Ashvin Jethanand Valiram v Yogita Kishanchand Jethwani (P) (W-02(IM)-1683-10/2023)

This is an appeal by appellant, who is the Husband Respondent in the High Court against the decision of the learned High Court Judge (HCJ) in dismissing his application for a variation of the interim maintenance order dated 9.12.2019 in favour of the Respondent/ Wife Petitioner in the High Court.

In this judgment, the appellant will be referred to as “the Husband” and the respondent will be referred to as “the Wife.”

Both the Husband and Wife were married on 3.7.1999. They are blessed with 2 children, a boy who was born on 9.8.2002 and a girl who was born on 14.12.2004.

The Husband is a shareholder, Director and an Executive Director of the Valiram Group, one of the largest retail empires for luxury and branded goods in South East Asia.

After their marriage, both the Wife and the Husband lived with the Husband’s family home in Sentul where they resided until 2009 before moving to a condominium at a high scale neighbourhood in Kuala Lumpur.

During the marriage, the Wife has been enjoying a luxurious lifestyle provided by the Husband. Among others, she was provided with a chauffeur driven car, full time maid, club membership at the Royal Selangor Golf Club, supplementary credit cards with credit limit of between RM 100,000.00 and RM 250,000.00, overseas vacations, travelling on first class/business class for overseas vacation and expensive hand bags, watches and dresses. The Husband also had purchased a unit at St Regis where renovation costs for the unit was estimated around RM5.5 million.

Over the years their marital relationship deteriorated. The couple had frequent quarrel and conflicts. In October 2017, the Husband left the condominium. The Wife however, remains.

In September 2018, the Wife commenced a divorce proceeding by filing a Divorce Petition. Thereafter, the Wife filed an application for interim relief. On 9.12.2019, the High Court granted her various form of relief. The Husband has been ordered to maintain the Wife and the children of the marriage in the interim, pending the disposal of the divorce petition.

Among others, item 1G of the order dated 9.12.2019 provides that: “The Respondent provides the Petitioner with one (1) supplementary credit card with a credit limit of RM100,000.00 (the credit card) where the Petitioner’s monthly usage is capped at RM 30,000.00 each month save and except for medical expenses of the Petitioner not covered by the medical insurance and the OTP to be sent to the Petitioner’s number directly.”

It must be noted that the order dated 9.12.2019 has also made provisions for the maintenance for the children of the marriage including daily expenses for food and dining, education, insurance, medical expenses and travelling.

The Husband then filed an application to vary the High Court order dated 9.12.2019. The application was dated 26.6.2023. In that application, he sought to vary items 1A, 1B, 1D and 1G of the order dated 9.12.2019. The application was premised on the ground of misrepresentation, mistake of fact or material change of circumstances. For ease of reference, the application for variation is reproduced herewith:

The Husband’s application was allowed in part on 16.11.2023. The learned HCJ only allowed variation in respect of items 1A (with regard to the employment of a driver), item 1B (with regard to the type of car to be provided) and item 1D (regarding the employment of a full-time domestic helper). The learned HCJ did not allow the variation regarding the spending limit of the credit cards i.e. prayer 1.4 of the application relating to item 1G of the order dated 9.12.2019.

Dissatisfied with the decision dated 16.11.2023, the Husband appeals to this court against part of the order. The Notice of Appeal reads as follows: S/N XNt9UmI7mUGMqrkCoiddlw S/N XNt9UmI7mUGMqrkCoiddlw

In essence, the purpose of this application is to stop the Wife from using the money advanced to the Wife for maintenance to be used to pay the legal costs in the divorce proceedings against the Husband.

Before the learned HCJ, the Husband argued that the Wife had committed misrepresentation when the usage of the credit card was not consistent with the grounds in support of the interim relief. It was submitted that the Wife had used the credit card to pay legal fees in the divorce proceeding, contrary to her ground in support of the said S/N XNt9UmI7mUGMqrkCoiddlw application namely for spousal maintenance. In this respect, the learned HCJ ruled that this contention was untenable because the maintenance order was specifically designated as spousal maintenance, irrespective of the children’s need. It was also held that the order dated 9.12.2019 had already provided for child maintenance, reinforcing the distinction between child maintenance and child maintenance. When the court ordered that Wife’s, monthly expenses is capped at RM30,000.00, it is clear that that sum is not exclusively intended for the Wife’s daily expenses. Furthermore, there is no other exceptions attached to the order dated 9.12.2019 except for the medical expenses.

The learned HCJ also found that Husband’s objection for the spousal maintenance provisions to be utilised to pay the legal fee is also untenable because there is no indication that the Wife cannot use the funds for that purpose. The learned HCJ opined that spousal maintenance is inherently subjective and depends on the individual needs to the applicant, with the court exercising discretion in each case.

The learned HCJ disagreed with the Husband that there was misrepresentation of fact. There is no indication during the hearing of interim maintenance that the Wife was not going to use the maintenance money for her legal fees. In fact, when the order of 9.12.2019 was made, it was foreseeable that the Wife would incur legal expenses due to the intricate nature of the divorce petition. The learned HCJ also emphasised that any payment that the Wife made from the RM30,000.00 spousal maintenance amount to pay for the S/N XNt9UmI7mUGMqrkCoiddlw legal expenses would inevitably reduce the funds available for the Wife’s other financial obligations.

The learned HCJ also applied the New Zealand High Court case of Clayton v Clayton [2015] NZHC 550 which ruled that a maintenance award can encompass the necessity for one party to cover accounting or legal expenses when there is ongoing litigation, facilitating the party’s journey towards self-sufficiency. Hence, the learned HCJ was of the view that unless expressly excluded from the High Court order, the Wife’s legal costs are included in the 9.12.2019 order.

The learned HCJ concluded that it became unmistakably clear that the Husband was resolute in controlling the Wife’s expenditures, aiming to curtail her entitlement to spousal maintenance. The learned HCJ added that reducing the Wife’s interim spousal maintenance at this stage would be a stark contradiction to principles of justice and equity.

The Husband argued that his application for variation is premised on the fact that the Wife’s application for interim reliefs did not include provisions for the impugned expenditure i.e. legal costs, forensic expert consultation fees, savings in TNG cash e-wallet and/or financial traders funding and jewelleries. These expenses do not constitute interim relief within the ambit of the order dated 9.12.2029. It was argued that when considering the Wife’s application for interim S/N XNt9UmI7mUGMqrkCoiddlw relief, the order dated 9.12.2019 was premised on the Wife’s full and frank disclosure of the description of the marriage and her needs. In contrast, in the order dated 16.11.2023 (now appealed against), the learned HCJ interpreted item 1G of the order dated 9.12.2019 without making any reference to the Wife’s application and supporting affidavit for interim relief. This failure is a fundamental error on the part of the learned HCJ when considering the application to vary. In this respect, it was argued that there is no evidence that the Wife’s lifestyle during the tenure of the marriage to the Husband included payment of legal costs, forensic ‘expert consultation fees, savings in TNG cash e-wallet and/or financial traders funding. The order dated 9.12.2019 capping monthly interim relief at RM30,000.00 was intended solely for the Wife’s essential living expenses; hence, any deviation must necessarily constitute an abuse of the process and/or material change in circumstances.

The Husband submitted that the discovery of the Wife’s unilateral use of the interim relief in June 2023 for legal costs and the contentious expenses without the Husband’s knowledge and to the Husband’s detriment constitutes clear misrepresentation, misuse and/or misconduct tantamount to disobedience of an order of Court and abuse of process.

The Wife submits that the Husband has failed to prove that there was any misrepresentation and whether there was any material change in circumstances. The learned HCJ was correct in finding that the order dated 9.12.2019 was specifically designated as spousal S/N XNt9UmI7mUGMqrkCoiddlw maintenance, irrespective of the children’s need. The Husband has never given any money to the Wife for her own savings throughout the course of marriage. The Husband was also fully aware that the Wife had been financially dependent on him. Therefore, when the Wife had to file the petition in the High Court, she had done so on the basis of seeking justice for herself. It was submitted that these are pertinent consideration for the court to consider in determining the scope of item 1G of the order dated 9.12.2019; hence the Wife should be entitled to pay the legal expenses from the interim maintenance provision.

It is also highlighted by the Wife that item 1G of the order dated 9.12.2019 only made one exception with respect to the usage of the maintenance sum i.e. in relation to the medical expenses which are not covered by the medical insurance. Furthermore, at the point of making the interim relief application, the Wife had no knowledge that the trial of the divorce petition will be protracted up to almost 80 days and that she will have to use the maintenance to pay for the solicitor’s fees.

Contrary to the Husband’s submission that he only realised in June 2023 that the Wife had been using the maintenance to pay the legal expenses, the Wife submitted that the documentary evidence tendered in the court below shows that they were incurred from June

The filing of the application for variation on 26.6.2023, after a delay of more than 4 years, shows that the application is an afterthought of the part of the Husband designed to “cripple” her.

ANALYSIS AND OUR DECISION The Memorandum of Appeal contains 5 grounds of appeal. We have carefully examined the record of appeal and is of the view that the central issue in this appeal is whether the learned HCJ was correct in finding that the Wife has failed to prove misrepresentation and change in the circumstances under section 83 of the Law Reform (Marriage and Divorce) Act 1976 (the LRA).

It is trite law that the court has the discretion in ordering a spouse to pay maintenance to his former spouse at any time from the commencement of the divorce proceeding. The order of maintenance maybe ordered at any time from the filing of the divorce proceeding (pending disposal of the divorce proceeding), at the time or after the granting of decree of divorce or judicial separation and, in respect of a spouse who had been declared dead, after she is found. This power is provided for under section 77 of the LRA which provides: “ 77 Power of court to order maintenance of spouse

The court may order a man to pay maintenance to his wife or former wife-

during the course of any matrimonial proceedings;

when granting or subsequent to the grant of a decree of divorce or judicial separation;

if, after a decree declaring her presumed to be dead, she is found to be alive.

The court shall have corresponding power to order a woman to pay maintenance to her husband or former husband S/N XNt9UmI7mUGMqrkCoiddlw where he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health, and the court is satisfied that having regard to her means it is reasonable so to order.”

The power of the court is also extended to the recovery of arrears of maintenance owing to a particular spouse under section 86 of the

The exercise of court’s discretion in determining the amount of maintenance to be paid is subject to the principle of “means and need” of the parties regardless of the proportion such maintenance bears to the income of the parties ordered to pay the maintenance. However, this amount of maintenance to be paid shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage. This is provided for under section 78 of the LRA which provides:

“Assessment of maintenance In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.” S/N XNt9UmI7mUGMqrkCoiddlw (see also the case of Tay Chong Yew & Anor v Ong Kim Muah [2016] 2 CLJ 579; [2016] MLJU 1720; [2016] 2 MLRA 663)

Notwithstanding section 78, the court is also empowered under section 83 of LRA to make variation to the order for maintenance. Section 83 reads as follows: “Power of court to vary orders for maintenance

The court may at any time and from time to time vary, or rescind, any subsisting order for maintenance, whether secured or unsecured , on the application of the person in whose favour or of the person against whom the order was made, or in respect of secured maintenance, of the legal personal representatives of the later, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in circumstances.”

Section 83 provides for a situation where the order for maintenance may be varied on the following grounds:

misrepresentation;

mistake of fact; or

where there has been any material change in circumstances.

We are of the view that, in determining whether the prerequisites in section 83 has been fulfilled, the court must go back to the time when the application for interim relief was made and to evaluate what are the means and needs of the parties when making the application. In S/N XNt9UmI7mUGMqrkCoiddlw this respect, the Supreme Court of Gisela Gertrude Abe v Tan Wee Kiat [1986] CLJ (rep) 133 held that: “[4] When an application is made to the Court to vary an existing order for maintenance, the proper approach is to start from the original order and see what changes financial or otherwise, have taken place since that date including any changes which the court is required to have regard to under section 78 as well as any increase or decrease in the means of either of the parties to the marriage and make adjustments roughly in proportion to the changes, if that is possible.”

We are minded of the fact that in Gisela Gertrude Abe (supra), the court was concerned with the issue of material change of circumstances. However, we are of the view that the approach adopted by the court in that case is equally applicable in our determination on the issue of misrepresentation or mistake of fact in the present case. We say this because the Wife is now challenging the order dated 9.12.2019. As such the court must examine the fact that exists at the time of the filing of the application and decide whether the Wife can prove misrepresentation, mistake of fact or change in material circumstances. Hence the facts that formed the basis for the said court order must be examined in this appeal to determine whether variation is justifiable.

The LRA do not define the term ‘misrepresentation’. Therefore, is appropriate that reference to 18 of the Contract Act 1950 be made to render assistance in defining the said term. Section 18 provides: S/N XNt9UmI7mUGMqrkCoiddlw “Misrepresentation” includes-

the positive assertion, in a manner not warranted by the information of the person making it, of that which is not true, though he believes to be true;

any breach of duty which, without an intent to deceive, gives an advantage to the person committing it, or anyone claiming under him; and

causing, however innocently, a party to an agreement to make a mistake as to the substance of the thing which is the subject of the agreement.

In the case of Sim Thong Realty Sdn Bhd v Teh Kim Dar @ Tee Kim [2003] 3 MLJ 460; [2003] 3 CLJ 227; [2003] 1 MLRA 272, it was held that: “Now, it is trite that the expression ‘misrepresentation’ is merely descriptive of a false pre-contractual statement that induces a contract or other transaction. But this does not reflect the state of mind of the representor at the relevant time. The state of mind of the representor at the time he made the representation to the representee varies according to the circumstances of each case. It may be fraudulent. It may be negligent. Or it may be entirely innocent, that is to say, the product of a mind that is free of deceit and inadvertence (see Abdul Razak bin Datuk Abu Samah v Shah Alam Properties Sdn Bhd). Put another way, misrepresentation is innocent ‘where the representor believes his assertion to be true and consequently has no intention of deceiving the representee.’ S/N XNt9UmI7mUGMqrkCoiddlw (Cheshire & Fifoot, Law of Contract (6th Ed). It is the particular state of mind of the representor that determines the nature of the remedy available to the representee. So, if the misrepresentation is made fraudulently, then the representee is entitled to rescission and all damages directly flowing from the fraudulent inducement.”

In support of her application for the interim maintenance order, the Wife listed 13 items to be provided by the Husband. Nowhere in her application that the Wife ask for provision for expenses for the legal fees. Further, in her affidavit in support of her application for interim relief order (which run into 46 pages with 179 paragraphs), the Wife merely averred that she is so use to a luxurious lifestyle, including exhibiting her collection of expensive hand bags and shoes, and insists that the Husband should be ordered to pay for that lifestyle. It is worth mentioning that the affidavit of the Wife also revealed that she needs RM2,713,414.60 per year (RM226,115.60 per month) to maintain her lifestyle. However, there is no indication in the affidavit that her lifestyle during the marriage include payment for legal costs, savings in a TNG cash e-wallet and/or financial and transfer trading. Also, there is no mention about the provision for any future legal expenses.

It can be seen from the application and the affidavit in support that the Wife’s need at the time of making the application is only confined to maintaining her luxurious lifestyle. Hence, the order dated 9.12.2019 was made based on the Wife’s disclosure of her S/N XNt9UmI7mUGMqrkCoiddlw description of her luxurious life style and her need. This explain why in the order dated 9.12.2019, the learned HCJ had capped the Wife’s interim relief at RM30,000.00 per month save for medical expenses. Unfortunately, the learned HCJ did not consider this fact when dealing with the application for variation. The learned HCJ merely based her decision on the ground that there is no other exception attached to the interim maintenance order except for medical expenses. This, in our view is an appealable error which warrants our appellate intervention.

We remind ourselves that the concept of innocent misrepresentation is accepted in our jurisdiction (see Sim Thong Realty Sdn Bhd (supra)). Hence, in the present case, when the Wife now used a portion of her interim maintenance provisions to pay for the legal expenses, forensic ‘expert’ consultant fees, savings in a TNG cash e-wallet and/or financial and transfer trading, amounting to RM896,854.60 as at January 2025, these expenses do not fall within the category of the Wife’s need when the order dated 9.12.2019 was pronounced. Put another way, the Wife did not consider these expenses as her needs when applying for the interim relief. In this regard, we are of the view that the order dated 9.12.2019 was made due to misrepresentation by the Wife, albeit innocently.

This brings us to the issue of whether spousal maintenance for the Petitioner can be used for her legal fees during the pendency of the matrimonial proceedings. In other words, whether legal fees can fall within interim maintenance during the pendency of divorce proceedings.

Generally, an order for maintenance is primarily a form of material provision that will enable an adult to live a normal life and a child is brought up properly (see Sivajothi a/p K Suppiah v. Kunathasan a/l Chelliah [2006] 5 CLJ 318; [2000] 6 MLJ 48; [2006] 2 MLRH 173), intended to cover the spouse’s living expenses such as food, housing, clothing and medical care. These are considered basic need to ensure the survival of the spouse during or after the disposal of the matrimonial proceedings.

There is no provision in the LRA that entitles the Wife to claim for legal expenses in the maintenance order. In her judgment, the learned HCJ cited the case of Clayton v Clayton [2015] NZHC 550 as an authority to support the proposition that maintenance award can encompass the necessity for one party to cover accounting or legal expenses when there is an ongoing litigation, facilitating the party’s journey towards self-sufficiency. In the light of Clayton v Clayton (supra) the learned HCJ ruled that unless expressly excluded from the court order, the petitioner’s legal costs should be included in the interim maintenance order. By this, the learned HCJ seems to have incorporate legal fees as one of the “need” consideration under section 83 of the LRA.

Clayton’s case (supra) was decided on the “clean break” principle in the final maintenance order. In his judgment, Courtney J states: “[7] The provisions in ss 64 and 64A of the Family Proceedings Act 1980 for maintenance beyond the immediate period following the dissolution of a marriage or ending of a civil union or de facto partnership reflect the underlying “clean break” principle of that S/N XNt9UmI7mUGMqrkCoiddlw Act; a person’s liability to maintain his or her former spouse or partner is usually expected to be temporary while the other person become self-sufficient.”

It is to be noted that, section 64(1) of the New Zealand’s Family Proceedings Act 1980 (reproduced in Clayton’s case judgment) provides that: “(1) Subject to section 64A, after the dissolution of a marriage or civil union or, in the case of a de facto relationship, after the de facto partners cease to live together, each spouse, civil union partner, or de facto partner is liable to maintain the other spouse , civil union partner, or the de facto partner to the extend that such maintenance is necessary to meet the reasonable needs of the other spouse, civil union partner, or de facto partner, where the other spouse, civil union partner, or de facto partner cannot practicably meet the whole or any part of those needs because of any 1 or more of the circumstances specified in subsection (2).

The circumstances referred to in subsection (1) are as follows:

The ability of the spouses, civil union partners, or de facto partner, to become self-supporting, having regard to –

the effect of the division of functions within the marriage or civil union or de facto relationship while the spouse, civil union partner, or de facto partner:

(ii) the likely earning capacity of each spouse, civil union partner, or de facto partner:

(iii) any other relevant circumstances” ……. [emphasis is ours]

Obviously, Clayton’s case (supra) is decided on a different provision of the law. Our section 83 of the LRA do not have similar provision as section 64 of the New Zealand Act. The New Zealand Act provides for situations where a spouse is liable to maintain the other spouse where the other spouse cannot practically meet the whole or any part of the other spouses’ reasonable need. Unlike our section 83 of the LPA, section 64 (2) (a) (iii) of the New Zealand Act is very broad which enable the court to consider any circumstances that have led the party seeking maintenance being unable to meet his or her reasonable needs.

In this regard, the Wife cited a Singapore case of UFU (M.W) v UFV [2017] SGHCF 23 which cited the case of ALJ v ALK [2010] SGHC 255 and AQT v AQT [2011] SGHC 138 as follows:

The courts have generally accepted that legal fees are not to be deducted from the matrimonial pool. In ALJ v ALK [2010] SGHC 255 Woo Bih Li J considered that “[i]f [a party] had incurred legal fees on the divorce and ancillary proceedings, he should have used his own assets to pay them first and not matrimonial assets” (at [43]). Similarly, in AQT v AQT [2011] SGHC 138, Lai Siu Chiu J did not accept S/N XNt9UmI7mUGMqrkCoiddlw that the Wife’s legal fees for matrimonial proceedings could be deducted from the pool of assets. Lai J stated as follows: It was highly unusual for the legal fees for these very matrimonial proceedings to be deducted from the pool of matrimonial assets. It would be an unwise precedent to allow parties to deduct their hefty legal costs from the pool of matrimonial assets. Whatever liability parties owe their solicitors for the matrimonial proceedings should be settled from their own share of the matrimonial assets after division. To deduct the legal fees from the joint pool of matrimonial assets during the proceedings would be to render any costs order the court made in the judgment largely nugatory. [emphasis added]

The Singapore cases referred to in the preceding paragraph are decided based on the provisions of their Women’s Charter 1961. Section 119 thereof gives the court power to vary the order for maintenance on the ground of material change in circumstances. This provision is quite similar to our section 83 (except that misrepresentation and mistake of fact are not the ground for variation in the Singapore Act). We find that those authorities are highly persuasive. In this regard, we share the similar view taken by Justice Wong Kheng Keong in Teo Chee Cheong v Chiam Siew Moi [2024] MLJU 2924; [2024] CLJU 2515; [2025] 2 MLRA 1 that Singapore cases should be preferred when this court is adjudicating a S/N XNt9UmI7mUGMqrkCoiddlw matrimonial matter (even though in that case, the court is concerned with the issue of division of matrimonial assets).

Based on the above reasons, we are of the opinion that, the Wife should not use the matrimonial provisions for expenses/purposes not specified in her application. This is also consistent with the rule of pleadings, in that parties are bound by his pleadings and the relief sought in the application. However, face with the predicament as pleaded in her affidavit, the Wife is not without any redress. It must be emphasised that section 83 is applicable to both the Wife or the Husband. This is so based on the phrase “on the application of the person in whose favour or of the person against whom the order was made” used by the legislature in that provision. Hence, the Wife should have made an application for the variation of the order dated 9.12.2019 to incorporate payment of legal expenses as part of the interim relief. A proper application should be made before such payments were made.

For the aforesaid reasons, we are of the view that there is merit in this appeal. The learned HCJ has committed an appealable error when she dismissed prayer 1.4 of the Husband’s Notice of Application for Ancillary Relief dated 26.6.2023. The appeal is hereby allowed. The order of the learned HCJ for variation dated 16.11.2023 is set aside. We allow prayer 1.4 of the Notice of Application for Ancillary Relief dated 26.6.2023.

However, we do not make any order for reimbursement of such payments made by the Wife in contradiction to prayer 1G of the order S/N XNt9UmI7mUGMqrkCoiddlw dated 9.12.2019 as there is no provision for such relief under the

Costs of RM 15, 000.00 to the Husband subject to allocator fee. Dated: 18th July, 2025 -Sgd-AZHAHARI KAMAL BIN RAMLI JUDGE

Sumita Gnarajah

Agnes Loo Tse Ching

Hirasini S Mahandran [Tetuan Chris Lim Su Heng] For the Respondents: (1) Vasanthi a/p V. Sathasivam

Subathra a/p K. Sathianathan

Darshana Araventhan [Tetuan K. Sugu Associates] S/N XNt9UmI7mUGMqrkCoiddlw