Back
2026 MarsdenLR 1910
HIGH COURT MALAYA JOHOR BAHRU
WONG MEE LINGM, J
SUTHAGAR UTRAPATHY – Appellant
Versus
JAMUNA SANATHEPATHEY & ORS – Respondent
[Divorce Petition No: JA-33-382-08/2019]
Adultery in matrimonial law requires proof of actual physical intimacy. Mere circumstantial evidence, suspicion, or suggestive behaviour is insufficient to discharge the high burden of proof, which requires clear, cogent, and convincing evidence that excludes other reasonable explanations.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 - Sections 53 and 54 - Divorce - Adultery - Burden of proof - Evidence - To succeed in a claim for damages based on adultery, the burden rests on the claimant to prove, on a balance of probabilities, that there was voluntary sexual intercourse between a married person and someone who is not their spouse. ADULTERY, as recognised in matrimonial jurisprudence, requires proof of voluntary sexual intercourse... mere suggestive conduct, sexual innuendo, or the giving of intimate gifts falls short of this threshold. (Paras 61, 63, 65)
(B) Evidence - Admissibility and weight - Credibility of witnesses - Contradictory evidence and absence of contemporaneous documentation significantly undermine the veracity of claims, particularly when allegations of adultery are raised. The clear and positive views of a child are a factor but are not conclusive, especially where such views may be influenced by parents or lack independence. (Paras 23, 27, 37, 40)
Facts of the case:
The claimant sought damages alleging that the respondent committed adultery with a third party, which led to the breakdown of their marriage. The claimant relied upon testimony from family members and accounts of visits and intimate behaviour. The respondents denied any sexual relationship, framing their interactions as related to business or personal matters. The marriage had previously been dissolved via a consent order following different allegations regarding the cause of marital breakdown.
Findings of Court:
The court found that the claimant failed to produce any cogent evidence, such as forensic reports, reliable recordings, or independent documentation, to substantiate the allegation of adultery. Material inconsistencies in the claimant's testimony and the witness accounts rendered the evidence unreliable. Furthermore, the court determined that the allegations were raised as an afterthought.
Issues: The main issues were whether adultery had been proven by credible and sufficient evidence on a balance of probabilities and whether the claimant was entitled to damages for the alleged adulterous relationship causing the breakdown of the marriage.
Ratio Decidendi: Adultery is a serious allegation requiring clear, cogent, and convincing proof. Mere presence, opportunity, or suggestive messages are insufficient to establish an adulterous relationship. Circumstantial evidence must be incapable of any other reasonable explanation to warrant an inference of adultery.
Result: Claim dismissed with costs.
| Table of Content |
|---|
| 1. overview of procedural history, case claims, and summary of background facts. (Para 1 , 2 , 3 , 4 , 5 , 6 , 7 , 8 , 9 , 10 , 11 , 12 , 13 , 14) |
| 2. assessment of pw1's (wife) credibility regarding the alleged adultery. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26 , 27) |
| 3. evaluation of child witness evidence and the court's stance on unreliable testimony. (Para 28 , 29 , 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37 , 38 , 39 , 40 , 41 , 44 , 45 , 46 , 47 , 48) |
| 4. review of the third respondent's evidence and financial explanations for cohabitation claims. (Para 49 , 50 , 51 , 52 , 53 , 54 , 55 , 56 , 57 , 58 , 59 , 60) |
| 5. legal standard for proving adultery requires clear, cogent evidence beyond mere association. (Para 61 , 62 , 63 , 64 , 65 , 66 , 67 , 68 , 69 , 70) |
| 6. final determination that adultery was unproven and claim for damages dismissed. (Para 71 , 72 , 73 , 74 , 75 , 76 , 77) |
JUDGMENT
Introduction
[1] The 1st Respondent Wife ("R1") via Amended Reply to the Divorce Petition sought damages of RM150,000.00 from the 3rd Respondent ("R3") alleging the Petitioner Husband ("PH") has committed adultery with R3.
[2] After going through the evidence presented during the full trial and having read R3's written submissions, I dismissed R1's claim with costs of RM10,000.00, subject to allocator fees, to be paid by R1 to the R3 within fourteen (14) days from the date of the Order.
[3] Below are the grounds of my decision.
Background
[4] The background facts in this case are gathered from the cause papers and submissions filed by the parties in chronological order.
[5] The Divorce Petition was filed on 19 August 2019 under ss 53 and 54 of Law Reform (Marriage and Divorce) Act 1976 [Act 164], inter alia, seeking a dissolution of his marriage to R1 and claiming damages of RM100,000.00 against R2 for causing breakdown of their marriage.
[6] On 23 May 2021, the PH and R2 have recorded a consent judgment with the agreed terms, inter alia, that:
(i) marriage between PH and R1 be dissolved;
(ii) custody, care and control of the three (3) children be given to the PH and the access right be given to R1;
(iii) the PH and the three (3) children will stay at the matrimonial home;
(iv) a sum (parties agreed not disclose the amount) to be paid by R2 to PH; and
(v) judgment in default ("JID") to be entered against R3.
[7] Subsequently, on 12 September 2022, the JID against R3 was set aside.
[8] The Court has on 27 May 2024, allowed R1's application to vary the Decree Nisi dated 23 May 2021, inter alia:
(i) custody, care and control of the three (3) children be given to the R1 and the access right be given to PH;
(ii) PH shall pay RM2,250.00 per month as the maintenance for the three (3) children;
(iii) the matrimonial home to be sold within six (6) months and the proceeds of the sale after deducting the balance of the loan amount, all the costs and expenses, shall be shared equally between PH and R1.
[9] R1 alleges that:
(a) PH had entered into a customary marriage with the R3 in 2009;
(b) R3 had visited the matrimonial home and slept with the PH; and
(c) the relationship continued and caused the breakdown of the marriage.
[10] R1 also pleaded that the PH was an alcoholic, frequently returned home intoxicated, and physically abused her from the early years of the marriage.
[11] R1 also stated that she left the matrimonial home on or about 13 July 2018.
[12] R3 denied any adulterous relationship and stated that her visits to Johor Bahru were for the purpose of visiting relatives, personal matters including Court proceedings, and medical treatment.
[13] During the trial, witnesses were called to testify include R1 (PW1), the two (2) children (PW2 and PW3), R3 (DW1), PH (DW2) and the husband of R1 (DW3).
[14] I have not considered the submission made by R1 as the submission was filed on 25 October 2025 midnight which was two (2) days before the date fixed for decision. The R1 failed to file the written submission according to the date
