Heng Joo See v Ho Pol Ling

• Jurisdiction: Singapore
• Judge: Punch Coomaraswamy J
• Judgment Date: 26 August 1993
• Neutral Citation: [1993] SGHC 201
• Docket Number: Divorce Petition No 94 of 1993
• Date: 26 August 1993
• Published date: 19 September 2003
• Year: 1993
• Plaintiff Counsel: Tham Teck Ling (TL Tham & Co)
• Citation: [1993] SGHC 201
• Defendant Counsel: Tan Hee Liang (Tan See Swan & Co)
• Court: High Court (Singapore)
• Subject Matter: Decree nisi granted on ground of nullity due to non-consummation,Circumstances in which inherent power of court may be exercised,Whether orders should be rescinded,Inherent jurisdiction of court,Facts which were before the court when orders were made were later found to be untrue,Rescission of decree nisi,Divorce,Matrimonial flat ordered to be surrendered to HDB,Family Law,Jurisdiction of court to order rescission,0 92 r 4 Rules of the Supreme Court 1990,Decree absolute and decree nisi

In Kwong Sin Hwa v Lau Lee Yen , the Court of Appeal said `in uncontested matrimonial causes, it is wrong for parties to assume that the courts merely rubber stamp their petitions and grant the decree sought. It must be remembered that even in such proceedings the material allegations must be proved to the satisfaction of the court`. The case before me today is an excellent illustration of the need for observance of what the Court of Appeal has said not only by the parties to petitions in matrimonial causes and their respective solicitors and counsel but also by me.

The parties were married on 8 August 1991 and the wife on 16 January 1993 filed this petition for nullity on the ground of non-consummation by reason of wilful refusal by the respondent to consummate the marriage. The husband was served with the petition on 26 January 1993 and filed his memorandum of appearance in person that very day itself. He indicated that he did not wish to answer the petition and went further and stated that he agreed to the two further prayers in the petition. One was a prayer that the petitioner transfer to him her share in a Housing & Development Board (`HDB`) flat at Block 510 Pasir Ris and the other was that he pay the costs of the proceedings.

The petition was on 18 February 1993 set down for trial and came on for hearing before me as an uncontested petition on 15 April 1993.

In the petition, the petitioner had pleaded that at no time did she and the respondent live or cohabit as husband and wife at any address. Paragraph 10 of the petition and the particulars in para 11 read:

(10) That the said marriage has never been consummated owing to the wilful refusal of the respondent to consummate the same.

(11) (1) On several occasions between the date of marriage and 8 August 1992, the respondent refused all advances made by the petitioner, who was willing and ready to consummate the said marriage.

(2) On 30 June 1992, the respondent brought two skirts for the petitioner as birthday presents and had dinner with the petitioner. After the dinner, the parties went to the respondent`s house. In the respondent`s bedroom, the respondent refused further physical contact except kissing.

(3) On or about 8 August 1992, the petitioner attempted to consummate the marriage in the respondent`s bedroom. The respondent pushed the petitioner away and told her `to wait for another five years`.

(4) Since 9 August 1992, the respondent had not contacted or telephoned the petitioner.

As required by the rules, the facts, including those on non-consummation and the reason for non-consummation, were affirmed by an affidavit supplemental to the petition.

At the hearing of the petition, the respondent was absent. The petitioner gave oral evidence and on affirmation verified the facts in her petition. In answer to my question, she said she had known the respondent for ten years before they got married. I asked why she wanted to transfer her share of the flat to him in view of his having treated her as badly as she claimed. She said that having discussed the matter with her parents, she decided there was no point in keeping the flat as she and the respondent will cease to be husband and wife.

Her evidence, verified twice on affirmation, made me conclude:

(a) there was no consummation;

(b) this was because the husband refused sexual relations with her; and

(c) he did so wilfully. I therefore granted her a decree nisi for nullity.

As far as the flat was concerned, the view I took was as the flat was sold by the HDB to the parties on the basis of their getting married, or being married, and as that marriage was declared null and void, the very basis on which the flat was allocated had disappeared. Therefore, the proper thing to do would be for a return to the position before their marriage. The contract between the HDB and a couple who obtain a flat on the basis of a planned marriage has a standard clause that if within three months the parties fail to produce a marriage certificate, the flat was to be surrendered to HDB on such terms as the HDB shall determine. If they were already married when the HDB sold them the flat, that marriage was the foundation on which they were made joint owners of the flat.

I therefore ordered the flat to be surrendered to the HDB on such terms as the HDB shall determine. I did not make any order on costs. There the matter ended as far as I was concerned.

The decree nisi was extracted on 28 April 1993. More than three months after the decree nisi, on 11 August 1993, appearance was entered by solicitors for the respondent. The next day, a summons-in-chambers application was taken out on his behalf with a prayer in effect seeking to vary the order that I had made on the flat when granting the decree nisi. The respondent wanted an order that he be allowed to retain the flat and to receive the petitioner`s interest in it upon his refunding the petitioner`s Central Provident Fund (`CPF`) withdrawals for purchase of the flat. In his affidavit in support, he exhibited many, but not all, documents from the HDB regarding the purchase of the Pasir Ris flat. (From these documents, it was clear that he had, in fact as far back as 2 April 1993, made full refund to her CPF account.)

The respondent deposed that on 5 May 1993 he was served with a copy of the decree nisi and it was only then that he realised that the flat had been ordered to be returned to the HDB. He explained that he did not attend the hearing because he `had the...