BDA v BDB

• Jurisdiction: Singapore
• Judge: Chao Hick Tin JA
• Judgment Date: 18 October 2012
• Neutral Citation: [2012] SGHC 209
• Court: High Court (Singapore)
• Docket Number: District Court Appeal No. 19 of 2012
• Published date: 23 October 2012
• Year: 2012
• Hearing Date: 07 August 2012,17 August 2012
• Plaintiff Counsel: Koh Tien Hua (Harry Elias Partnership LLP)
• Defendant Counsel: Raymond Yeo (Messrs Raymond Yeo)
• Subject Matter: Family Law,Women's Charter,Conflict of Laws,Natural forum
• Citation: [2012] SGHC 209

Chao Hick Tin JA:

This is an appeal filed by BDA (“the Wife”) against the decision of a District Court judge (“the Judge”) where the Judge stayed an application for maintenance filed by the Wife against her husband, BDB (“the Husband”), under s 69 of the Women’s Charter (Cap 353, 2009 Rev Ed) (“Women’s Charter”) on the ground of forum non conveniens.

Facts

The Husband and the Wife were married in India in February 2005. Both of them are legally qualified to practise law in India. In addition, the Wife is also qualified to practise as a solicitor in England and Wales. Within six months of the marriage, the parties moved to Hong Kong in pursuit of their careers. In January 2008, the parties relocated themselves to Singapore. Their son was born in Singapore in January 2010. Both the Husband and the Wife lived with the son in the matrimonial home until October 2010, when the Wife took the son and left for India. Prior to her departure from Singapore, the Wife was working at a local law firm as a lawyer. The Husband continues to be employed in Singapore.

The Husband and the Wife are citizens of the Republic of India (“India”), and both hold Indian passports. The Husband and the Wife have been Singapore Permanent Residents (“Singapore PRs”) since 2009. Although the son was born in Singapore, he does not qualify to be a Singapore citizen; he holds an Indian passport and is currently in Singapore on a long-term visit pass. Incidentally, the Wife was also a permanent resident of the United States of America from 1999 to 2009. Apart from bank accounts, the Husband and the Wife both do not own any immovable property in Singapore.

After the Wife’s application for maintenance was filed on 2 September 2011, the Husband filed for divorce in India in around October or November 2011.

Both the Wife and the son are now residing in India. As such, an issue of contention relates to the question of whether the Wife intended to reside in Singapore with the son. In an email to the Husband dated 11 October 2011 (after the Wife’s application for maintenance was filed on 2 September 2011), the Wife requested for her personal belongings, which were left behind in Singapore, to be sent to her in India:

Could you please arrange for all my belongings including clothes, bags, shoes and any items of jewellery which are in the Singapore house to be sent to me at your earliest convenience. If there is [sic] any additional costs involved for the safety of these items to be sent across, please let me know, I will make the payment accordingly.

Thanks.

In reliance on this email, the Husband avers that the Wife had no intention of returning to reside in Singapore. In any event, the Husband says that the Wife, who is well-qualified and remains a Singapore PR, is capable of earning a substantial income in Singapore and does not need to reside with the Husband and be supported by him. He also pointed out that the Wife had, on her own steam and resources, returned to Singapore on two occasions: the first to file the maintenance complaint and the second to attend a mediation session prior to proceedings in the District Court.

On the other hand, the Wife asserts that she intended at all times to reside in Singapore, and had at that point returned to India because of the Husband’s actions. While she was in India, the Husband had threatened to dispose of her personal belongings. She had wanted the belongings to be returned because she realised that the marriage was over. The Wife further alleges that the Husband had withdrawn monies from a joint account, leaving her with “absolutely no funds to return to Singapore” and thus preventing her return.

Decision Below

At this juncture, I pause to note that under s 79 of the Women’s Charter, an application for maintenance under s 69 of the Women’s Charter has to be made by way of a complaint pursuant to the Criminal Procedure Code (Cap 68) (since repealed) (“CPC”) (see [11] below). This therefore raises the question as to whether an application for maintenance under s 69 of the Women’s Charter is a criminal or a civil process. The Judge did not address this issue as it was not raised before him. It is now being raised before me by the Wife who argues that an application under s 69 of the Women’s Charter (hereafter referred to as “s 69 application”) is a criminal process; therefore, the doctrine of forum non conveniens can have no application. I will come back to this issue in just a moment.

The Judge, having weighed the circumstances of the case, found in favour of the Husband and stayed the maintenance application on the ground of forum non conveniens. The Judge relied chiefly on four factors. Firstly, the Wife had no intention of returning to reside in Singapore. Secondly, both the Husband and the Wife were Indian nationals. Although both the Husband and the Wife were Singapore PRs, the son only had a long-term visit pass. Thirdly, the parties had no known immovable assets in Singapore. Fourthly, the mere fact that proceedings commenced in India would take a long time to be heard was insufficient to avoid a stay; furthermore, Indian court orders are enforceable in Singapore.

I will first discuss the question as to whether a s 69 application is a civil or criminal process and then address whether the application can be stayed on the ground of forum non conveniens.

Does the Court have the power to stay proceedings? Maintenance proceedings are civil in nature

Section 79(1) of the Women’s Charter stipulates that:

Procedure

79.—(1) Except as otherwise provided in the rules made under subsection (1A), all applications to a District Court or a Magistrate’s Court under this Part and Part VII shall be made and heard in the same manner and in accordance with the same procedure as applications for summonses are made and heard by the District Court or the Magistrate’s Court under the provisions of the Criminal Procedure Code (Cap. 68) and an application under this Part and Part VII shall be deemed to be a complaint for the purposes of that Code. [emphasis added]

The Wife avers that nothing in the CPC allows a court, in the exercise of its criminal jurisdiction, to stay proceedings on the ground of forum non conveniens. That power to stay proceedings, she contends, is only exercisable in civil proceedings.

A plain reading of s 79 of the Women’s Charter leads to the unassailable conclusion that the provision only governs procedure. While it does not explicitly state that such an application is a civil matter, neither does it state that it is criminal in nature. If one were to look at the real substance of the application, it is for all intents and purposes a civil matter. Neither s 69 nor s 79 of the Women’s Charter provides that a husband commits an offence when he does not maintain his wife or children. It is my opinion that the legislature had via s 79 of the Women’s Charter merely intended to provide a simple and expeditious procedure to enable a wife (and children) to obtain support.

In this regard, there is another provision in the Women’s Charter which is instructive of how one should view a s 69 application. Section 77(1) of the Women’s Charter unequivocally states that, for an s 69 application, an appeal from a District Court or a Magistrate’s Court shall lie to the High Court exercising its appellate civil jurisdiction:

Appeal

77.—(1) Subject to the provisions of this Part and Part VII, an appeal shall lie from any order or the refusal of any order by a District Court or a Magistrate’s Court under this Part and Part VII to the High Court exercising appellate civil jurisdiction under the provisions of the Supreme Court of Judicature Act (Cap. 322). [emphasis added]

This strongly indicates that a s 69 application is essentially civil in nature – it would be strange for criminal proceedings to suddenly transmute, on appeal, into civil proceedings.

In Chew Cheng Swee v Chan Chye Neo [1932] MLJ 5, the court stated that proceedings are only criminal in nature where they may end in imprisonment. It was held (at 9) that “on an application for an order for a monthly allowance by way of maintenance the proceedings are civil since they cannot result in the imprisonment of the husband or father, but can only result in the making or refusal of any order.” In Tan Hock Chuan v Tan Tiong Hwa [2002] 2 SLR(R) 90, Yong Pung How CJ opined on the effect of s 79 of the Women’s Charter in the context of personal protection orders governed by s 65 of the Women’s Charter. The then Chief Justice stated (at [8]) that the “utilisation of criminal procedure in such proceedings does not automatically make them criminal in nature”, and further that “no conviction, fine or criminal record can flow from an application for a personal protection order.” As such, he held that proceedings relating to personal protection orders were not criminal in nature, and that the process of criminal revision was not available to the applicant in that case.

I should also add that in Leong Wai Kum, Elements of Family Law in Singapore (LexisNexis, 2007), the learned author similarly agrees with the foregoing. The author wrote (at p 456):

…

Despite the originating procedure being borrowed from the Criminal Procedure Code, the application for maintenance is civil proceedings [sic]. Once started,...