A businesswoman was granted a divorce but failed to obtain a court order compelling a DNA test on another woman’s child, whom she alleges was fathered by her husband in an extramarital affair.
Justice Evrol Mariette Peters ruled that the businesswoman, wife of a “Datuk Seri”, had failed to consider the child’s welfare, adding that the order was not in its best interests.
“Rather, it served solely to advance the respondent’s (businesswoman) own personal agenda,” Peters said in a 46-page judgment.
The judge said DNA tests should not be taken lightly, particularly if not sought by a child seeking to determine paternity.
Peters, now a Court of Appeal judge, said case law has repeatedly affirmed a child’s right to bodily autonomy and privacy, which cannot be compromised merely to substantiate allegations of infidelity in matrimonial proceedings.
To protect the privacy of the parties, the court anonymised the identities of the couple and “COB”, a reference to the child’s mother, also cited as a party in the proceedings.
Peters said the wife had intended to establish the existence of an adulterous relationship between the husband and COB “indirectly” by proving that he was the child’s biological father.
The facts of the case revealed that the couple’s marriage was solemnised in 2007, from which they had a son. The wife also has two other children from a previous marriage.
However, the marriage broke down in 2020 amid allegations of adultery and unreasonable behaviour, which saw the husband leave the matrimonial home and initiate divorce proceedings one year later.
The wife applied to compel that the DNA test be carried out in the midst of the trial.
Peters said that while it was established that the husband had an extramarital affair with COB, the wife had failed to plead critical facts in her court documents.
The judge also said the wife had, to some extent, “tolerated” the husband’s adulterous relationship by continuing to cohabit with him and “conduct herself as his wife”.
Consequently, the judge said, the wife was not entitled to claim damages from COB over the breakdown of her marriage.
Peters, however, allowed the wife to secure an 80% share of the matrimonial assets, with the balance going to the husband.
“Having considered all relevant factors, I concluded that it was just and equitable to limit the (husband’s) entitlement to 20% of the matrimonial assets.
“This was in recognition of (his) assistance to the (wife) in certain administrative matters, and the undeniable fact that the (wife) had, to some extent, benefited from the ‘Datin Seri’ title derived from the (husband’s) conferment as a Dato’ Seri.
“The allocation of 20%, therefore, in my view, reflected a generous assessment of his minimal involvement in the marriage, and also took into account his egregious conduct and lack of credibility,” the judge said, adding that a higher apportionment in his favour would constitute a miscarriage of justice.
The businesswoman and her husband were granted joint guardianship of their son, with sole guardianship given to her. The husband was also ordered to pay monthly child maintenance of RM3,000.
However, the wife’s claim for RM5,000 as monthly spousal maintenance was dismissed.
