New feat for domestic violence victims in Malaysia

PHOTO: The New Paper

ON Friday, Aug 28, the country was so caught up in the Bersih 4 rallies that weekend that a landmark decision of the Kuala Lumpur High Court went unnoticed by the public.

Many people would be interested in the divorce case because of the allegations of infidelity, mental instability, a secret bank account, the judge's finding of a pretend sale of properties, and the court ordered 50-50 division of the matrimonial assets which include four pieces of land in Raub and shares in New Merdeka Hotel, Hotel Tiara and Asrama Megaria on Jalan Raja Muda Abdul Aziz near HKL.

What is more important, however, is that for the first time here, a judge gave compensation for injuries caused by domestic violence, in addition to maintenance for the ex-wife and teenaged daughter.

In dissolving the marriage of 27 years, Justice Noraini Abdul Rahman ordered TTH to pay CYY RM4,000 (S$1,300) for the injuries he caused.

TTH, who denied any acts of violence in his pleadings, instead made several allegations about CYY in reply to her divorce petition filed on May 10, 2013.

He accused her of being a jealous wife, overly inquisitive, a gambler, and possessing a secret bank account with over RM4mil in it.

But Justice Noraini noted while CYY produced 10 witnesses, TTH "did not give any evidence."

The one witness he called only testified about the sale of certain matrimonial properties, she said.

In an interview, CYY's counsel Chew Siew Ting and Arina Ong Xin Yi said this was not the first time a claim for damages for domestic violence was made but it was the first time it was awarded.

It was rejected in Sathia Vadivaloo v Megendran Vellasamy (2013) because the claim was made under the Law Reform (Marriage & Divorce) Act 1976 and the law did not provide for that.

TTH's counsel argued the same.

But Justice Noraini disagreed: "I do have jurisdiction to hear matrimonial matters as it comes within the civil jurisdiction of a High Court.

"I am of the opinion that damages for domestic violence can be dealt with by this court," she ruled, adding that the title of the suit cited Sections 2 and 10 of the Domestic Violence Act 1994 (DVA).

CYY's lead counsel Honey Tan cited injury cases from motor vehicle accidents, which was objected to by TTH's defence team, comprising Bernard Scott as lead counsel and KC Hue and Dr Siva Sargaran Nadarajah.

However, Justice Noraini held that "there were injuries, and it doesn't matter how they were caused, either by motor vehicle accident or domestic violence."

She said there was evidence during the trial that domestic violence occurred many times throughout the marriage but she would only award compensation where there was a medical check-up and report. Here, two doctors had testified.

Women's Aid Organisation executive director Sumitra Visvanathan said the compensation was a recognition by society.

"We would have liked a higher quantum, for courts to be more cognisant of the deleterious effects of domestic violence on the survivor.

"It calls to mind a case where our client sustained serious injuries when her husband attacked her with a parang and he served two months in jail. Subsequently, when he was found in possession with a similar weapon, he received a five-year jail sentence!"

Hakam president Datuk Ambiga Sreenevasan said the RM4,000 award was symbolic."How does one put a monetary value to the injury suffered by a wife who expected love and respect. Intimate partner violence is a betrayal.

"Victims get compensated when they get injured but when it comes to a wife, many of them feel they don't deserve it.

"People also raise an eyebrow when a wife is awarded money for being abused because they think it is normal or worse they claim she must be lying to get money!

"This award recognises domestic violence for what it is...a crime."

Does this mean any household member who is a victim of domestic violence can sue for damages in a civil court, even if there is no prosecution in a criminal court?

"Yes, if the matter is commenced in the civil court and domestic violence is proved, compensation may be awarded under Section 10 of the DVA," said Association of Women Lawyers president Goh Siu Lin.

The judge awarded damages for the one incident where there was corroborating medical evidence. Does this mean victims need to go to the hospital each time they are hit?

"Based on this judgment - if there are physical injuries, then a medical report should be available to corroborate the claim," replied Goh.

"If non-physical injuries, it may be prudent to have a psychologist's/therapist's report to explain, for example, psychological trauma/depression resulting from domestic violence."

She advised victims to keep records of medical expenses, loss of earnings (absenteeism from work due to physical and non-physical injuries), medical certificates, value of property destroyed/damaged and reasonable expenses if the victim has to relocate for safety.

This case involved wife battery but it can be a precedent in cases of abuse of elderly parents because Section 2 of the DVA protects spouse, former spouse, a child, incapacitated adult, and any other member of the family, said Goh .

This ground-breaking award for damages may create greater awareness because it highlights the hidden financial cost of domestic violence to the victim and the family.

"But we need more public awareness that domestic violence is a violation of the human rights of the victim/family to be able to live free from fear and violence," said Goh.