Mahadev Shankar J:

[1] This is the sequel to my earlier JUDGMENT (reported in [1994] 4 MLRH 406, [1995] 1 MLJ 852), wherein I directed that the parties be permitted to lead oral evidence and cross-examine each other in order that the court may finally decide what payments the respondent and co-respondent should make to satisfy the petitioner's monetary claims.

[2] As required by r 56 of the Divorce and Matrimonial Proceedings Rules 1980 ('the Rules'), the ancillary reliefs prayed for in the petition are as follows:

(a) that the respondent pay RM1,473.25 per month as maintenance for the petitioner and her two children by the respondent;

(b) that the respondent pay a lump sum of RM135,000 to the petitioner;

(c) that the co-respondent ('Fifi') do pay RM200,000 by way of damages;

(d) that the respondent be given reasonable access to his children by the petitioner;

(e) that interest be paid at 8% per annum on the aforesaid sums of RM135,000 and RM200,000 till realization; and finally

(f) that the costs of this application be taxed and paid by the respondent to the petitioner.

[3] The issue of access can be got out of the way immediately. From the time the petitioner left the matrimonial home in November 1988, it is manifestly evident that the respondent had become completely indifferent not only to the needs of the petitioner but also that of their two children, Isaac and Anne ('the children'). On 21 January 1991, the petitioner was granted custody, care and control of both of them. The three payments of RM200 each that the respondent made between November 1988 and January 1991 for their maintenance were derisory. His excuse that he stopped paying maintenance because he could not get access has to be rejected out of hand because he made no effort whatsoever to contact the children. In view of his loss of any contact with them since 1991, I order that the respondent be given leave to apply to this court for access which should be granted only after he has first satisfied the court that such application is made in good faith and that the access given will be in the children's best interests. Until such an order is made, I direct that he do not interfere in any way with the petitioner's custody, care and control of the children.

The Degree Of Responsibility For The Breakdown Of The Marriage

[4] In determining the amount of maintenance to be paid to a spouse, 'the degree of responsibility to be apportioned to each party for the breakdown of the marriage' has to be taken into account by s 78 of the Law Reform (Marriage and Divorce) Act 1976 ('the Act').

[5] Ms Chew of counsel for the petitioner has pointed out that s 58(2) of the Act has specifically used the words 'the co-respondent be condemned in damages in respect of the alleged adultery'. I agree that the passage in my earlier judgment (see Leow Kooi Wah v. Ng Kok Seng Philip & Anor, [1995] 1 MLJ 852) at p 446 lines 26 and 27 is wrong and must stand corrected. But the problem remains. If the award is not to include any exemplary or punitive element [s 58(3)(b)], how should the court assess the measure of damages where adultery is proved? There is an injury here for which amends have to be made, but what is the degree of responsibility for the adultery if the injured wife contributed to the situation by failing to take evasive action?

[6] Finding the right balance in this emotional tangle has caused me much anguish. My task has not been made any easier by the reluctance of the respondent and Fifi to come clean with an honest statement as to their income or their earning capabilities.

[7] I find as a fact that the respondent's feelings towards his wife started cooling off in 1986 when Fifi came into his life. The petitioner was then 35 years old. Isaac was then 5 years old and Anne aged 2. The petitioner was a full-time working mother. Isaac was a delicate child with respiratory problems that drove his parents to resort to faith healing. Both parents were church-going.

[8] Fifi was then a