Mahadev Shankar J

This is a claim by the wife (petitioner) ('P') by way of ancillary relief for a lump sum payment and for maintenance against her husband ('R') and for damages against the co-respondent ('CR').

P married R in 1977. P is a teacher. R was in advertising. They have two children, a son born in 1981 and a daughter born in 1984. In 1986, P bought a house in Petaling Jaya. This house became their matrimonial home. The house cost RM95,000. P took out a government loan of RM91,000. To cover the balance, P took out her EPF moneys of RM7,000. The house was entirely paid for by P. P says the balance of RM3,000 was taken by R. Every month RM482.12 is deducted from P's salary as loan repayment to the government. As at May 1992, P has still 20 years to go to effect full repayment, and at this point in time the house is being rented out for RM400 per month. P pays all the assessment, quit rent and repairs.

Sometime in 1986, P stated she found out that R was 'having an illicit intimate relationship' with CR. P stated she 'continued to cohabit with R as she could not do anything to stop the relationship'. P has averred that CR had accompanied the family to church, to the zoo and Cameron Highlands and that on these occasions she could see that something was brewing. CR does not deny that a relationship was developing between herself and R. CR must have known that R was a married man with young children, but she did nothing to repel R's advances. Indeed in August 1988, R brought CR into the matrimonial home. P found this situation intolerable and in November 1988 moved out with her daughter.

CR stayed on in the matrimonial home and had a child by R born on 28 April 1989. In the proceedings before me, R and CR have admitted the adultery alleged by P. The birth of this illegitimate child is proof that sexual intercourse must have taken place at least as early as July 1988. R and CR were thus living in adultery in the matrimonial home from August 1988.

R moved P's son to Singapore at the end of 1988. He put the boy up with his sisters and sent him to a school in Singapore.

When P moved out of the matrimonial home in November 1988, she initially stayed for about a year in another house in Taman Tun Dr Ismail. Thereafter, R and CR also moved out to another house in the same street.

In August 1989, P filed an application in the Kuala Lumpur High Court for maintenance and custody of both her children. She had earlier applied to the conciliation tribunal where unsuccessful meetings took place from August through to December. A certificate was issued on 18 December 1989.

In May 1990, P filed her petition for divorce in this High Court at Shah Alam against R and CR. Particulars were given of how the open illicit relationship in the matrimonial home in front of P and her children caused great distress, pain and mental torture to P. In her petition, P claimed a lump sum and maintenance as against R and damages against CR.

In January 1991, the Kuala Lumpur High Court granted P custody of both her children but directed her claim for maintenance to be filed in the Petaling Jaya Magistrates' Court. This P did.

In R's answer to P's petition, R admitted the adultery but claimed that P had condoned and/or encouraged the adultery and that the adultery took place only after the marriage had broken down. No particulars were supplied as to the alleged encouragement or condonation or when it was alleged that the marriage had broken down.

CR also filed an answer admitting adultery but denying that P was entitled to damages therefor. Alternatively in the same words as R, CR pleaded encouragement/condonation, and irretrievable breakdown prior to the adultery. No particulars were given.

At the hearing of this divorce petition on 24 March 1991, counsel for R and CR stated that they were not contesting the adultery and that R also agreed that the marriage had broken down irretrievably. He asked that an order of dissolution be made that day and that t