PUTRAJAYA: Former beauty queen Pauline Chai Siew Phin does not enjoy gender discrimination protection that is guaranteed under the Federal Constitution because she is no longer a Malaysian citizen.
This was pointed out in Chai's appeal against an order favouring her estranged husband, tycoon Tan Sri Khoo Kay Peng, to have his divorce case heard in Malaysia.
The High Court allowed Khoo's bid last year to be exempted from a conciliatory body before divorce.
Yesterday, Khoo's lead counsel Datuk Dr Cyrus Das told an appellate court that Chai renounced her Malaysian citizenship in November last year, causing her to lose the benefit of such a protection.
He said two provisions in the Law Reform (Marriage and Divorce) Act 1976, enforced in March 1982, recognised the common law rule that the wife's place of residence was dependent on her husband.
"The fact that Parliament did not introduce legislative provisions to abolish the common law rule of a wife's dependent domicile when enacting the Law Reform Act reflects a clear statutory policy that it still continues to apply in the country," said Dr Das.
He argued that the Royal Commission on Marriage Reform for Non-Muslims also did not recommend the abolition of common law rule on the wife's domicile.
He said the trial judge was correct in deciding that the court could hear the divorce case because Khoo's domicile is in Malaysia.
Dr Das argued that Section 49 of the Law Reform Act comes to the aid of abandoned wives, where they could petition for divorce independently irrespective of the husband's domicile.
He said any changes to the family law must be legislated and not be made by judicial decisions.
"A judge cannot just sit and change areas of family law," argued Dr Das before a three-man panel chaired by Justice Balia Yusof Wahi.
The other judges on the Bench were Court of Appeal judges Justice Dr Hamid Sultan Abu Backer and Justice Abdul Rahman Sebli.
Chai, 68, wanted a British court to decide on the divorce proceedings, claiming she had not been living in Malaysia since 1980 and was currently a resident of the United Kingdom. She is on a visitor's pass.
The former Miss Malaysia/International 1969 filed the divorce proceedings in England on Feb 14, 2013 against her husband, seeking half of his wealth as settlement.
She filed the divorce petition on grounds of unreasonable behaviour against Malaysia's 36th wealthiest man, according to the Forbes 2013 list of Malaysia's richest.
It was reported that Chai would get a smaller portion in matrimonial property if the case were decided according to Malaysian law.
Justice Balia said the panel would deliver judgment today.