I. APPLICATION

Vide summons in chambers in encl (22), the petitioner-wife ("the wife") is seeking leave under O. 26 r. 1(1) of the Rules of the High Court 1980 ("O. 26 r. 1(1)") to serve on the respondent-husband ("the husband") and another woman, the corespondent, interrogatories in the First Schedule and the Second Schedule thereto respectively:-

(1) relating to the issues, primarily of adultery and consequentially of paternity, which were called into question in the divorce petition presented by the wife; and

(2) requiring the husband and the co-respondent to answer the interrogatories on affidavit within 14 days of the order.

II. CHRONOLOGY OF PLEADINGS

As encl (22) was made pursuant to O. 26 r. 1(1), it is essential for me to place in proper perspective the chronology of pleadings prior to its filing, as follows:-

Date Event

10 September 2003 The wife presented and served on the husband and the co-respondentthe divorce petition

17 October 2003 The husband filed and served on the wife the answers and counter application

20 October 2003 The co-respondent filed and served her answers

20 October 2003 to 14 June 2004 The wife did not file any other pleading

15 June 2004 The wife filed encl (22) for leave to serve interrogatories

III. PROCEDURE FOR INTERROGATORIES

The husband's learned counsel Mr. W.K. Chew submitted that the wife who filed encl (22) after the close of pleadings has failed to give any explanation therefor. He prayed that encl (22) be dismissed with costs Support was sought in:-

(1) R. 3(1) of the Divorce and Matrimonial Proceedings Rules 1980 ("Rule 3(1)");

(2) O. 18 r. 20 and O. 26 r. 1(1) of the Rules of the High Court 1980;

(3)Shum Kai Cheong v. See Too Woon Yee [1998] 4 CLJ Supp 251 HC; and

(4)Sarawak Building Supplies Sdn Bhd v. The Director of Forest, Forest Department Headquarters, Kuching & Ors [1999] 8 CLJ 527 HC.

Co-respondent's learned counsel Mr. Moi Teik Seng also asked for encl (22) to be dismissed with costs as discretion should not be exercised in favour of the wife.

The wife's learned counsel Mr. Mogan Karupiah argued that the above procedural issue raised for both the husband and the co-respondent was misconceived, and devoid of merits, as the wife is entitled to invoke O. 26. He added that O. 26 does not provide that the application for leave to serve interrogatories must be made before the close of pleadings.

Having regard to the above diverse submissions, it is necessary for me to examine the proper procedural steps which ought to be taken by the wife in relation to encl (22).

The procedure regulating the filing of encl (22) is to be found in the Divorce and Matrimonial Proceedings Rules 1980. Rule 3(1) where relevant reads:-

"Subject to these Rules and to any other written law, the Rules of the High Court 1980 shall apply with necessary modifications to the commencement of matrimonial proceedings in, and to the practice and procedure in matrimonial proceedings pending in the High Court "

In my view, Rule 3(1) authorises the application of eg the Rules of the High Court 1980 with necessary modifications For this purpose, in a case or proceedings pending in the High Court, any provision of the Divorce and Matrimonial Proceedings Rules 1980 authorising or requiring anything to be done in matrimonial proceedings shall be treated as if it were a provision of the Rules of the High Court 1980 : Rule 3(2).

In dealing with encl (22), it is abundantly clear that the practice and procedure shall be regulated by both the Rules of the High Court 1980 and the Divorce and Matrimonial Proceedings Rules 1980. In this regard, these two sets of Rules are collectively considered as part and parcel of the Rules of the High Court 1980.

That brings me to the construction of Rule 25 of the Divorce and Matrimonial Proceedings Rules 1980 which specifically provides as follows:-

"R.H.C. O. 26 rule 1 shall apply to a defended cause begun by petition as it applies to a cause within the meaning of that Order."