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Malayan Law Journal Unreported/1994/Volume /TAN WAT YAN v KONG CHIEW MENG AND THIRD PARTY
- [1994] MLJU 385 - 21 February 1994
15 pages
[1994] MLJU 385

TAN WAT YAN v KONG CHIEW MENG AND THIRD PARTY

HIGH COURT (KUALA LUMPUR)
MOKHTAR SIDIN J
DIVORCE PETITION NO S-1-33-700 OF 1992
21 February 1994
Low Hop Bing (Low Hop Bing & Asso) for the petitioner.
Balwant Singh Sidhu (Balwant Singh Sidhu & Co) for the respondent and corespondent.

GROUNDS OF DECISION
This is a petition for divorce by one Tan Wat Yan (hereinafter referred to as "the Petitioner") against her
husband by the name of Dr. Kong Chiew Meng (hereinafter referred to as "the Respondent"). According to
the affidavits filed for the purposes of this petition it appears to me that the Respondent is not resisting the
petition for divorce and in fact supported the petition for divorce. The petition is not as simple as it appears to
be in view of the claim for damages by the Petitioner against one Chee Yoke Moi (hereinafter referred to as
the "Co-Respondent"). The Petitioner cited adultery as one of the grounds for divorce. The adultery was
committed by the Respondent and Co-Respondent. Both the Respondent and
[1994] MLJU 385 at 2
the Co-Respondent admitted the adultery and also admitted that they have lived together for the past few
years before this petition.As a result of the adultery the Respondent and the Co-Respondent have three
children. The Petitioner also prays for the custody of a boy by the name of Kong Hong Sin (hereinafter
referred to as the "child"). It is common ground that the child was adopted by the Petitioner and the
Respondent and becomes the child of the family.
The Petitioner and the Respondent were married on 14.12.1977 and the marriage was registered at the
Registry of Civil Marriages at Kinta, Perak. At the time of the marriage the Petitioner was working as a nurse
at the University Hospital, Petaling Jaya and the Respondent was working as a doctor at the General
Hospital, Ipoh. As a result of the marriage the Petitioner resigned from her post as a nurse at the University
Hospital and joined the government service as a nurse. Eventually she was posted to the General Hospital,
Ipoh in order to be near the Respondent. When she was posted to Ipoh, the Respondent was posted to a
health clinic at Batu Kurau some distance away from Ipoh. The Petitioner remained at Ipoh. At the
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beginning she was staying with the Respondent's mother but later moved out to a rented room which
according to her to be near the General Hospital, Ipoh. It was not disputed that whenever the Respondent
returned to Ipoh the Petitioner would go back to the Respondent's house in order to be with him. The
Respondent was re-posted to Ipoh and soon after he resigned from the government service. After resigning
from the government service the Respondent left Ipoh and went to Petaling Jaya to work at a clinic. His
mother and brothers followed and stayed with him in Petaling Jaya. The Petitioner who was attached to the
General Hospital, Ipoh was left in Ipoh. Eventually the Petitioner was transferred to the General Hospital,
Kuala Lumpur and she moved in to stay with the Respondent and his family. By that time the Respondent
was working at a clinic in Kepong. He bought one of the partners' share at that clinic and became one of the
two partners of the clinic. The Respondent admitted it was hard time for him since he got to pay for the
partnership. Both the Petitioner and the Respondent agreed that the Petitioner purchased a house using her

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entitlement for a government loan. They moved into the house and the Respondent's family followed. It was
obvious that
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there was no child from the marriage. There was a suggestion from the Respondent that he fathers a son
from another woman. According to the Respondent the Petitioner at first agreed but later changed her mind.
The Petitioner denied that she consented to this. Later on the Petitioner told the Respondent that she came
to know of a child born at the General Hospital, Tampin ready for adoption. Both of them and the
Respondent's mother went to see the child and agreed to adopt the child. They even went to the extent of
registering the child as their own, viz. the Petitioner as the mother and the Respondent as the father. This
was done by the Respondent. As such the child now became the child of the family.
The Respondent alleged that the Petitioner was not a good mother because she did not take good care of
the child and it was his mother who took care of the child. From the evidence it is clear to me that both the
Petitioner and the Respondent were pursuing their separate careers.The Respondent was working hard to
pay for the partnership of the clinic which he bought and he even worked on night shifts in Petaling Jaya. The
Petitioner was attending a course which required her to be at the hospital when she had to be
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on night duty. Since both of them had little time to spend in the house the child was left in the care of the
Respondent's mother who appeared to be very free so much so she could attend "tai chi" and lion dances
classes. It was not denied that whatever little time she had at the house the Petitioner tried to look after the
child to the best of her ability. It was obvious to me that she was inexperienced in this. It was at about this
time that trouble started between the Petitioner and the Respondent.
From the evidence it is clear to me that the relationship between the Petitioner and the Respondent's family,
especially his mother, was not good. The Respondent knew about this but made no attempt to remedy the
situation such as by staying separately from the mother. Wherever he went he would take the mother first. All
the time until recently the mother was always with him. The Petitioner gave evidence that when the
Respondent bought the clinic at Kepong she heard rumours that the Respondent had an affair with the CoRespondent who was working at the same clinic. The Petitioner also gave evidence that there was a
wedding dinner for him and the Co-Respondent. The Respondent admitted there was a
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dinner but denied it was a wedding dinner. It is clear to me from the evidence that the Co-Respondent was
working at the clinic in Kepong when the Respondent joined the clinic. Some time later it appears from the
evidence of the Respondent that the Co-Respondent left the clinic. This was before the purported wedding
dinner.It was at about this time that the Respondent suggested to the Petitioner that he fathers a child from
another woman. When the Petitioner confronted the Respondent about the dinner the Respondent left the
house and went to stay with the Co-Respondent. About a year later both the Respondent and the CoRespondent admitted the first child was born to them. Up to the date of hearing there are already three
children from the relationship. The learned counsel for the Respondent pointed it to me that the first child was
born more than a year after the Respondent left the Petitioner and conceivement of a child in the normal
circumstances is nine months plus and as such it was not possible that the Respondent was married to the
Co-Respondent on the date when the wedding dinner took place because the dinner took place more than a
year before the first child was born. I am not impressed by the argument. To me it is clear that the existence
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of a marriage will not necessarily lead to the immediate conceivement of a baby. Whatever it is it appears to
me that there was already a relationship in existence between the Respondent and the Co-Respondent
before the Respondent left the Petitioner. From the evidence it is also clear to me that during the subsistence
of the marriage between the Petitioner and the Respondent, the Respondent had committed adultery with the
Co-Respondent. This was not denied by the Respondent or the Co-Respondent. The only point raised by the
Respondent and the Co-Respondent is when was the first adultery committed. In my view this is not
important at all to determine the damages to be awarded against the Co-Respondent.
From the authorities it is clear to me that once adultery is proved then it is a ground for divorce if the Court is
satisfied that the Petitioner did not condone the act of adultery by the Respondent and that it is impossible for
the Petitioner to continue living with the Respondent. From the evidence given in this case it is clear to me
that the Petitioner did not condone the act of adultery committed by the Respondent. From the evidence also
it is not

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[1994] MLJU 385 at 8

difficult for me to conclude that the Petitioner could not possibly continue living with the Respondent. This
had been going on for the last 7 - 8 years.
With that I am satisfied that the Petitioner had proved that the Respondent had committed adultery with the
Co-Respondent. The Petitioner is therefore entitled to the divorce on the ground that she has petitioned.
What is the effect of the adultery which has been proved against a Co-Respondent. Section 58(3)(b) of the
Law Reform (Marriage and Divorce) Act 1976 provides as follows:
"(3) where damages have been claimed against a co-respondent (a).....
(b) if, at the conclusion of the hearing, the court is satisfied that adultery between the respondent and
co-respondent had been proved, the court may award the petitioner such damages as it may think fit,
but so that the award shall not include any exemplary or punitive element."

It is clear from that section that the Court may award damages against the Co-Respondent once adultery has
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been proved. The element of damages in my view depends on the circumstances and the losses suffered by
the Petitioner due to the adultery. Though counsel for the Respondent and Co-Respondent had taken pain to
show to the Court that the adultery was committed after the separation, it is not the sole question to
determine the amount of damages. One has to consider the losses and the sufferings of the Petitioner due to
the adultery. From the evidence I am satisfied that the adultery was committed before the Respondent left
the Petitioner.
From the evidence it is not wrong for me to conclude that there were family squabbles between the Petitioner
on one part and the Respondent and his family on the other part. From the evidence it is clear to me that the
Petitioner also suffered when the Respondent wanted to start his private practice. She helped the
Respondent in maintaining the households and even went to the extent of taking a government loan to
purchase a house in order for her and the Respondent to stay.The Respondent's family also stayed in the
same house. I could not help but conclude that when the Respondent left the government service he was a
man with little means so much so he
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had to work day and night to purchase a half share in the clinic.All this time the Petitioner was always by his
side. The Respondent himself admitted this when he said he had to work at two clinics in order to pay for the
buying of a half share in the clinic. When the Respondent had established himself and it appears to the Court
that he had steady income the Co-Respondent came along and took the Respondent away from the
Petitioner. For that I am of the view that the Petitioner had suffered losses and means. She was so
disappointed that she resigned from her post and left for Singapore when she realised that the Respondent
was not coming back at all. For that I am of the view that the Petitioner is entitled to damages against the CoRespondent. Taking the position of the stability of the Respondent and the sufferings by the Petitioner I am of
the view that the sum of RM70,000.00 is a fair figure.
Let me now turn to the issue of custody of the child, Kong Hong Sin. It is clear to me that the child was
adopted by the Petitioner and the Respondent. Both of them went to the extent of registering the birth of the
child as being born to them. This is evidenced by the birth certificate.
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The information given in the certificate was given by the Respondent. From the evidence the child was
adopted on the suggestion of the Petitioner.The Petitioner informed the Respondent that there was a child
born at the Tampin General Hospital ready for adoption. The Petitioner, Respondent and the Respondent's
mother then went to Melaka to the house of the Petitioner's sister where the child was kept. After seeing the
child the Petitioner and the Respondent decided to adopt the child. The status of the child as an adopted
child of the Petitioner and Respondent is not clear under our law. However, applying the Civil Law Act, the
law applicable in England is applicable here.

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In the Matrimonial Causes Act 1973, "child" in relation to one or both of the parties to a marriage, includes an
illegitimate or adopted child of that party, or, as the case may be, of both parties. "Child of the family", in
relation to the parties to a marriage, means a child of both of those parties. As such in my view the said Kong
Hong Sin is the "child of the family" of both Petitioner and the Respondent.
In the present case both the Petitioner and
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Respondent are requesting for the custody of the child of the family. It is established principles that the
Court, in deciding the question of custody, must take into consideration the welfare of the child as the first
and paramount consideration, and must not take into consideration whether from any other point of view of
the claim of the father in respect of such custody or upbringing is superior to that of the mother, or the claim
of the mother is superior to that of the father. From the authorities I have read it is clear to me that the Court
has to consider the relevant factors including the conduct of the parties and their characters. There is no hard
and fast rule that could be laid down based on the sex of the parent and child though the Court is more
inclined to award the custody of a child of tender age, viz. about six years and a girl below 14 years to the
mother. Thus circumstances of the separation between the husband and the wife has some significance and
also the income of each parent.
The Respondent had given evidence at great length to show that the Petitioner is incapable of bringing up
the child. He even went to the extent of stating that when the Petitioner took care of the child she
[1994] MLJU 385 at 13
hurt the child. The Respondent knows that the Petitioner, just like him, is a career woman who had little time
to spend in the house. For that reason the Respondent's mother took care of the child. From his own
evidence it is clear to me that the Respondent himself had little time for the child.He spent most of the time
working in order to earn more money. He himself left the caring of the child to his mother. It must be
remembered that the right to custody is between the Petitioner and the Respondent and not the
Respondent's mother. The Respondent himself gave evidence that he had asked his mother and the child to
move out from the house where he is staying with the Co-Respondent and their three children. His reason
was that the house was too small. Is that the only reason or was it something else? Was it because he wants
to devote more time with the three children he had with the Co-Respondent. Whatever the reason was it is
clear to me that the child would not be under the same roof with him even if custody to be given to him. It is
also clear to me that he could not devote his time on the child and his devotion is totally divided.
On the other hand the Petitioner had stated that
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she wants the custody of the child and in doing so she is willing to resign from her post as a nurse in
Singapore in order to devote her time on the child. She admitted that for the last three years she met the
child twice not because she wanted to see him twice only but because she was not allowed to meet the child
by the Respondent. She stated she met the child twice after pleadings to the Respondent. This was denied
by the Respondent. Anyway it was admitted by the Respondent that the child was taken away from the
house by the Respondent's mother even before the Respondent left the Petitioner. As such it appears to me
that no opportunity whatsoever was given to the Petitioner to look after the child. This appears to confirm her
version that she was forbidden to see the child by the Respondent. Though the Respondent's mother had
been taking care of the child it is not a ground to award the custody of the child to the Respondent as stated
in the case of Helen Ho Quee Neo v. Lim Pui Heng (1974) 2 MLJ 51.
In that case the parties were divorced, the appellant wife having obtained the decree on the ground of
husband's cruelty. The judge made an order the custody of the child to be given to the husband
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taking into account the fact that the wife was not working and had no income and the child had been looked
after most of the time by the husband's mother. On appeal the wife contended that the respondent had
frustrated her wishes to bring up the child herself. The wife was forced to leave the matrimonial home and
the circumstances did not show any intention on her part to abandon the child. The Court of Appeal reversed
the decision of the learned trial judge and awarded the custody of the child to the wife.
The facts and circumstances of that case is more or less similar to the present case. One factor in the
present case is more in favour of the Petitioner, that is the child was taken out of the Petitioner's house
without the consent of the Petitioner. Taking into consideration of the whole case I am of the view that the

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custody of the child, Kong Hong Sin, to be given to the Petitioner with reasonable access to the Respondent.
This order appears to be harsh to the child at the beginning since it will be painful separation for the child and
the Respondent's mother, but in the long term it is better for him to be with the Petitioner who could give him
her love.
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With that I will make the following order:

1a)
1b)
1c)
1d)

Decree nisi to be made absolute after three months.

Co-Respondent to pay RM70,000.00 as damages to the Petitioner.
Custody of the child, Kong Hong Sin, to the Petitioner with reasonable access to the
Respondent.
Costs to be paid by the Respondent to the Petitioner.