[1991] 3 MLJ 34 BHANU SEKARAMANI v NAGAMMA HIGH COURT (KUALA LUMPUR) LIM BENG CHOON J DIVORCE PETITION NO S7-47-290

OF 1988 10 January 1991 Family Law Divorce Living apart for continuous period of two years Two-year separation prima facie proof of breakdown of marriage Law Reform (Marriage and Divorce) Act 1976, ss 53(1), 54(1) & (2) This is a divorce petition instituted by the husband to dissolve the marriage solely on the ground that the husband and the wife have been living apart continuously for more than two years since October 1984 until the presentation of this petition. The respondent denied that the parties had been living apart for a continuous period of two years since October 1984. She believed that the husband had been committing adultery with an unknown woman. Held, dismissing the petition:

It is clear from s 53(1) of the Law Reform (Marriage and Divorce) Act 1976 ('the Act') that the court should have regard to the fact that the parties to a divorce petition have been separated for at least two years prior to the filing of the divorce petition. But the two-year separation is only prima facie proof of the breakdown of the marriage. It is rebuttable when the respondent can show that the two-year separation per se does not cause or lead to the breakdown of the marriage. This is so because of the wording of s 54(2) of the Act.

(2) Under paras (a) and (b) of s 54(1) of the Act, the commission of adultery by the respondent or gross misbehaviour on the part of the respondent is not per se sufficient ground for a divorce simply because the respondent may be able to show that the petitioner has condoned the adultery or misbehaviour and the court must consider the conduct and circumstances of the case to see whether it is justifiable to grant a decree.

(3) Desertion per se under s 54(1)(c) is only prima facie proof of the fact that the marriage had broken down irretrievably; it is not conclusive but rebuttable.

(4) The two grounds relied on by the petitioner to support his allegation that the marriage had broken down irretrievably that the wife refused to stay with him or stay in his parents' house and the wife scolded him and showed disrespect to him would not be sufficient to justify that the marriage has irretrievably broken down, even if they were true.

LIM BENG CHOON J The husband petitioner and the wife respondent (hereinafter referred to as 'the husband' and 'the wife' respectively) were married on 27 September 1984 and the marriage was registered under s 27 of the Law Reform (Marriage & Divorce) Act 1976 ('the Act') at the Registry of Civil Marriage, Gombak, Selangor Darul Ehsan. There are no children of the marriage.

On 19 April 1988 the husband instituted this divorce petition to dissolve the marriage solely on the ground that the husband and the wife have been living apart continuously for more than two years sometime since October 1984 until the presentation of this petition and that reconciliation attempts made between the husband and the wife at the Marriage Tribunal, Petaling Jaya had not been successful. Hence, the husband claims that the marriage has broken down irretrievably. In his petition the husband said that after the marriage and before he left his wife, both the parties lived and cohabited at No 12 Jalan 1B Selayang Baru, Batu Caves, Selangor. I take it that the house where the parties lived is the matrimonial home. He also said in his petition that after the husband had left the wife, the latter was and is still staying at the matrimonial home. In opposing the husband's petition, the wife filed her answer on 27 September 1988. She denied that the parties had been living apart for a continuous period of two years since October 1984. She averred that she had conceived a child of the husband on or about March 1985 but suffered a miscarriage at the end of July 1985 when she was hospitalized at the General Hospital, Kuala Lumpur until 3 August 1985. The husband had visited her at the said hospital. Prior to the miscarriage, she was working as a factory hand in a furniture factory for a salary of $150 per month and she had to stop working due to the miscarriage. The place where the parties stayed was a squatter house which they shared with ten other people. In 1985, the exact date of which she could not remember, the wife found the photograph of a lady in the husband's diary. The husband quickly grabbed the photograph off the hand of the wife. She believed that the husband had been committing adultery with the unknown woman and from October 1985 the husband had intermittently lived with the said woman and his own wife. On 2 September 1988, the husband visited the wife and took her out to a hotel and had sexual relationship with her since it was not convenient to do so in the house with ten other people. The wife, therefore, asked that the husband's petition for divorce be dismissed with cost. The wife filed an affidavit affirmed by her on 27 September 1988 to support her application for maintenance. In her affidavit, she reiterated substantially what she had said in her answer. She stressed that the husband and she had lived together in the squatter area until October 1985 when he left her to live with the unknown woman. However that may be, the husband still came to be with her intermittently. In his affidavit in reply affirmed by him on 27 September 1989, the husband did not dispute any of the allegations made by the wife in her answer and her affidavit of 27 September 1988. In the said affidavit in reply, he merely set out the amount he received as his monthly salary and his monthly expenditure to counter the wife's claim for maintenance. In dealing with the case of Hariram Jayaram v Saraswathy Rajahram [1990] 1 MLJ 114 at p 116, I had, in passing, suggested (without deciding) that in considering a petition of divorce, the court was required pursuant to s 53(1) of 1991 3 MLJ 34 at 36 the Act to enquire into the facts alleged as causing or leading to the breakdown of the marriage. I must admit that what I had said is not quite correct because what s 53(1) provides is that in its inquiry into the facts and circumstances alleged as causing or leading to the breakdown of the marriage, the court will have regard to one or more of the facts stipulated in that section and one of the stipulated facts is 'that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition.' It is clear from s 53(1) of the Act that the court should have regard to the fact that the parties to a divorce petition have been separated for at least two years prior to the filing of the divorce petition. But the two-year separation is only prima facie proof of the breakdown of the marriage. It is rebuttable when the respondent can show that the twoyear separation per se does not cause or lead to the breakdown of the marriage. This is so because the following wording of s 54(2) of the Act relevant to the present case enjoins the court that '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 that 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.' I have had an occasion to raise these propositions when I dealt with the case of Tan Keok Yin v Cheah Saw Hong [1991] 2 MLJ 266. Furthermore under paras (a) and (b) of s 54(1) of the Act the commission of adultery by the respondent or gross misbehaviour on the part of the respondent is not per se sufficient ground for a divorce simply because the respondent may be able to show that the petitioner has condoned the adultery or misbehaviour and the court must consider the conduct and circumstances of the case to

see whether it is justifiable to grant a decree. It is only under para (c) of s 54(1) of the Act that a petitioner stands on firmer ground to get a decree when he or she can show that the respondent has, without reasonable cause, deserted the petitioner for a period of two years prior to the filing of the divorce petition. Even then desertion per se is again only prima facie proof of the fact that the marriage has broken down irretrievably; it is not conclusive but rebuttable. The scope of para (c) of s 54(1) is similar to s 1(2)(b) of the English Matrimonial Cases Act 1973 and the scope of the pertinent English statutory provisions has been dealt with in Stringfellow v Stringfellow [1976] 2 All ER 539 where it was held that desertion per se without more is not a good ground to assert that a marriage has irretrievably broken down. On the pleadings of the parties, I would be fully satisfied in holding that the husband had failed to make out a case that the marriage has irretrievably broken down. However, as the matter had gone on trial and both parties chose to give oral evidence I must scrutinize the evidence as a whole in order to find out whether the marriage indeed has irretrievably broken down. It is important to note that in his oral evidence the husband gave two grounds to support his allegation that the marriage had broken down irretrievably, namely, (i) that the wife refused to stay with him or stay in his parents' house and (ii) the wife scolded him and showed disrespect to him. I am inclined to hold that these two grounds are not true, and even if they were true, it would not be sufficient to justify that the marriage has irretrievably broken down. I say so for the reasons as enumerated below. From my scrutiny of the evidence as a whole I find as a fact that firstly, the marriage was not a matchmaking or arranged marriage by the parents of the husband or anybody. It was, if I may use the phrase, 'a love-match' marriage. Indeed the parties had been staying together for some time before they registered the marriage without the knowledge of the husband's parents. That being the case, it is incredible that the husband's love for his wife could have worn off within three months causing the husband to leave the wife in the matrimonial home. The reasons given by the husband in his evidence in his examination-in-chief were that the wife 'refused to come back with me (the husband) or follow me to my parents' house at Carey Island.' He also said that the wife chose to stay in Selayang Batu Caves and that she never showed any respect for him but instead scolded him. It is to be noted that the husband did not explain in what way the wife failed to show any respect for him; he merely said that his wife scolded him and even then he did not say why and how often such scolding took place. Arguments, scoldings and even quarrellings are no doubt negative attributes of any ordinary marriage life and such negative attributes are not by themselves sufficient to allege that it is intolerable to live with the wife. As regards the wife's refusal to follow him, the husband alleged (it should be observed) in the petition that after the marriage the couple lived and cohabited at No 12, Jalan B, Selayang Baru, Batu Caves, Selangor and it was also said in the petition that at the time of filing of the divorce petition the wife still stayed at the same address which, as I have said earlier, was the matrimonial home. That being the case I find as a fact that it is not the wife who refused to follow the husband but rather the husband deserted the wife and left her staying by herself at the matrimonial home. Secondly, from the way the wife gave her evidence in a simple and straightforward way and the quality of her evidence, it is more probable that the husband was staying with her until October 1985 in the matrimonial home. She conceived a child of the husband in March 1985 but had a miscarriage towards end of July 1985 1991 3 MLJ 34 at 37 when she had to be hospitalized. The husband visited her at the hospital. After her discharge from the hospital the husband then left her in October 1985 without making any effort even to pay the hospital charges. The reason for leaving the wife was reasonably explained by the wife's evidence where she said that in 1985 she happened to find the photograph of an unknown woman in her husband's diary. The husband quickly grabbed the photograph off the hand of the wife. There is no doubt in my mind that it was upon the discovery of this photograph that the husband made up his mind to desert the wife in order to be free to forge a closer relationship, if not with the particular unknown woman, at least with other women. This proposition is corroborated by what the husband said in his evidence given under cross-examination. He was asked by counsel for the wife whether he had any other women friends. His answer was that he had many friends meaning that he had many women friends although he denied that he had a special girlfriend. The wife denied that the husband had wanted her to leave the matrimonial home. She asserted that even after leaving her in October 1985, the husband still came back to the matrimonial home to see her and stayed with her. On one occasion in 1988, the

husband took the wife to a hotel to have sexual relationship with her. Her explanation that the husband took her to the hotel to have sexual relationship with her was that it was inconvenient to do so in the matrimonial home which the couple shared with ten other persons. Such an explanation cannot be said to be incredible. The standard of the behaviour of the respondent which warrants the petitioner to say that he cannot reasonably be expected to live with the respondent has been illustrated in the case of Katz v Katz [1972] 1 WLR 955 at p 960 [1972] 3 All ER 219: The standard is that he must behave in such a way that the petitioner cannot reasonably be expected to live with [him]. That is the test. It is for the judge not the petitioner alone to decide whether the behaviour is sufficiently grave to fulfil that test, that is, to make it unreasonable to expect the petitioner to endure it, to live with the respondent. Also it is for the judge to say whether the marriage has irretrievably broken down. To that extent, I agree with what Bagnall J said in Ash v Ash [1972] Fam 135. The court must consider the effect of the behaviour on the particular petitioner and ask the question is it established, not that she is tired of the respondent, or, colloquially, fed up with him, but that she cannot reasonably be expected to live with him. In a sense it seems to me wrong to call it, as we are apt to do, unreasonable behaviour. It is behaviour that causes the court to come to the conclusion that it is of such gravity that the wife cannot be reasonably be expected to live with him. (Emphasis is mine.) Again in Kisala v Kisala (1973) 117 SJ 664 at p 665 (1973) 4 Fam Law 90 Bagnall J said: when a respondent desired to plead that the marriage had not broken down irretrievably the common form denial of the petition did not achieve sufficient clarity. It was desirable where a respondent sought to rely on s 2(3) of the Divorce Reform Act 1969 that submission together with particulars of the positive case in support of that submission should be made in the answer. The wife's complaints about the husband were mere trivialities. Despite the reform of the divorce law it was not allowable for the court to dissolve a marriage simply because of one party's disinclination and boredom with the marriage. Petition dismissed. In applying the principles laid down in the two cases cited above, I am satisfied that the husband's complaints about the wife were trivialities. To my mind he wants the marriage to be dissolved not because of any misbehaviour on the part of the wife but rather because he is tired of the wife and bored and he wants to be free so that he can forge a closer relationship with the unknown woman or his other lady friends. Under the circumstances, I do not think that the marriage has irretrievably broken down. There is good prospect that the husband may, after reconsidering the matter, return to the wife. The petition for divorce is therefore dismissed with costs. Petition dismissed.

[1994] 2 MLJ 139 SOO LINA v NGU CHU CHIONG (CHONG OI KHIUM IRENE, CO-RESPONDENT) HIGH COURT (KUCHING) ABDUL KADIR SULAIMAN J DIVORCE PETITION NO KG9 OF 1991 28 March 1994 Family Law Divorce Marriage irretrievably broken down Petitioner and respondent allege different facts to establish marriage had broken down irretrievably Petitioner's reply to respondent's answer did not contain denial or admission on allegation of respondent that their marriage had irretrievably broken down as they had lived apart for a continuous period of at least two years immediately preceding presentation of the petition by petitioner Whether so-called admission by petitioner entitled respondent to a decree Law Reform (Marriage and Divorce) Act 1976 s 54(1) Family Law Divorce Marriage irretrievably broken down Petitioner and respondent allege different facts to establish marriage had broken down irretrievably Petitioner to satisfy court at the trial of those facts presented in her petition Law Reform (Marriage and Divorce) Act 1976 ss 53 & 54 Family Law Divorce Marriage irretrievably broken down Petitioner and respondent allege different facts to establish marriage had broken down irretrievably Respondent applied for order that proceedings be stayed and that he be at liberty to proceed on the prayer of the answer as an undefended suit Petitioner had counterclaimed against co-respondent Whether respondent may succeed in application Whether court should hear evidence in a trial The petitioner and the respondent were judicially separated pursuant to a court order. The petition of the wife, filed on 25 January 1991, alleged three of the facts mentioned in s 54(1)(a)(c) of the Law Reform (Marriage and Divorce) Act 1976 ('the Act') and included a prayer for damages against the corespondent for alleged adultery with the respondent. In her affidavit in support of the petition, she deposed that both she and the respondent were separated since 7 December 1986 on the ground of unreasonable behaviour on the part of the respondent. In answer to the petition of the wife, the respondent denied all the allegations of facts put forward by the wife in her petition and by way of his answer pleaded that their marriage had irretrievably broken down as they had lived apart for a continuous period of at least two years immediately preceding the presentation of the petition of the wife, ie since 7 December 1986. Consequently, the respondent prayed for the dismissal of the petition, a stay of the proceedings of the petitioner's petition and the dissolution of their marriage based on his answer.

The petitioner filed her reply to the answer on other matters pleaded therein but it contained no denial or admission on the allegation that they had lived apart for that period of time as alleged by the husband. For remaining silent on the issue, the respondent contended that the petitioner had admitted to the alleged fact. The respondent 1994 2 MLJ 139 at 140 applied for an order that the proceedings arising from the prayer for dissolution of marriage contained in the petition be stayed and that the respondent be at liberty to proceed on the prayer of the answer as an undefended suit. Held, dismissing the application:

(1) There is only one ground for divorce under the Act, ie on the ground that the marriage had irretrievably broken down. At the hearing of a petition for a divorce, the court is required to inquire into the facts alleged in the petition, as causing or leading to the breakdown of the marriage and if satisfied that the circumstances make it just and reasonable to do so, it should make a decree for the dissolution of the marriage. But it does not mean that the court hearing a petition for divorce should not hold the marriage to have broken down irretrievably unless the petitioner satisfied the court of one or more of those four listed facts.

(2) Here, the petitioner and the respondent allege different facts to establish that their marriage has broken down irretrievably. The respondent denied all the facts alleged by the petitioner. Therefore, if the petitioner wanted the court to make a decree for the dissolution of their marriage based on those facts presented in her petition, it was for her to satisfy the court, at the trial, that the circumstances made it just and reasonable to make such a decree having regard to her alleged facts as provided in ss 53 and 54 of the Act.

(3) As the petitioner in her reply to the answer did not make a denial or admission on the respondent's allegation that they had lived apart for that period of time, the respondent contended that the petitioner had admitted to the alleged fact. In the circumstances, the respondent had the onus to satisfy the court on the same principle. Therefore, the socalled admission by the petitioner that they had lived apart for a continuous period of at least two years immediately preceding the presentation of the petition would not entitle the respondent to a decree. The effect of granting the order sought by the respondent would amount to a provisional granting of the decree subject to the respondent proving those facts at the trial. The effect would also preclude the petitioner from adducing evidence to satisfy the court that the circumstances made it just and reasonable to grant her a decree asked for based on the facts alleged by her in the petition.

(4) In order to arrive at the correct decision, the court has to hear the evidence in a trial to satisfy itself as to the proof that the marriage had broken down irretrievably so as to permit it to grant a decree of dissolution of the marriage either on the evidence of the petitioner or that of the respondent. There was a triable issue in the petition of the petitioner which involved the claim for damages from the co-respondent. 1994 2 MLJ 139 at 141

Obiter:

(1) The mere fact that both parties have agreed on any one or more of those facts does not clothe the court with the power to make the decree for the dissolution. The court has to take into consideration other circumstances as mentioned in s 54(2) of the Act before it can exercise the power to grant the decree.

(2) The respondent in a petition for divorce need not file a separate petition to commence the proceedings. The answer to the petition of the petitioner would be regarded as the petition of the respondent for the purpose of obtaining relief under the Act. So, a respondent's answer to a petition which contained allegations of any of the four facts in s 54(1) as causing or leading to the breakdown of the marriage is a matter for the court to have regard to in determining the relief sought by the respondent as if his answer to the petition is a petition by him for the dissolution of his marriage with the original petitioner on the ground that the marriage had irretrievably broken down. This is to avoid a multiplicity of proceedings.

Notes For cases on the irretrievable breaking down of marriages, see [1989] Mallal's Digest 844; [1990] Mallal's Digest 654-655 and [1991] Mallal's Digest 1171-1172.

ABDUL KADIR SULAIMAN J This is an application by the respondent for an order that the proceedings arising from the prayer for dissolution of marriage contained in the petition be stayed and that the respondent be at liberty to proceed on the prayer of the answer as an undefended suit. The petition of the wife filed on 25 January 1991, alleges three of the facts as mentioned in s 54(1)(a)(c) of the Law Reform (Marriage and Divorce) Act 1976 ('the Act') and includes a prayer for damages against the co-respondent for alleged adultery with the respondent. In her affidavit in support of the petition, she deposed that both the petitioner and the respondent were separated since 7 December 1986 on the ground of unreasonable behaviour on the part of the respondent. There is no allegation that the parties have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition, which is a fact listed in sub-s (1)(d) of the section. In answer to the petition of the wife, the husband respondent denies all the allegations of facts put forward by the wife in her petition but by way of his answer pleads that their marriage has broken down irretrievably. The alleged fact as causing or leading to the breakdown of the marriage was that they both had lived apart for a continuous period of at least two years immediately preceding the presentation of the petition of the wife, ie since 7 December 1986, which is the same date given by the petitioner in her affidavit in support of the petition. Consequently, the respondent prays in his answer to the petition for the dismissal of the petition, the stay of the proceedings of the petitioner's petition, and the dissolution of their marriage based on his answer. The wife filed her reply to the answer of the husband on other matters pleaded therein but [it] contains no denial or admission on the allegation that they have lived apart for that period of time as alleged by the husband. For remaining silent on the issue, the respondent contends that the petitioner had admitted to the alleged fact. The background leading to the petition and the answer is that prior to the filing of the petition by the wife, both parties were judicially separated pursuant to a court order of 14 June 1986. Since the date of the order, they have not resumed cohabitation and the decree has been continuously in force.

To arrive at the proper decision on this application of the respondent, it is best to have a look at the law relating to the matter. Under the Act, the power of the court to grant the dissolution of the marriage is covered in ss 53 and 54. There is only one ground for divorce under the Act. It is on the ground that the marriage had irretrievably broken down. At the hearing of a petition for divorce, the court is required to 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, it shall make a decree for the dissolution of the marriage. In other words, it is not dependent on the proof of any particular factual situation as is found in s 1(2) of the British Matrimonial Causes Act 1973 ('the British Act') to establish that the marriage has broken down irretrievably. What concerns the court is that it is to be satisfied after an inquiry into the facts and circumstances alleged in the petition as causing or leading to the breakdown 1994 2 MLJ 139 at 145 of the marriage, that it makes it just and reasonable to make a decree for the dissolution of the marriage. In such an inquiry the court is required to have regard to any one or more of the four facts listed in items (a)(d) of s 54(1). By that it means that any one or more of those facts may assist the court in determining whether or not the marriage has broken down irretrievably. But it does not mean that the court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of those four listed facts. The requirement of the Act is, therefore, different from the provisions found in s 1(2) of the British Act which is as follows: The court hearing a petition for divorce shall not hold the marriage to have broken down irretrievably unless the petitioner satisfies the court of one or more of the following facts, that is to say (a) that the respondent has committed adultery and the petitioner finds it intolerable to live with the respondent; (b) that the respondent has behaved in such a way that the petitioner cannot reasonably be expected to live with the respondent; (c) that the respondent has deserted the petitioner for a continuous period of at least two years immediately preceding the presentation of the petition; (d) that the parties to the marriage have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition (hereafter in this Act referred to as 'two years' separation') and the respondent consents to a decree being granted; (e) that the parties to the marriage have lived apart for a continuous period of at least five years immediately preceding the presentation of the petition (hereafter in this Act referred to as 'five years' separation'). The effect of the aforesaid sub-s (2) of the British Act is that the court cannot hold the marriage to have broken down irretrievably unless any one or more of the above-mentioned facts is proved by the petitioner. Once the petitioner has proved any one or more of those facts, a presumption will arise of the irretrievable breakdown of the marriage. The onus is on the party who alleges that the marriage has not irretrievably broken down. Whereas under the Act, the court is required only to have regard to one or more of the four facts listed in s 54(1), so that it may help the court in satisfying itself that the circumstances make it just and reasonable to make a decree for the dissolution of the marriage. However, if it should appear to the court that in all the circumstances, it would be wrong to dissolve the marriage even after the petitioner has established any one or more of those four facts mentioned in s 54(1), it shall dismiss the petition: see s 54(2) of the Act. Therefore, the mere fact that both parties have agreed on any one or more of those facts, does not clothe the court with the power to make the decree for the dissolution. The court has to take into consideration other circumstances as mentioned in s 54(2) of the Act before it can exercise the power to grant the decree.

By s 60 of the Act, the respondent in a petition for divorce need not file a separate petition to commence the proceedings. The answer he made to the petition of the petitioner would be regarded as the petition of the respondent for the purpose of obtaining a relief under the Act. So a 1994 2 MLJ 139 at 146 respondent's answer to a petition which contains allegations of any of the four facts as causing or leading to the breakdown of the marriage is a matter for the court to have regard to in determining the relief sought by the respondent as if his answer to the petition is a petition by him for the dissolution of his marriage with the original petitioner on the ground that the marriage has irretrievably broken down. This to my mind is to avoid a multiplicity of proceedings. In this present case, both the petitioner and the respondent claim that their marriage has broken down irretrievably and they both want their marriage to be dissolved. The petitioner in her petition and the respondent in his answer to the petition allege different facts to establish that their marriage has broken down irretrievably. The husband respondent denies all the facts alleged by the wife petitioner. In the circumstances, if the petitioner wants the court to make a decree for the dissolution of their marriage based on those facts presented in her petition, it is for her to satisfy the court that the circumstances make it just and reasonable to make such a decree having regard to her alleged facts as provided in ss 53 and 54 of the Act. This she must do at the trial. In regard to the allegation of fact by the respondent in his answer to the petition for supporting the ground of irretrievably broken down marriage, the wife petitioner was silent in her reply to the answer put forward by the respondent. She neither admits nor denies the allegation. In the circumstances the respondent has the onus to satisfy the court on the same principle. The respondent contends that by her silence, she is deemed to have admitted to those fact alleged by the respondent. Even if this is so, as stated above, it does not follow that the court as a matter of course will make a decree in his favour unless the court is satisfied that the circumstances make it just and reasonable to do so. The court will have to consider other factors as required by the Act to satisfy itself before granting the decree. Therefore merely on the basis of the so-called admission by the petitioner that they have lived apart for a continuous period of at least two years immediately preceding the presentation of the petition will not entitle the respondent to a decree. The effect of granting the order sought by the respondent, would amount to a provisional granting of the decree subject to the respondent proving those facts at the trial. That is not the law of the land. The effect would also preclude the petitioner from adducing evidence to satisfy the court that the circumstances make it just and reasonable to grant her a decree asked for, based on the facts alleged by her in the petition. One of the facts alleged by her is that the respondent had committed adultery. In her petition, she has cited a co-respondent as a party on account of the allegation and she claims damages against the co-respondent. If she is prevented from defending and her petition is stayed, as prayed for by the respondent, how is she to establish the liability of the co-respondent in damages, as she is precluded from adducing evidence at the trial except for matters allowed by r 40 of the Divorce and Matrimonial Proceedings Rules 1980 ('the Rules'). The court is entitled to have regard to any one or more of the allegation of facts by the petitioner. 1994 2 MLJ 139 at 147 To enable the court to be appraised of the matter, there ought to be a full trial or inquiry into the matter in order to arrive at the satisfaction that the circumstances make it just and reasonable to make a decree for the dissolution of the marriage. After all, it was the wife who initiated the proceedings by her petition. It is not correct, therefore, as so submitted by the learned counsel for the applicant that it would serve no purpose to proceed with a full trial to enquire into the petitioner's allegation of adultery merely for the purpose of satisfying the feelings of the petitioner. I do not think in this respect that by refusing the application of the respondent, the petitioner is given the liberty to satisfy her feelings. The respondent relies on the authority of Grenfell v Grenfell,1 a decision of the Court of Appeal in England based on the British Act, in support of his application. On my part, in the light of the distinct requirement for the granting of a decree of dissolution of marriage between the provisions contained in the British Act and in our Act in regard to proof of irretrievable breaking down of the marriage as mentioned above, the case is distinguishable. In Grenfell 's case,1 the fact that the marriage has

broken down irretrievably is presumed the moment Mrs Grenfell admitted to the fact alleged by her husband, the respondent. Unless rebutted, the decree for the dissolution must be made by the court. Her objection on grounds of grave hardship to her if the cross-petition of the respondent for dissolution of the marriage is allowed cannot stand. She petitioned for a divorce but on the cross-petition for same, she was trying to resist after admitting to the fact alleged by the respondent. She gave the particulars of the alleged hardship as follows: (1) she is of the Greek Orthodox faith; and (2) as a practising Christian her conscience would be affronted if the marriage were to be dissolved otherwise than for grounds of substance whereby the true cause of the breakdown of the marriage will be determined by the court and the decree pronounced accordingly. The Court of Appeal in that case had to consider whether the wife should be permitted to go on with the allegation of behaviour in her petition in view of what had happened. According to the court, by opposing the cross-petition, she was blowing hot and cold because in the first place she petitioned for divorce but by her opposition she was in effect protesting against the dissolution of the marriage on the ground of grave hardship to her. In giving the answer, the court at pp 566-567 had this to say: Parliament then went on in s 1(2) to prescribe five separate facts, one of which has to be established in order to prove that the marriage has broken down irretrievably On proof of any of those five (and Parliament plainly chose each of those five facts as being facts which would raise in any reasonable mind a presumption that the marriage had broken down) Parliament provided that the court shall grant a decree of divorce unless it is satisfied on all the evidence that the marriage has not broken down irretrievably. In other words, on proof of any one of the five facts, there is a presumption, rebuttable it is true, of irretrievable breakdown, and the onus is quite plainly on the party who is asserting that the marriage has not irretrievably broken down to satisfy the court by evidence that 1994 2 MLJ 139 at 148 the presumption should be treated as rebutted. It is not, therefore, an adversary proceeding in any way comparable to the proceedings in other divisions of this court. Whichever side proves a fact under s 1(2) proves prima facie that the marriage has irretrievably broken down, and the court is not, in my judgment, concerned with anything else. There is no point, as I see it, in a case like this in conducting an enquiry into behaviour merely to satisfy feelings, however genuinely and sincerely held by one or other of the parties. To do so would be a waste of time of the court and, in any event, would be running, as I think, counter to the general policy or philosophy of the divorce legislation as it stands today. That is the position as regards the British Act. But as stated earlier, our Act is different from the British Act in determining that the marriage has broken down irretrievably. It is the petitioner in our case which initiates the petition for divorce alleging various grounds which the court under the Act has to take into consideration in arriving at the decision as to whether to grant the decree of dissolution sought. And the respondent by way of his answer to the petition by the wife also prays for the dissolution of the marriage but on a different alleged fact. In order to arrive at the correct decision in the matter, the court will have to hear the evidence in a trial to satisfy itself as to the proof that the marriage has broken down irretrievably so as to permit it to grant a decree of dissolution of the marriage either on the evidence of the petitioner or that of the respondent. There is a triable issue in the petition of the wife petitioner which involves the claim for damages from the co-respondent related to the petitioner's marriage with the respondent. If her petition is stayed then this issue remains. Claim for damages by a petitioner against a co-respondent is not a cause of action by itself. It is given by the Act. It is, therefore, ancillary to her petition for divorce. If her petition is ignored or stayed and the court proceeds with the hearing based on the answer of the respondent undefended, and if the respondent succeeds then a decree will be granted to him. In such a situation, how is the petitioner to proceed to prove damages against the co-respondent because the issue of the granting of the decree for dissolution of her marriage with the respondent had been decided and a decree made? In the circumstances, the application of the respondent by this summons-in-chambers must necessarily fail. I, therefore, dismiss the application with costs to the petitioner in any event. I further order that either of the parties apply under r 29 of the Rules for a summons for directions with a view to set down the petition for trial. Application dismissed with costs to the petitioner.

Application dismissed.