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2021 MarsdenLR 2084
HIGH COURT MALAYA SHAH ALAM
LEE HOCK TEONG – Appellant
Versus
CHING SUET YEEN – Respondent
[Petisyen Perceraian No: BA33-906-12/2018]
Finality of divorce decrees emphasizes that once a Decree Nisi is made absolute, it cannot be reopened except in exceptional circumstances dictated by illegality or lack of jurisdiction.
Headnote:(A) Law Reform (Marriage and Divorce) Act 1976 – Sections 53 and 61 – Divorce proceedings – Application by Wife to rehear Divorce Petition, rescind Decree Nisi and Absolute, and seek injunction dismissed due to procedural defects and finality of earlier judgment – Court's discretion to reconsider past decisions found inapplicable. (Paras 10, 12, 14)
(B) Finality of Decrees – The court emphasized the integrity and finality of Decree Nisi once it is made absolute, allowing for rescission only under exceptional circumstances. (Paras 11, 12)
Facts of the case: The parties were married in 2001 and had a son. The Husband filed for divorce in 2018, resulting in a Decree Nisi granted on 26 June 2019, which was made absolute immediately. The Wife later sought to set aside this decree citing reasons including lack of representation and defective prior applications. (Paras 4, 11)
Findings of Court: RW's application to set aside the Decree was dismissed due to finality, absence of merit, and lack of substantial evidence for claims made subsequently, including for injunctive relief. (Paras 10, 15)
Issues: The main issues revolved around whether the Decree Nisi Absolute could be set aside and the applicability of associated provisions under LRA, particularly due to procedural defects in prior applications. (Paras 11, 12)
Ratio Decidendi: The court concluded that once a Decree is made absolute, the court generally lacks jurisdiction to set it aside unless under specific, exceptional circumstances. (Paras 12, 14)
Result: RW's application dismissed with costs of RM2,000. (Para 15)
JUDGMENT
Introduction
[1] The Respondent Wife ("RW"), who is not represented, filed this application (Encl 75) against the Petitioner Husband ("PH"), asking as follows:
(i) A rehearing of the Divorce Petition under Rule 44 Divorce and Matrimonial Proceedings Rules 1980 ("DMPR 1980") that this Court disposed on 26 June 2019,
(ii) To rescind and set aside the Decree Nisi and Decree Nisi Absolute under Rule 50(5) DMPR 1980, s 53 Law Reform (Marriage Abd Divorce) Act 1976 ("LRA") and s 61(2)(b) LRA; and
(iii) For an injunction under s 103 LRA.
[2] The relevant cause papers and written submissions are as follows:
(a) Enclosure 75: Notice of application filed by RW on 9 December 2019;
(b) Enclosure 76: RW's affidavit in support affirmed by Ching Suet Yeen on 6 December 2019;
(c) Enclosure 81: PH's affidavit in reply affirmed by Lee Hock Teong on 15 January 2020;
(d) Enclosure 82: RW's affidavit in reply affirmed by Ching Suet Yeen on 31 January 2020;
Submissions/Submissions In Reply By PH And RW.
[3] This application was heard before me on 6 March 2020. After perusing the cause papers filed, respective written submissions of the parties, I dismissed the said application with a global cost of RM2,000.00, which includes her other applications (Encl 67: Interim maintenance pending the decision of the Court of Appeal, Encl 78: Attachment of PH's salary and Encl 83: Application for Committal Proceeding against PH. Dissatisfied with my decision (Encl 75), RW filed this appeal, and my reasons are as follows:
Brief Facts
[4] From the cause papers, the facts briefly are as follows:
(a) PH and RW were legally married on 6 October 2001 at the Thean Hou Temple Kuala Lumpur.
(b) They have a son (now 19+ years old).
(c) On 13 December 2018, PH had presented a single Petition for Divorce under s 53 LRA at the Shah Alam High Court. A counsel represented PH, but RW was not represented;
(d) On the trial date 24 June 2019, the learned counsel informed me that they had duly informed RW of the trial day, but she failed to be present in Court with no lawful excuse or reasonable explanation;
(e) All papers were in order, PH was ready to proceed with the trial, and the said trial proceeded with PH giving evidence and closing his case on the same day (O 35 r 1(2) RC 2012);
(f) Upon perusing all the evidence adduced, relevant cause papers, and brief submission by the learned counsel, I found that PH had succeeded in proving his case on a balance of probabilities. I, therefore, allowed his claim against RW;
(g) An order for Decree Nisi was granted, and upon an application by the learned counsel, the Decree Nisi was made absolute immediately. After the required formalities had been complied with, the Certificate of Decree Nisi Absolute dated 3 July 2019 was issued;
(h) Dissatisfied with my decision, RW had on 26 August 2019 (Encl 46) filed an appeal to the Court of Appeal against my decision.
(It is to be noted, from the Case Management Case 2 ("CMS2"), I found that she subsequently withdrew the said appeal, and the Court of Appeal accordingly struck it off on 2 March 2021);
(g) On 22 August 2019, RW applied (Encl 42) to set aside the Decree Nisi dated 26 June 2019 together with the Decree Absolute dated 3 July 2019, but RW, represented by a counsel, withdrew this application on 28 November 2019;
(h) On 23 August 2019, RW applied (Encl 44) for an order for an injunction against PH, but RW, represented by a counsel, withdrew this application on 28 November 2019; and
(i) On 9 December 2019, PH filed the present application (Encl 75), which is similar to the applications that were filed and withdrawn earlier (Encl 42 and 44, respectively), ie, to set aside/strike out this Court's decision dated 26 June 2019, the Decrees Nisi/Decree Nisi Absolute and an order for an injunction against PH.
Submission By The Respondent Wife ("RW")
[5] RW filed a lengthy submission which I have summarised as follows:
(a) Her earlier applications (Encl 42 and 44) were withdrawn by her c
