Mariamma A/P Suppan v Suresh Kumar A/L Velu (NA-33-101-05/2019)

This is an application by the Respondent Husband (hereinafter referred to as "the RH") via Enclosure 99 to vary the Court Order dated 9.8.2023. The RH seeks to reduce the monthly child maintenance following the completion of tertiary education by the eldest child of the marriage. Additionally, the RH seeks a refund of excess maintenance paid since the child’s graduation and a confirmation of the current arrears. Background of the case

Via a consent order dated 13.2.2020, the parties were divorced with the Decree Nisi made absolute with immediate effect. One of the terms of the decree nisi order which was agreed by both parties was that the RH agreed to pay monthly child maintenance of RM5000 for all the three (3) children of the marriage.

Through an application in enclosure 58, the RH applied for variation of the order dated 13.2.2020 to reduce the amount of child maintenance from RM5000 to RM3500 on the ground that he has a new family to support and that in itself would constitute a material change in the circumstances.

On 9.8.2023, this Court allowed the RH’s application and ordered the RH to pay RM3,500.00 monthly for the maintenance of the three children until they attain the age of 18 and/or finish their higher education. It is undisputed that these payments are currently deducted directly from the RH’s salary.

Two years later, in 2025, the RH has filed yet another application in Enclosure (99) for variation of the court’s order dated 9.8.2025 to further reduce the monthly maintenance for the three children by one third (1/3) on the ground that the eldest child has completed her studies at the Universiti Sains Malaysia (USM) on 26.9.2024, and thus his duty to provide for the child has ceased. Having heard enclosure 99, the court allowed the RH’s application and hence, the children monthly maintenance was varied where it was reduced from RM3500 to RM2333.00. Unhappy with the above decision, the PW has filed an appeal against it.

By virtue of Court Order dated 9.8.2023, RH has to pay RM3500 in child maintenance to the three (3) children of the marriage till they attain the age of 18 or after having completed their tertiary education. The total sum of RM3500 will be deducted from the RH’s salary directly pursuant to the Amended Garnishee Order.

On 15.7.2024, the RH has requested the PW to update the current education status of all the three children. The RW only updated the status of the younger two children, thus prompting the RH to make a direct enquiry with Universiti Sains Malaysia (USM) on the education status of the eldest child. After a few attempts of making the enquiry with the management of USM and amidst the opposition by the PW that the RH’s alleged encroachment into the matter is prejudicial to the child, in January 2025, the RH was finally informed by the USM that the eldest child has completed her higher studies on 26.9.2024.

It is the RH’s case that the PW did not formally notify the RH of this completion, which led to continued full deductions from his salary for all three children. The Petitioner wife’s Case

The PW averred that it is the duty of the RH as a father to keep up with the latest progress or development of the children’s education. He could have inquired about the matter by calling the children directly as he has their phone numbers with him. Yet, he chose the get the information by calling the USM directly, tarnishing the eldest child’s reputation. The PW stressed the fact that it is the duty of the RH to finance the children’ education and he must carry out his obligation responsibly.

At the same time, the PW has also raised preliminary objection, arguing that Enclosure 99 was defective for failing to comply with Form 11 and Rule 56 of the Divorce and Matrimonial Proceedings Rules 1980.

On the preliminary objection (PO), this Court decided to dismiss the said objection. In line with Order 2 Rule 3 of the Rules of Court 2012, technical non-compliance should not defeat a substantive application unless it occasions a substantial miscarriage of justice. As held in Jagdis Singh Banta Singh v Outlet Rank (M) Sdn Bhd [2013] 4 MLJ 213, the court prioritizes justice over mere technicalities. The PW suffered no prejudice as she was fully aware of the nature of the application and filed a comprehensive Affidavit in Reply. By doing that, the PW is considered to have submitted to the jurisdiction and could no longer raise an objection to the filing of the notice of the application in encl. 99.

As for the RH’s application in enclosure 99, the notice of application was made under Section 96 of the Law Reform (Marriage and Divorce) Act 1976 (LRA). Under the said provision, the Court is allowed to vary an order where it is satisfied that the order was based on misrepresentation or mistake of fact, or where there has been a material change in circumstances.

Under this application, the RH applied to vary one of the terms of the order dated 9.8.2023 which is as follows :- “ a) Responden Suami hendaklah membayar nafkah bulanan bagi ketiga-tiga anak hasil perkahwinan pertama sebanyak RM3500 sehingga mereka mencapai umur 18 tahun dan/atau sehingga menamatkan pengajian tinggi”.

The reason given by the RH for the variation of the order is that there has been a material change in the circumstances since the order was granted as one of the children, i.e, the eldest child has completed her tertiary education. To support his claim, The RH has provided evidence from USM confirming the eldest child’s completion of studies on 26.9.2024. Thus, his obligation to financially support the eldest child has ceased as of September 2024.

The relevant provision for the variation of the children’s maintenance can be found in Section 83 of the Law reforms (Marriage and Divorce) Act 1976 (LRA) which gives the court the power to vary orders for maintenance. At the same time, in deciding whether the RH’s financial obligation towards the eldest child ceases the moment the child completes her tertiary education, the Court is guided by Section 95 of the same Act which states :- “…it shall expire on the attainment by the child of the age of eighteen years or where the child is under physical or mental disability, or is pursuing further or higher education or training, on the ceasing of such disability or completion of such further higher education or training, whichever is the later..”

The Court also relies on Section 96 of the LRA which provides: “The court may at any time and from time to time vary, or may rescind, any order for the custody or maintenance of a child on the application of any interested person, 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 the circumstances” . Under section 96 of the LRA, the Court may allow an application for variation of the maintenance order if the Court is of the opinion that there has been a material change in the circumstances. The change must be a “material change” in an essential part and not just any simple change. Unemployment or retirement are some of the changes that have been decided by the Court to constitute a material change on the circumstances. (refer Anna Tay Siew Hong v Joseph Ng Tiong Yong [1995] 3 CLJ 717).

In this case, the RH’s ground of application for variation of the maintenance order is that the eldest child has completed her tertiary studies. The RH argues that the completion of the eldest child’s studies is a material change in the circumstances as under the law, he is no longer financially responsible for her. The court is in complete agreement with the RH’s husband stand on this matter.

The law clearly states that any payment of maintenance to a child of a marriage ceases when the child completes her higher education. (section 95 of LRA). In this case, The RH has adduced evidence to that fact and at the same time, the fact is also not denied by the RW.

It is also the Court’s considered view that the completion of the child’s tertiary education is a change in the circumstances that is material in nature. As she has completed her tertiary studies, under the law, she should no be longer dependent on her father for financial support. The child is legally deemed capable of entering the workforce and becoming self-supporting. To require the RH to continue paying maintenance for a child who has graduated from the University would impose an unfair financial burden that is no longer justified by the child's needs.

The PW admitted to receiving the full amount after the eldest child's completion of studies but argued that she used the funds for the second child's tertiary equipment (laptop and phone). The RW’s action of using the money meant for the eldest child for other purposes knowing full well that the child is no longer entitled under the law to the money is completely unacceptable.

The court also finds the PW’s action in not informing the RH of the fact that the eldest child has completed her studies were both ungenuine and mala fide. If the RW had felt that there is a change in the needs of the second child, the right thing for her to do is to come to the court and ask for an increase in the amount of maintenance.

Thus, based on the above reasons, the court allows the RH proposal for a reduction of the RM3,500.00 maintenance sum by one-third (RM1,167.00), leaving RM2,333.00 for the remaining two children. The RW is also ordered to return the money which has been overpaid to her.

The RH has successfully proven a material change in circumstances. It is inequitable to require a father to continue maintaining a child who has completed her tertiary education and is entering the workforce. The RH”s application in enclosure 99 is allowed with costs. Dated : 8 January 2026 -signed- (WAN FADHILAH NOR BINTI WAN IDRIS) JUDGE HIGH COURT OF SEREMBAN NEGERI SEMBILAN For the Appellant : Joseph Mathews A/L P.M. Mathews Tetuan Mathews & Associates For the respondent : Hashvinne A/P Kannan