“My husband is in a relationship with another woman in India, what can I do? I wish to divorce but I am not satisfied, I want to sue the woman who cause the breakdown of my family, can I do so?”

In Malaysia, it only recognizes monogamous marriage which means a husband can only have one wife and vice versa while the marriage is still subsisting no matter the second marriage is contracted within or outside Malaysia according to S 5 of Law reform (Divorce and Marriage) Act 1976 (hereinafter referred it as “LRA”), except for Muslims because this Act is not applicable to them. So, this article is only applicable for non-Muslims marriage.

According to S 6 of LRA, any polygamous marriage shall be void and women who marry with a married man while his marriage is still subsisting shall have no right for inheritance and succession upon the death of such married man. Thus, the woman who is a second wife of your husband will not be able to claim for any property from your husband even if they have children between them, the child will become an illegitimate child. It shall be noted that the polygamous marriage is not only void, your husband is deemed to commit an offence and shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine according to S 494 of Penal Code.

As a wife, you may petition for judicial separation or divorce. In considering whether to grant a petition for judicial separation, the court may take into account one or more of the factors which clearly stated under S 54(1) (a) of LRA. The petitioner is able to petition for divorce if there is breakdown of marriage by the act of committing adultery by the respondent or the petitioner found it intolerable to live with respondent or the petitioner has been deserted by the respondent for a continuous period of at least two years or the parties to the marriage have live apart for a continuous period of at least two years.  As a petitioner, you must gather sufficient evidence so as to support your petition for court to grant your divorce.

Since there is an adultery committed, you may also claim damages from the adulteress. Thecourt may in his discretion claim damages against co-R if there is sufficient evidence to prove the adultery and if the court is satisfied with the disclosure of evidence being laid. However, if you fail to bring enough proofs, co-R may be discharged from the proceeding.

            One special situation to be highlighted is that for adulteress, wife is not allowed to sue the woman for seducing her husband, however, a man can be found guilty for the crime under S 498 of PC if he seduces or takes a married woman away.