petitioner-Husband failed to comply with maintenance terms, leading to this application. (Paras 3, 4)
Findings of Court: The court found that the application was improperly filed under Rule 74, which was not applicable as the matrimonial proceedings were concluded. (Paras 49, 50)
Issues: The main issues were whether the application was correctly filed under Rule 74 instead of Order 52 and the interpretation of 'pending' in Rule 74. (Paras 6, 42)
Ratio Decidendi: The court ruled that Rule 74 does not apply when matrimonial proceedings are concluded, and strict adherence to procedural safeguards is essential in committal applications. (Paras 49, 50)
Result: Application dismissed.
JUDGMENT
Introduction
[1] This was an application in encl 13 ("this Application") by the Petitioner-Wife pursuant to r 74 of the Divorce and Matrimonial Proceedings Rules 1980 (Divorce and Matrimonial Proceedings Rules), to cite the Petitioner-Husband for contempt of court for having breached a court order dated 21 June 2023 ("the court Order").
[2] Due to the privacy concerns of the parties involved in this Application and the sensitivity of the issues at hand, the Petitioner-Husband and Petitioner-Wife have been anonymised as VAN and ZAN respectively.
The Factual Background
[3] The Petitioners ("the Parties") were married in 2012 and were blessed with two children, born respectively in 2013 and 2017.
[4] In May 2023, the Parties filed a joint petition for divorce and agreed to several terms The terms were incorporated into the court Order.
[5] In February 2024, claiming that the Petitioner-Husband had failed to comply with the terms of the court Order pertaining to maintenance, the Petitioner-Wife filed this Application via summons in chambers, pursuant to r 74 of the Divorce and Matrimonial Proceedings Rules.
The Issues
[6] The main issue for consideration was whether the Petitioner-Wife was correct to file this Application pursuant to r 74 of the Divorce and Matrimonial Proceedings Rules ("Rule 74") instead of O 52 of the Rules of 2012 ("Order 52").
[7] Following the main issue, the court had to address whether there was inconsistency between r 74 and O 52, and the interpretation of the word 'pending' in r 74.
[8] This Application was dismissed for the following reasons.
Contentions, Evaluation, And Findings
Whether Rule 74 Prevails Over Order 52
[9] The Petitioner-Wife contended that by virtue of r 74, there was no necessity to comply with the procedure stipulated in O 52. Both provisions are compared in Table A below:
Table A
Rule 74 — Committal and injunction. Order 52 — Committal. (1) Notwithstanding anything to the contrary, an application for an application for an order of committal in matrimonial proceedings pending in the High court shall be made by summons and shall be heard in open court.
(2) Where no judge is conveniently available to hear the application then, an application for:
(a) the discharge of any person committed; or
(b) the discharge by consent of an injunction granted by a judge, may be made to the registrar who may, if satisfied of the urgency of the matter and that it is expedient to do so, make any order on the application which a judge could have made.
Rule 1 — Definition.
In this Order, "court" means the High court, Sessions court and Magistrates' court;
"Judge" means a high court Judge, Sessions court Judge or Magistrate.
Rule 2 — Committal for contempt of .
The court may, on the application of any party to any cause or matter or on its own motion, make an order of committal in Form 107.
Rule 2A — Contempt committed in the face of the .
(1) If a contempt is committed in the face of the court, it shall not be necessary to serve a formal notice to show cause, but the court shall ensure that the person alleged to be in contempt understands the nature of the offence alleged against him and has the opportunity to be heard in his own defence, and the court shall make a proper record of the proceedings.
(2) Where a Judge is satisfied that a contempt has been committed in the face of the court, the Judge may order the contemnor to appear before him on the same day at the time fixed by the court for the purpose of purging his contempt.
(3) Where such person has purged his contempt by tendering his unreserved apology to the court and the Judge considers the contempt to be not of a serious nature, the Judge may excuse such person and no further action shall be taken against him.
(4) Where such person declines or refuses to purge his contempt, then the Judge shall sentence him.
Rule 2B — Other cases of contempt.
In all other cases of contempt of court, a formal notice to show cause why he should not be committed to
