SARANYA A/P RAMACHANDARAN v 1. ) SATHISWARAN SACHEIN A/L SATHASIVAM 2. ) DHIVYA SUBASHINI A/P MUNUSAMY

Case Significance

Applies the mandatory conciliation requirement in section 106 of the Law Reform (Marriage and Divorce) Act 1976, holding that a divorce petition filed without a certificate of failed reconciliation or a proper exemption is liable to be struck out.

This High Court decision at Shah Alam, in the Family Division, concerns an application by the respondent husband to strike out the petitioner wife's amended divorce petition on the ground that it was filed without a mandatory statutory prerequisite. The husband applied under Order 18 rule 19(1)(b) and (d) of the Rules of Court 2012 and the corresponding rules of the Divorce and Matrimonial Proceedings Rules 1980, contending that the wife had filed her amended petition without first obtaining a certificate of failed reconciliation from the reconciliatory tribunal, as required by section 106 of the Law Reform (Marriage and Divorce) Act 1976 (Akta Membaharui Undang-Undang (Perkahwinan dan Perceraian) 1976).

Section 106 ordinarily requires a party to refer the matrimonial difficulty to a conciliatory body and to obtain a certificate that the tribunal has failed to reconcile the parties before presenting a divorce petition, unless a recognised exemption applies. The court accepted that the requirement is mandatory and reflects the policy that a marriage should not be treated as at an end merely because one party asserts that reconciliation is futile, without any attempt at conciliation being formally undertaken or an exemption properly obtained. The petitioner wife had neither obtained the certificate nor properly secured an exemption.

The court declined, on this application, to decide whether the wife could show exceptional circumstances justifying an exemption, noting that this would be ventilated in a separate forum, but it held that her failure to take the steps needed to regularise her non-compliance lent weight to the view that her reliance on an exemption was a belated afterthought rather than a legitimate claim made in accordance with the law. Finding the petition to have been filed in breach of the mandatory procedure, the court allowed the striking-out application and awarded costs in favour of the respondent husband. The judgment is a clear application of the mandatory conciliation requirement in section 106 as a precondition to presenting a divorce petition.