Faiza Tamby Chik J:

The three main issues for consideration are as follows:

(a)whether the dissolution of marriage should be granted on the alleged ground of adultery as in the petition by the petitioner or dissolution of marriage should be granted on the ground of two years separation as in the respondent's cross petition;

(b)whether the petitioner is entitled to claim in the alleged property purchased prior to the marriage which the petitioner alleged is matrimonial property namely the property known as No 52, Jalan 9/101, Desa Aman, Jalan Cheras, 56100 Kuala Lumpur (‘the Desa Aman property’); and

(c)whether the petitioner is entitled to a claim for maintenance for herself.

The following facts are not in dispute, that:

(a)the petitioner and the respondent registered their marriage at ‘Persatuan Perniagaan Tionghua Johor’ in 24 March 1984;

(b)there are no children born to their union;

(c)both the respondent and the petitioner were gainfully employed throughout the subsistence of the marriage;

(d)the respondent and the petitioner, before the separation lived in the property known as No 52, Jalan 9/101, Desa Aman, Jalan Cheras, 56100 Kuala Lumpur (‘Desa Aman property’) and thereafter the separation on 14 March 1994, the petitioner continues to live at the Desa Aman property until today and the respondent lives elsewhere;

(e)the Desa Aman property was purchased and paid for by the respondent before the marriage and the Desa Aman property is registered under the respondent's sole name;

(f)the property known as at 14-1-12 (Lot K0115), Jalan 2/91-A Taman Shamelin Perkasa, 56100 Cheras, Kuala Lumpur (‘the apartment’) was purchased in 1992 (after the marriage) and registered in the sole name of the petitioner but payments were made by the respondent as stated in the respondent's affidavit at paras 8 to 12 of encl 84;

(g)both parties agree that the marriage has broken down irretrievably based on the ground that parties have lived apart for two years immediately preceding the cross petition being filed by the respondent (see para 13 of petitioner's reply at encl 60) where else the ground of alleged adultery is disputed by the respondent.

First Issue: Dissolution of Marriage is based on the Petitioner's Petition or the Respondent's Cross Petition

The petitioner had alleged that the marriage has irretrievably broken down as a result of the respondent's alleged adultery with the co-respondent pursuant to s 54(1)(a)Law Reform (Marriage and Divorce) Act 1976s 54(1)(d)s 53s 54s 54(1)(d)immediately preceding the presentation of the cross petition for divorce pursuant to s 54(1)(d)

Dalam jawapan kepada perenggan 27 hingga 30, jawapan dan petisyen balas (encl 56) bertarikh 24 Oktober 2002, pihak pempetisyen bersetuju bahawa perkahwinan pihak pempetisyen dan pihak responden hendaklah dibubarkan.

The cause for the breakdown in the marriage is that the parties had lived apart for a continuous period of at least two years immediately preceding the filing of the cross petition. Hence, it is clear that the petitioner in her averment in para 13 of encl 60 agreed and consented that the marriage has broken down irretrievably due to the parties having lived apart for two years immediately preceding the filing of the cross petition. The respondent has proven to this court that both parties have since lived separately in 1994. It is also an undisputed fact that since the parties’ separation in 1994 both the respondent and the petitioner are at all material time gainfully employed and self-sufficient. Both parties have managed and lived their lives independently of each other. Further, there are no children born to this union

The petitioner must prove to the satisfaction of the court beyond reasonable doubt that the respondent had committed adultery and it is due to the alleged adulterous relationship which led to the breakdown of the marriage. This principle is upheld in the case of Shanmugam v Pitchamany & Anor

It is well established in law that an allegation of this natu