Azizan Md Arshad JC:

GROUNDS OF JUDGMENT

[ENCLOSURE 22]

Introduction

[1]This Court on 03.09.2024, struck out (not dismissed) Enclosure 22 with no order to costs. The Respondent Wife (RW) had appealed to the Court of Appeal. These are my grounds of judgment.

[2]The Appellant and the Respondent are to be referred to as they were in the High Court.

The Brief Background

[3]The Petitioner Husband (PH)’s grounds for divorce, i.e. desertion, as he does not know of RW whereabouts “since 2016”. The Exemption of Service of the cause papers to notify the RW personally was granted by this Court on 18.08.2022.

[4]The Decree Nisi was granted by this Court on 30.08.2022 by way of the Order and Decree Nisi made absolute on 30.11.2022.

The Application (Enclosure 22)

[5]This is an application by the RW [Enclosure 22] to set aside the following orders obtained ex-parte by the PH in his proceedings for divorce against the RW pursuant to inter alia Order 32 Rule 6, Order 42 Rule 13 and/or Order 92 Rule 4 of the Rules of Court 2012

1.That the Order dated 18.08.2022 [Enclosure 12] exempting the Petitioner from serving the following cause papers: -

(a)Divorce Petition dated 20.07.2022 [Enclosure 1];

(b)Petitioner’s Affidavit in Support of Divorce Petition affirmed on 20.07.2022 [Enclosure 2];

(c)Statement of Arrangements of Children dated 20.07.2022 [Enclosure 3];

(d)Notice of Proceedings dated 04.08.2022 [Enclosure 5];

(e)Acknowledgment of Service [Enclosure 6];

(f)Notice of Hearing dated 21.08.2022 [Enclosure 10; and

(g)Directions for Trial dated 21.08.2022 [Enclosure 11];

2.upon the Respondent (“Exemption of Service Order”) be set aside;

3.That the Order dated 30.08.2022 inter alia dissolving the marriage [Enclosure 15] (“Order”) be set aside;

4.That the Decree Nisi For Dissolution of Marriage (Divorce) dated 30.08.2022 [Enclosure 16] (“Decree Nisi”), be set aside;

5.That the Certificate of Making Decree Nisi Absolute (Divorce) dated 30.11.2022 [Enclosure 18] (“Decree Absolute”) be set aside;

6.That the entry in the marriage register kept with the National Registration Department (Marriage and Divorce Department) of Malaysia relating to the marriage of the Petitioner and the Respondent be marked with the word “married”;

7.That the Registrar General of Marriages be directed with the power to cause the entry in the marriage register kept with the National Registration Department (Marriage and Divorce Department) of Malaysia relating to the marriage of the Petitioner and Respondent to be marked with the word “married”;

8.That the costs of this Application be paid by the Petitioner to the Respondent forthwith; and

9.Such further orders and/or reliefs as this Honourable Court deems fit and just.

Analysis and decision

[6]In this case, this Court would like to emphasize that this Court has struck out the application (Enclosure 22) with liberty to file afresh due to non-compliance with provisions.

[7]It should be emphasized that the appeal made on the ground that Enclosure 22 was dismissed is incorrect. The Court did not decide on the merits of the case but on technical grounds alone. Enclosure 22’s application was never disposed of on the merits. Therefore, this Court will not discuss or touch on the merits of this application.

Pre-liminarv view of the appeal

[8]Since the decision made is “with the liberty to file afresh”, the Court is of the view that no appeal should be made but should be re-filed in compliance with the requirements of the law.

[9]In Lee Ah Mok & Ors v Pentadbir Tanah Daerah Seremban & Anor , held that:

“[11] The SIC had prayed for the land reference be dismissed or struck out. Come the decision day the court had merely stated ‘order in terms. It was not clarified whether the land reference was dismissed or struck out. Any practitioner will be aware that these two orders are worlds apart, with special provisions to deal with them in the event of any dissatisfaction. Generally speaking, in the event of any dissatisfaction, the procedure to be adhered to pursuant to a d