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2026 MarsdenLR 837
HIGH COURT MALAYA JOHOR BAHRU
WONG MEE LING, J
RAGUNATH VADIVELOO – Appellant
Versus
DINITA MADHAVAN – Respondent
[Divorce Petition No: JA-24F-173-05/2025]
In matrimonial proceedings, the statutory presumption favoring maternal custody for children under seven is rebuttable. The court must prioritize the child's best interests and foster bonding with both parents, granting interim access unless there is credible evidence of harm or unsuitability that justifies restricting parental contact.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Section 88(3) - Guardianship and Infant Act 1961 - Section 5(1) - Custody and Access - Interim access application - Presumption that it is for the good of a child below seven to be with the mother is rebuttable - Court must have regard to the undesirability of disturbing the child's life by changes of custody - Both parents have equal rights in managing infant's personal care - Interests of the child are paramount. (Paras 12, 16, 21, 22)
(B) Access Rights - Court may grant interim access to a parent pending disposal of custody proceedings - Allegations of parental unsuitability or mental instability require evidence (such as medical reports) to be substantiated - Supervised access is not warranted in the absence of evidence showing child resistance or potential harm - Regular contact is essential to strengthen bonding between the child and the non-custodial parent. (Paras 20, 29, 30)
Facts of the case:
The parties were involved in a matrimonial dispute concerning their minor child. The father sought interim access to the child, which was contested by the mother, who cited the child's age and her own primary caregiving role. The mother alleged behavioral issues regarding the father, while the father raised concerns regarding the mother's mental health and potential abuse, leading to a request for a psychiatric assessment. The court aimed to determine if the father should have continued access pending final resolution of custody.
Findings of Court:
The court found that although there is a presumption for a child under seven to be with the mother, it is rebuttable and the child's best interests are paramount. There was insufficient evidence to determine the mother's unsuitability for custody at the interim stage, but no justification existed to deny the father's right to bond with the child through regular, unsupervised day access.
Issues: Whether the father should be granted interim access to a young child pending the final determination of custody and whether current evidence establishes that the custodial parent is unsuitable, thereby rebutting the statutory presumption of maternal custody.
Ratio Decidendi: Both parents possess equal legal rights regarding the upbringing and care of an infant. In the absence of evidence confirming abuse or child resistance, the court must balance the right of the non-custodial parent to maintain a relationship with the child against the custodial parent's role, favoring arrangements that facilitate bonding without causing undue disruption to the child's life.
Result: Application allowed with modifications to the terms of access.
| Table of Content |
|---|
| 1. factual history and interim access order background. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12) |
| 2. rebuttable presumption of mother's custody and mental health evidence. (Para 13 , 14 , 15 , 16 , 17 , 18 , 19 , 20) |
| 3. equal parental rights and procedural conduct in family disputes. (Para 21 , 22 , 23 , 24 , 25 , 26 , 27) |
| 4. judicial discretion in balancing access rights and child welfare. (Para 28 , 29 , 30 , 31 , 32 , 33) |
JUDGMENT
Introduction
[1] The Plaintiff Husband ("PH") has filed an application (Enclosure 23), inter alia, to seek interim access to their child until disposal of the Originating Summons (Enclosure 1).
[2] After considering the Affidavits and submissions by the Parties, I allowed encl 23.
[3] Below are my grounds of the decision.
Background
[4] The background facts in this application are gathered from the cause papers and submissions of the parties.
[5] DW and the PH registered their marriage on 31 December 2021 at Kuil Sri Bala Subramaniar Skudai. As a result of the said marriage, they were blessed with one child by the name of Abirupa Ragunath ("AR"). After the marriage, they stayed at Johor Bahru.
[6] The problem started six (6) months after their customary marriage on 27 January 2022 due to the mental instablility and sensitive attitude of the DW. DW always fought with PH and threaten to divorce PH and kill herself.
[7] Further, DW alleged the breakdown of the marriage was also due to factors such as the PH's violent temper, abusive behavior and habitual intoxication.
[8] Sometime in October 2024, PH and DW were infected with influenza and admitted to the Gleneagles Hospital at Johor Bahru. DW was behaving unusual and always quarrel with PH. A psychiatric doctor had observed DW's behavior via video recording and advised PH to bring her to see him. The video recorded DW sitting on AR's bed and sobbing. The video also showed DW running into AR's ward in a state of hysteria. DW was treated by the psychiatric doctor, Dr Abdul Kadir bin Abu Bakar on the same day and she was given medicine Lamotrigine (anti-epilepsy drug) 25g and Menelata or Mitazapine (anti-depressants) 30mg (see Exhibit RV-1 of encl 4).
[9] DW has left the house on 5 December 2024 and moved to her parents' house at Sungai Petani with AR without informing PH.
[10] February 2025 was the last time PH saw their daughter, AR at the DW's parents house. PH has tried to make arrangements to see AR, however DW who was of fickle mind, always block and unblock PH. It has caused difficulties and hardship for PH to visit AR.
[11] On 9 October 2025, I have granted the ex-parte Order based on application filed by PH via encl 23 where PH is given interim access of AR pending the disposal of encl 1. PH is allowed to visit AR on alternate weekend, Saturday and Sunday from 12 noon till 4pm and PH will take AR from the DW's house at 12 noon and return AR at DW's house by 4pm. I then fixed the case for inter- parte hearing on 8 December 2025.
[12] On 8 December 2025, after hearing both parties submissions and taking into account both parties' interest and the child's interest being paramount, I allowed encl 23 with some modification to the said Order.
Issues To Be Determined
[13] The sole issue to be determined by this Court is whether the PH as a father of AR is allowed to continue having access to AR pending the disposal of encl 1.
Court Analysis and Findings
Whether The Ph As A Father Of Ar Is Allowed To Continue Having Access To Ar Pending The Disposal Of Encl 1
[14] The PH submitted he has rebutted the presumption of law under subsection 88(3) of Law Reform (Marriage and Divorce) Act 1976 [Act 164] where PH has proven that DW is not suitable to take care of AR due to her mental instability and emotional distress. PH alleged DW has abused AR where he found some red marks on AR's left arm when he visited AR on 2 November 2025.
[15] DW on the hand, argued that presumption under subsection 88(2) of Act 164 was not rebutted by PH and it
