JOSEPH JEGANATHAN V ROSALINE JOSEPH [1989] 3 MLJ 106

JOSEPH JEGANATHAN V ROSALINE JOSEPH
[1989] 3 MLJ 106

Facts of the case

The petitioner and the respondent were married in 1959 and have two children, a daughter aged 28 years and a son aged 25 years. The petitioner filed a petition seeking a dissolution of the marriage, alleging that the marriage had broken down irretrievably in that the respondent had behaved in such a way that he cannot reasonably be expected to live with her. The respondent denied that the marriage had broken down irretrievably, alleging that there was still life in the marriage and efforts at reconciliation have not been exhausted.

Judgment

The evidence adduced showed that the matrimonial home was filled with bitterness, strife, suspicion and tension generated by frequent violent quarrels between the petitioner and respondent and long periods of silence between the respondent and the rest of the family. There was virtually daily absences of several hours by the respondent from the matrimonial home and at times for periods up to 70 to 80 days. Efforts at reconciliation had been unsuccessful. The petitioner relied on the cumulative effect of all these problems to show that the marriage had irretrievably broken down. Subsection (1) of section 53 of the Law Reform (Marriage and Divorce) Act 1976 Act states that either party to a marriage may petition for a divorce on the ground that the marriage has irretrievably broken down. The court shall, under sub-s (2) of the same section, inquire into the facts alleged as causing or leading to the breakdown of the marriage and, if satisfied that the circumstances make it ‘just and reasonable’ to do so, make a decree of its dissolution. Further, in its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court shall have regard to one or more of the four facts stated in sub-s (1) of section 54. One of them, and this is the fact on which the petitioner relies, is as specified in section 54(1)(b):
      that the respondent has behaved in a such a way that the petitioner
      cannot reasonably be expected to live with the respondent.

Subsection (2) of section 54, inter alia, enjoins the court in considering whether it would be just and reasonable to make a decree to consider all the circumstances, including the conduct of the parties and how the interests of the child or children of the marriage or of either party may be affected if the marriage is dissolved.

Except for the provisions in section 54(2) and, in part, the provisions in section 53(2), quoted above, sections 53 and 54(1)(a) to (c) correspond substantially with section 1(1), (2)(a) to (c) and (3) of the English Matrimonial Causes Act 1973 (1973 c 18). In particular the provisions relating to the several facts to be relied upon as proof of the breakdown of the marriage in Malaysia, section 54(1)(a) to (c), are word for word similar to the provisions in section 1(2)(a) to (c) of the English Act. For the present case, the fact relied on is section 54(1)(b) of the Act corresponding with s 1(2)(b) of the English Act:
      that the respondent has behaved in such a way that the petitioner
      cannot reasonably be expected to live with the respondent.

In Livingstone-Stallard v Livingstone-Stallard Dunn J said at p 771,
      (I do not think) helpful to analyse the degree of gravity of conduct
      which is required to entitle a petitioner to relief under s 1(2)(b) of
      the 1973 Act.

Dunn J pointed out that the 1973 Act, as Lord Denning MR had emphasized in another context, is a reforming statute and the language of the subsection is very simple and quite easy for a layman to understand. In the Malaysian context, I pause here to add, the same observation can be made of section 54(1)(b) of the Law Reform (Marriage and Divorce) Act 1976. Dunn J then indicated the approach which the court should use as the test in assessing what is reasonable in the context of para (b):
      … I ask myself the question: would any right-thinking person come to
      the conclusion that this husband has behaved in such a way that the
      wife cannot reasonably be expected to live with him, taking into
      account the whole of the circumstances and the characters and
      personalities of the parties.

This approach was approved and applied by the English Court of Appeal in O’Neill v O’Neill [1975] 3 All ER 289 The approach in LivingstoneStallard and O’Neill was applied in Bergin v Bergin [1983] 1 All ER 905 by the Family Division in respect of s 1(c) of the English Domestic Proceedings and Magistrates’ Courts  Act 1978, the words of which are almost identical to s 1(2)(b) of the Engish 1973 Act. (See also Buffery v Buffery [1987] Current Law 1711

Though there are substantial similarities between the relevant English provisions and the Malaysian provisions there does appear to be some textual differences at first sight. Under section 53(2) of the Malaysian Act, as was stated earlier, the court hearing the divorce petition shall, so far as it reasonably can, inquire into the facts alleged as causing or leading to the breakdown of the marriage and if satisfied that the circumstances make it ‘just and reasonable’ to do so, make a decree of dissolution. Section 54(2) explains as to what is ‘just and reasonable’. It states:
      In considering whether it would be just and reasonable to make a decree
      the Court shall consider all the circumstances, including the conduct
      of the parties and how the interests of any child or children of the
      marriage or of either party may be affected if the marriage is
      dissolved and it may make a decree nisi subject to such terms and
      conditions as the Court may think fit to attach, but if it should
      appear to the Court that in all the circumstances it would be wrong to
      dissolve the marriage it shall dismiss the petition.

To my mind the language of these two subsections reinforces the approach taken in Livingstone-Stallard [1974] 2 All ER 766, that the court–in considering whether any right-thinking person would conclude that the respondent has behaved in such a way that the petitioning spouse could not reasonably be expected to live with the respondent–must take into account the whole of the circumstances and the characters and personalities of the parties. So far as the taking into account how the interests of any child or children of the marriage or of either party may be affected this accounting is but one circumstance that has to be considered in the totality of all the circumstances when applying the Livingstone-Stallard test. In my view and bearing in mind the provisions of s 47 of the Malaysian Act the test in Livingstone-Stallard– in essence, the conclusion of a right-thinking man in all the circumstances–is the proper test to be adopted by this court in this case. As far as the matter of the interests of the children, now adults, is concerned, that does not arise.

With the Livingstone-Stallard approach in mind it seems to me that the evidence adduced shows that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent. The evidence shows a suspicious woman who was so preoccupied with herself and her own affairs that she made life in the matrimonial home clearly unbearable for the respondent. She left the matrimonial home almost daily to spend time elsewhere for several hours over objections from her husband. She took time off to visit relatives in Ipoh once in two months and stayed away for long periods again over objections from her husband. It is quite clear that in the late seventies and early eighties the children of the marriage were school-going children, and no right-thinking man would in these circumstances ever consider the behaviour of the respondent as having been reasonable behaviour in relation to the petitioner who was then an office worker and could hardly have been expected to take care of the daily chores of the home and the needs of the school-going children; the respondent certainly paid scant attention to the feelings and needs of her husband.

Then there were the frequent quarrels between the petitioner and respondent. It is not clear who started most of them or what they were about but it is clear that the petitioner tried to be conciliatory most of the time to no avail. The respondent, too, was unmindful of hurting the petitioner’s feelings when she resorted to humiliating the petitioner in a public place and in front of their son. The petitioner well remembers the incident where she abused him for giving a lift to a lady colleague of his; the respondent and the petitioner together with their son went to the lady’s house by the side of a road and the respondent questioned the lady and ‘created a big scene in public’ by the side of the house. Her unrelenting fury directed at the petitioner continued at the matrimonial home and the petitioner said that had he not kept quiet things would have got worse. There is no doubt that this insensitive behaviour on the part of the respondent shook the petitioner and deeply wounded him.

It would appear that her temper was so uncontrolled that he, and justifiably so, anticipated violence from her. The petitioner spoke of the incident in Taiping where after a period of over 70 days absence she returned to the matrimonial home and demanded to take her clothes from the house. He advised her to contact a Catholic priest who was trying to reconcile the parties and she created ‘a big scene and threatened force’. So much so the petitioner had to push her out of the house. The respondent did not deny this incident. Many a time the petitioner tried to defuse the tense situation in the home by being conciliatory towards her but his efforts were rebuffed when she refused to talk to him for long periods for several years; she talked once or twice to the petitioner after the petitioner, and it was always the petitioner, had initiated the conversation. The parties quite clearly, for most of the time, had virtually nothing to do with each other. The respondent further exacerbated the tense and bitter relationship between the parties by stooping so low as to secretly tape conversations between the petitioner and the children. Whatever her reasons for so doing, it further alienated her from the petitioner.

If the circumstances show a marriage can be saved it should be saved. The petitioner says the marriage is dead and he relies on the cumulative effect of all his complaints. Although the respondent says the marriage is not dead and that all efforts at reconciliation have not been  exhausted the evidence shows nothing of that sort. The marriage has irretrievably broken down; taking into account the whole of the circumstances and the characters and personalities of the parties in this case any right-thinking person would come to the conclusion that the respondent has behaved in such a way that the petitioner cannot be expected to live with the respondent. There will be an order that the marriage stands dissolved. The decree nisi may be made absolute in three months. Costs to the petitioner.

Order accordingly.

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