Jaslinderjit Kaur Kenth A/P Malinderjit Singh v Helvinneer Singh A/L Amarjit Singh (BA-11A-13-12/2023)

The present appeal brings into focus an important legislation that seeks to, amongst others, protect vulnerable parties in traditional family structures and the safeguarding of social welfare by preventing individuals from becoming destitute due to family breakdowns. This relevant piece of legislation is the Married Women and Children (Maintenance) Act 1950.

The Appellant (Plaintiff in the Magistrates Court) sought relief under sections 3(1) and (3) of the aforementioned Act but the Appellant’s claim was dismissed by the learned Magistrate with costs.

The central issue at hand is whether the learned Magistrate erred in law and/or in fact by dismissing the Appellant’s claim. S/N JdfZGVec4kaYm8yLoy3Tg **Note : Serial number will be used to verify the originality of this document via eFILING portal 3

From this primary issue arise the following subsidiary questions: • whether the Respondent (Defendant in the Magistrates Court) has neglected or refused to provide maintenance for the Appellant; • whether the Appellant is unable to support herself financially; and • whether this case justifies the Court making an order for the Respondent to pay a monthly allowance for the Appellant's maintenance.

These issues are pivotal in determining the legal and factual basis for the Appellant’s claim and the subsequent decision by the court.

The Appellant, Jaslinderjit Kaur Kenth a/p Malinderjit Singh, is the wife of the Respondent.

The Respondent, Helvinneer Singh a/l Amarjit Singh, is the husband of the Appellant.

The Appellant and the Respondent were married on the 1st of October, 2022.

Regrettably, they were not destined to live happily ever after as a married couple. The breakdown in their marriage occurred within a S/N JdfZGVec4kaYm8yLoy3Tg **Note : Serial number will be used to verify the originality of this document via eFILING portal 4 remarkably brief period of just two and a half months. The pertinent date was said to be the 16th of December, 2022.

The Appellant commenced an action against the Respondent at the Magistrates Court in August of 2023 and sought payment of monthly maintenance of RM2,000 beginning from August, 2023 and overdue monthly maintenance for the period 16 December, 2022 to July, 2023.

As noted, the learned Magistrate dismissed the Appellant’s claim with costs of RM500.

Regarding the issue of whether the Appellant had been neglected by the Respondent, the learned Magistrate referred to the conflicting accounts provided by both parties. After reviewing these narratives, the Magistrate concluded that the Appellant had not presented sufficient evidence to substantiate claims of neglect.

The learned Magistrate substantiated this finding in paragraph [13] of the grounds of judgment.

Berkenaan isu pengabaian Plaintif oleh Defendan, Mahkamah telah merujuk kepada Afidavit kedua-dua pihak. Plaintif menyatakan bahawa beliau telah diabaikan oleh Defendan di rumah beralamat di No.19 Lorong Long, Taman Berkeley, 41150 Klang lebih kurang pada 16.12.2022 dengan berjanji akan datang semula untuk menjemput Plaintif selepas Tahun Baru Cina. Selepas itu, Defendan hanya menelefon dan memaklumkan ingin S/N JdfZGVec4kaYm8yLoy3Tg **Note : Serial number will be used to verify the originality of this document via eFILING portal 5 berpisah dengan Plaintif. Manakala Defendan pula menyatakan bahawa keluarga Plaintif telah membawa Plaintif ke Ipoh bagi temujanji doktor kerana Defendan tidak boleh mengambil cuti untuk menghantar beliau bagi temujanji tersebut. Selanjutnya Defendan juga memaklumkan bahawa pada 26.01.2023 beliau telah menerima surat dari peguamcara Plaintif berkenaan tuntutan bagi kereta yang diberikan kepada Defendan oleh keluarga Plaintif semasa perkahwinan. (Eksibit HA-2). Mahkamah mendapati tiada sebarang bukti yang dikemukakan oleh Plaintif berkenaan pengabaian yang dibuat oleh Defendan terhadap Plaintif dalam perkahwinan mereka.

On the issue of maintenance, the learned Magistrate made reference to section 78 of the Law Reform (Marriage and Divorce) Act 1976 and cases such as Dr Shameni Pillai PB Rajedran v. Dr. S Arulselvam Sanggilly & Anor [2010] AMEJ 0290; [2011] 6 CLJ 782; [2010] MLJU 1333; [2010] 3 MLRH 308, V Sandrasagaran Veerapan Raman v. Dettarassar Velentine Souvina Marie [1998] AMEJ 0189; [1999] 5 CLJ 474; [1998] 4 MLRH 112, Shilashshree Shirely Gomez v. Raymond Shilendran Simon [2019] AMEJ 1615; [2019] CLJU 1977; [2019] MLJU 1578; [2019] MLRHU 1757 and Koay Cheng Eng v. Linda Herawati Santoso [2008] 4 AMR 159; [2008] 4 CLJ 105; [2008] 4 MLJ 863; [2008] 1 MLRA 230.

The basis for her findings is explained in the following paragraphs of the grounds of judgment.

Dalam kes ini, Plaintif mendakwa beliau teiah diabaikan oleh Defendan selepas 2 bulan perkahwinan dan memohon untuk nafkah bulanan sebanyak RM2,000.00 sebulan tanpa sebarang S/N JdfZGVec4kaYm8yLoy3Tg **Note : Serial number will be used to verify the originality of this document via eFILING portal 6 asas atau keterangan sokongan serta Mahkamah mendapati tiada sebarang resit atau bukti dikemukakan oleh Plaintif yang menunjukkan bahawa Plaintif telah membelanjakan sebanyak RM2,000.00 sebulan dan melayakkan beliau untuk mendapatkan jumlah nafkah tersebut.

Berkenaan pekerjaan, tiada bukti dikemukakan bahawa Plaintif pernah bekerja sebelum atau semasa dalam perkahwinan selama dua bulan, selain pernyataan Defendan bahawa Plaintif pernah berkerja di restoran Kentucky Fried Chicken (KFC) sebelum mereka berkahwin dan kini sedang bekerja di Restoran A&W di Ipoh. Selain itu, Plaintif memiliki Kad Orang Kurang Upaya (OKU) untuk masalah pembelajaran, di mana Plaintif mendakwa beliau telah didiagnosis sebagai “Attention Deficit Hyperactivity Disorder’. Walaubagaimanapun, bagi mengetahui tahap kesihatan mental secara lebih lanjut, Plaintif tidak mengemukakan sebarang surat daripada pihak doktor yang dapat mengesahkan keadaan beliau secara teliti bagi dipertimbangkan dalam isu nafkah yang dipohon.

Selain-itu, pihak Defendan juga tidak mengemukakan sebarang dokumen berkenaan gaji beliau selain daripada pernyataan bahawa beliau bekerja sebagai pemandu lori dan menerima gaji bulanan sebanyak RM2,000.00. Sepertimana yang telah diputuskan dalam kes Shilashree Shirley Gomez v. Raymond Shilendran Simon [2019] MLRHU 1757 dan Koay Cheng Eng v Linda Herawati Santoso [2008] 1 MLRS 230, Mahkamah perlu mengambilkira kemampuan pihak Defendan dan keperluan Plaintif dalam memutuskan isu pemberian nafkah, Dalam Saman Pemula yang difailkan oleh pihak Plaintif tiada butiran dan bukti yang mencukupi. Pihak Pemohon juga gagal memperincikan perbelanjaan yang telah ditanggung oleh pihak Responden S/N JdfZGVec4kaYm8yLoy3Tg **Note : Serial number will be used to verify the originality of this document via eFILING portal 7 semasa berada di rumah perkahwinan dan keadaan kewangan responden sebenarnya dengan bukti yang kukuh.

The starting point is the Married Women and Children (Maintenance) Act 1950. Section 3 of the said Act provides as follows: Court may make order for maintenance of wife and children

3.

If any person neglects or refuses to maintain his wife or a legitimate child of his which is unable to maintain itself, a court, upon due proof thereof, may order such person to make a monthly allowance for the maintenance of his wife or such child, in proportion to the means of such person, as to the court seems reasonable.

If any person neglects or refuses to maintain an illegitimate child of his which is unable to maintain itself, a court, upon due proof thereof, may order such person to make such monthly allowance, as to the court seems reasonable.

Such allowance shall be payable from the date of such neglect or refusal or from such later date as may be specified in the order. For purposes of the present matter and appeal, the relevant provisions are section 3(1) and (3). [17] For the sake of completeness, reference should also be made to section 5 of the said Act. Section 5(1) expressly deals with a situation S/N JdfZGVec4kaYm8yLoy3Tg where the wife is “living separate from the husband” but the husband “offers to maintain his wife on condition of her living with him, and his wife refuses to do so”. That relevant provision states: Wife living separate from husband

5.

If any person, against whom an order has been applied for or made for the maintenance of his wife, offers to maintain his wife on condition of her living with him, and his wife refuses to do so, the court shall consider any grounds of refusal stated by such wife, and may make or enforce the order aforesaid, notwithstanding such offer, if it is satisfied that such person is living in adultery or for any other reason it is just so to do. [18] The following subsection (2) states the grounds whereby the wife shall not be entitled to receive and allowance. It reads as follows: Cases in which wife not entitled to allowance

No wife shall be entitled to receive an allowance from her husband under this Act if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband. [19] As noted in paragraph [14] above, the learned Magistrate made reference to section 78 of the Law Reform (Marriage and Divorce) Act

Section 78 states the approach to be adopted by the court when assessing the maintenance to be paid to the wife or former wife. Once again, to ensure thoroughness, this section is to be read together with the preceding section 77 of the Law Reform (Marriage and Divorce) Act 1976. Both these section deal with the aspect of “maintenance of spouse”. S/N JdfZGVec4kaYm8yLoy3Tg [20] Section 77 of the Law Reform (Marriage and Divorce) Act 1976 states that: Power for court to order maintenance of spouse 77.

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 the corresponding power to order a woman to pay maintenance to her husband or former husband 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. and section 78 provides that: 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 S/N JdfZGVec4kaYm8yLoy3Tg which the court apportions to each party for the breakdown of the marriage. The Decision of this Court [21] It is evident that there are two pieces of legislation that deal with the duty to maintain spouse and children, that is, the Married Women and Children (Maintenance) Act 1950 and the Law Reform (Marriage and Divorce) Act 1976. [22] The question that arise is whether the provisions relating to the maintenance of wife and children in the Married Women and Children (Maintenance) Act 1950 and the Law Reform (Marriage and Divorce) Act 1976 may only be invoked alternatively or are available to an applicant conjunctively. [23] It is obvious to this Court that the provision in section 3 of the Married Women and Children (Maintenance) Act 1950 operates while the marriage is still subsisting whilst sections 77 and 78 of the Law Reform (Marriage and Divorce) Act 1976 are activated when the matrimonial jurisdiction of the court has been attracted by the presentation of a petition for divorce, judicial separation or nullity of marriage. [24] In the present matter and appeal, since the matrimonial jurisdiction of the court has not been attracted, the Appellant was right in relying on section 3 of the Married Women and Children (Maintenance) Act 1950. [25] In considering the present matter and appeal, the court should engage in a two-stage determination/test. The first stage involves a S/N JdfZGVec4kaYm8yLoy3Tg determination of the question of whether an order for maintenance should be made. If the answer is in the negative, the matter ends there. If the answer is in the affirmative, the court should then proceed to the second stage to assess the amount to be paid. The First Stage – Order for Maintenance [26] The court is indeed empowered to make an order for the maintenance of a wife or children during the subsistence of marriage. However, it should be noted that section 3 of the Married Women and Children (Maintenance) Act 1950 is permissive in nature. [27] For purposes of this matter and appeal, the power should be exercised if the following conditions are fulfilled, namely:

any person neglects or refuses to maintain his wife; and

the wife is unable to maintain herself. These conditions are not only to be read conjunctively but they can only be deemed as satisfied “upon due proof thereof”. [28] This Court is satisfied that the learned Magistrate had correctly addressed her mind to the above issues and did not run into error when she concluded that the Appellant had not presented sufficient evidence to substantiate claims of neglect. On this ground alone, the learned Magistrate was right in rejecting the Appellant’s claim. S/N JdfZGVec4kaYm8yLoy3Tg The Second Stage – Assessment [29] As the answer to Stage One is in the negative, an appraisal of the second-stage assessment is rendered superfluous. Be that as it may, in the event that this matter is taken further to the Court of Appeal and the Court of Appeal disagrees with the findings by the lower court and this Court that the Appellant had not presented sufficient evidence to substantiate claims of neglect, an assessment will have to be undertaken. [30] As noted, the learned Magistrate had made reference to section 78 of the Law Reform (Marriage and Divorce) Act 1976 and a number of authorities cited in paragraph [14] above. Prior to the hearing of the oral submissions in this appeal, the parties and the Magistrate Court had proceeded on the basis that in assessing the amount of maintenance to be paid, the court ought to be guided by the principles as outlined in section 78 of the Law Reform (Marriage and Divorce) Act 1976 and the cases that have considered and applied this provision. [31] It has been pointed out that the provision in section 3 of the Married Women and Children (Maintenance) Act 1950 operates while a marriage is still subsisting, as in the present matter and appeal. On the other hand, sections 77 and 78 of the Law Reform (Marriage and Divorce) Act 1976 are only activated when the matrimonial jurisdiction of the court has been attracted by the presentation of a petition for divorce, judicial separation or nullity of marriage. [32] That being the case, in determining the amount of maintenance to be paid to a wife, the courts are bound by the considerations, if any, as stated in the Married Women and Children (Maintenance) Act 1950. In S/N JdfZGVec4kaYm8yLoy3Tg this regard, section 3 of the Married Women and Children (Maintenance) Act 1950 merely empowers the courts to make an order for the payment of maintenance. The absence of an express provision on assessment or maintenance, like the one in section 78 of the Law Reform (Marriage and Divorce) Act 1976 is evident. However, section 5 of the Married Women and Children (Maintenance) Act 1950 lists out a number of circumstances disentitling a wife from receiving a maintenance. None of these circumstances are present in the instant matter and appeal. [33] It is thus understandable why the Appellant, Respondent and the Magistrate Court had made reference to section 78 of the Law Reform (Marriage and Divorce) Act 1976 and the cases that had commented on and applied the said provision. The principles as laid down in section 78 of the Law Reform (Marriage and Divorce) Act 1976 are explicit. The court is required to “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”. In addition, the court shall also “have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage”. [34] As far as the case law is concerned, Evrol Mariette Peters J in CKW v HSL [2022] MLRHU 1198 explained that “an award for maintenance must be based on the 'means and needs' and not on 'means and wants'”. Her Ladyship further said that “the requirement of 'means and needs' is conjunctive, which means that it is not only the Petitioner's needs that have to be considered, it is also the Respondent's means that need to be addressed”. S/N JdfZGVec4kaYm8yLoy3Tg [35] It is trite that in addition to the above “means and needs” test, other factors that a court will take into account when assessing maintenance include the duration of the marriage and the respective contributions by the parties to the welfare of the family. [36] In view of the absence of a similar section 78 provision in the Married Women and Children (Maintenance) Act 1950, this Court if of the considered view that when section 3 of the Married Women and Children (Maintenance) Act 1950 is invoked, a court is permitted to adopt and apply the principles as applied under the Law Reform (Marriage and Divorce) Act 1976. That being the case, this Court is still of the view that the learned Magistrate had arrived at the correct conclusion when she disallowed the Appellant’s claim. [37] The decision of the Magistrate Court is affirmed. The Appellant to pay costs of RM5,000 to the Respondent, subject to allocatur. Postscript [38] This Court cannot help but express displeasure at the gender-biased language in section 3 (together with section 5) of the Married Women and Children (Maintenance) Act 1950. The provision insinuates that only men can be breadwinners in a family structure. To be clear, the Married Women and Children (Maintenance) Act 1950 is a commendable piece of legislation. As noted in the opening remarks of this judgment, its aim is to prevent “individuals” from becoming destitute due to family breakdowns. However, the “individuals” to be protected should also include husbands. The Act's understanding of vulnerable parties is rooted in traditional family structures. While traditional family structures should S/N JdfZGVec4kaYm8yLoy3Tg be cherished, it is time for this Act to be updated to be gender-neutral. Although sections 77 and 78 of the Law Reform (Marriage and Divorce) Act 1976 are somewhat more gender-neutral in their application, section 77(2), which allows a court to order a woman to pay maintenance to her husband or former husband on condition that he “is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health,” remains unsatisfactory. This is because such a proviso fails to address the concern highlighted by this Court. Dated: 24 July, 2024 sgd [CHOONG YEOW CHOY] Judicial Commissioner High Court of Malaya Shah Alam Counsel: Pramjit Kaur for the Appellant (Messrs. Mann & Associates) S. Sivaperumal for the Respondent (Messrs. G. Ram, Rozzeta & Associates) S/N JdfZGVec4kaYm8yLoy3Tg