District Judge Wong Keen Onn:
Introduction
This is an appeal by the Plaintiff husband against the decision dismissing his application to rescind the Interim Judgment granted on 28 October 2013.
Divorce proceedings
The parties are Indian Nationals who were married on 30 November 2007 in India. There are no children born to the marriage. The Plaintiff (also referred to as the “husband”) came to live in Singapore since 2002 and became a Singapore Permanent Resident (PR) from 14 July 2003. Shortly after their marriage in 2007, the Defendant wife (referred to as “Defendant” or the “wife”) moved to live with the Plaintiff in Singapore. The Plaintiff filed the writ of divorce on 3 May 2013 in Singapore (D2215/2013/Z) to dissolve their marriage on the fact the marriage had broken down irretrievably in that the Defendant wife had behaved in such a way that he (the husband) could not be reasonably be expected to live with her. The Defendant wife filed her defence on 13 June 2013 as she wanted to explore reconciliation with the Plaintiff. Plaintiff’s counsel then set the matter down on 1 August 2013 for a contested divorce hearing. However, at the pre-trial conference on 8 October 2013, the wife withdrew her defence. The wife’s counsel indicated that the wife would not object to the divorce proceedings to be heard on an uncontested basis. The Plaintiff counsel then filed a Request for Dispensation of Parties’ Attendance at the Uncontested Divorce hearing (Form 21C) on 14 October 2013.
On 28 October 2013, the Singapore Court granted an Interim Judgment to dissolve the marriage on the fact of the Defendant’s unreasonable behaviour and adjourned the ancillary matters to Chambers and a pre-trial conference (ancillary matters ( the “APTC”) was scheduled on 12 December 2013. At the APTCs on 12 December 2013 and 9 January 2014, the Plaintiff counsel sought for and obtained extensions of time to file his First Affidavit of Assets and Means (AOMs). The Court then directed the parties to file and exchange their First Affidavit of Assets and Means (AOMs) by 30 January 2014 and to attend a further APTC on 13 February 2014. The Defendant filed her 1st AOM on 29 January 2014 but the Plaintiff failed to do so as directed.
On 14 February 2014, the Plaintiff filed this summons 2079/2014 to set aside the Interim Judgment and to be granted leave to withdraw the divorce proceedings in Singapore. This was objected to by the Defendant. The Plaintiff filed 3 affidavits dated 11 February 2014, 2 May 2012 and 30 June 2014 with 2 affidavits from the Plaintiff’s expert on Indian Law Uday Sinha dated 2 My 2013 and 27 June 2014. The Defendant responded with 2 affidavits on 28 February 2014 and 2 June 2014 and submitted 2 affidavits from his expert on India law G C Sharma (affirmed on 28 February and 30 May 2014), 1 affidavit from the Defendant’s father affirmed on 28 February and 1 affidavit by an Interpreter affirmed on 21 April 2014.
Orders Made
I heard the Plaintiff’s application in summons 2079/2014 on 23 July 2014 and dismissed it. The Plaintiff has filed an appeal against the orders. I now set out the reasons for my decision.
Reasons
Plaintiff husband’s arguments
The Plaintiff counsel submitted that the Interim Judgment dated 28 October 2013 ought to be rescinded on the following bases: The Defendant wife (“Defendant” or “wife”) had made contradictory statements to the Indian police and to the Singapore courts as to why she withdrew her defence in the Singapore proceedings. In a letter made to the Indian police in Dalanwala, India on 8 November 2013 after a counselling session, the wife had alleged that she received a threat to kill her and the Plaintiff and his parents had demanded for money from her whereas in the Singapore proceedings, the wife had said that her reason for the withdrawing her defence was that “she suffered from emotional and mental impact of the proceedings and the lack of emotional support from her family and friends who were in India”. Secondly, the Plaintiff claimed he was unaware of the consequences of the complaint made against him in India at the time the Interim Judgment was granted. Although the complaint was filed by her father, the Defendant was in reality the applicant in the Indian proceedings. Thirdly, the Defendant wife had commenced “proceedings in India” to seek redress from the police in India against him “for not returning the wife’s streedhan”: That, in the Plaintiff’s view, amounted to the wife seeking to enhance her financial relief. Fourthly, the Plaintiff had genuine concerns that the wife might be able to re-open the case in India even if the ancillary matters were dealt with in the Singapore courts. In his view, it was better that the matters be dealt with in one forum and the Indian Courts ought to be the forum of choice as the marriage was conducted in India as per the Hindu Marriage Act.
As for the Defendant’s submissions, she was resisting the application on the following grounds, namely : The proceedings in India were criminal in nature and initiated by the father but were irrelevant to the proceedings in Singapore. Second, any Interim Judgment from the Singapore Courts would be final and conclusive in India and not open for challenge. Moreover the intention of the Plaintiff’s actions in filing the summons was to delay the Singapore proceedings and to prolong the impact of adverse impact of the litigation on the Defendant. The Plaintiff was aware of the complaint in India but yet continue to instruct his solicitors to continue with the Singapore divorce proceedings. The claim of the correct forum was rather suspicious as the Plaintiff did not apply to withdraw the proceedings at all There was also undue delay of 4 months in taking out this setting aside application There was no new disclosure of material facts to vitiate the basis for granting of the Interim Judgment. First, the India proceedings are irrelevant to the Singapore divorce proceedings as the complaint to the police is made by the Defendant’s father for alleged breaches of the section 406 and 498A of the Indian Penal Code. There were no on-going proceedings in India at the present as the Defendant’s father had been informed by the police station that the police is unable to pursue any further action on the complaint as the Interim Judgment had dissolved the marriage between the Plaintiff and the Defendant Foreign judgments are conclusive and binding in India and that the Plaintiff’s application was motivated by bad faith in putting the Defendant under further immense stress by engaging the Defendant to commit financial resources which she did not have keep up with the plaintiff in his litigious pursuits.
My decision
The applicable test
In order to succeed in an application under section 99(2) Women’s Charter to rescind an Interim Judgment, an applicant is required to show cause why the judgment should not be made final “by reason of the material facts not having been brought before the court” (“the material facts test”). The test of “material facts” requires the applicant to go beyond showing a good defence to the claim. It is a stricter test than the traditional “Saudi Eagle test” on whether to set aside a default judgment. The Interim Judgment (or decree nisi) might only be rescinded if it was shown that material facts had not been brought before the court would vitiate the Interim Judgment: per Judith Prakash J. in AON v AOO [2011] 2 SLR 926 at [11]. The High Court held that a stricter test “was warranted when the consequence of the judgement sought to set aside was to change the status of a married person”.
I turn now to the cases cited by counsel in which the Interim Judgments have been rescinded for various reasons. Clearly, the undisclosed material facts must be sufficient to attack the root or basis of an Interim Judgment. The first case is Chng Yock Eng v Kwa Teck Meng [2004] SGDC 268 which was referred to in AON v AOO (supra) at [11, 12]. In Chng Yock Eng’s case, the respondent husband did not enter appearance in the uncontested divorce proceedings taken up by the wife. However, when he discovered that the matrimonial flat was sold pursuant to the ancillary order, the respondent husband then applied to set aside the decree nisi, decree absolute and ancillary matter order obtained by the petitioner wife. The divorce was obtained on the basis of 2 years’ desertion by the husband but in actual fact, the wife had, prior to the writ of divorce, voluntarily signed a deed of separation together with the husband at the Legal Aid Bureau, which act was incompatible to the ground in her petition for divorce. This was a material fact that was not brought to the attention of the court granting the divorce. Hence, the Court rightly set aside both the decree nisi and the decree absolute on the basis that the wife had not disclosed to the court the material facts (in this case the wife’s act of signing the deed of separation) which were incompatible with the ground on which she had petitioned for divorce.
In Racaza Juliet v Caton David Andrew [2004] SGDC 273, the Interim Judgment was rescinded as it was subsequently found that there was no valid marriage in the first place. The wife’s first marriage had not been finalised when she married the applicant and she had no capacity to enter into the marriage with the applicant.
In the earlier case of Heng Joo See v Ho Poi Ling [1993]3 SLR 850, the wife had been granted a decree of nullity on the alleged fact that the husband had wilfully refused to consummate the marriage. It was subsequently disclosed that the parties did consummate the marriage after they were married. That new disclosure was a material...
