Rajakumar A/L V Mariappan v Vijiya A/P Selvarajoo (AB-33-25-08/2020)

The Petitioner Husband (PH) in this case filed a Notice of Appeal to the Court of Appeal against this Court’s decision that was delivered on 19.4.2024 after a full trial was held. The Court allowed the divorce petition but made a series of orders against him, inter alia, to pay maintenance to the Respondent Wife (“RW”) and the couple’s children, as well as a portion of the PH’s EPF savings to be given to the RW.

The parties will be referred to as they were at the High Court. The Court now gives its reasons for making the orders. BACKGROUND [3] The Cause Papers in this application were as follows: i. Petition for Divorce dated 26.8.2020 (Encl. 1); ii. PH’s Affidavit in Support dated 25.8.2020 (Encl. 2); 2 iii. Affidavit in Support of the Petition dated 25.8.2020 (Encl. 3); iv. RW’s Reply to Encl. 1 dated 14.10.2020 (Encl. 10); v. RW’s Affidavit in Reply to Encl. 1 dated 27.10.2020 (Encl. 14) vi. PH’s Reply to RW’s Encl. 14 dated 16.11.2020 (Encl. 16); vii. RW’s Affidavit in Reply (2) to the PH’s Reply dated 22.12.2020 (Encl. 20); viii. PH’s Reply to RW’s Encl. 20 dated 30.12.2020 (Encl. 21); ix. Bundle of Pleadings (Encl. 31) marked as BOP; x. Issues to be Tried (Encl. 33); xi. Agreed Facts (Encl. 35); xii. RW’s Bundle of Documents (Encl. 38) marked as RBOD; xiii. Common Bundle of Documents (Encl. 40) marked as CBOD1; xiv. Additional Common Bundle of Documents (Encl. 41) marked as CBOD2; xv. Additional Common Bundle of Documents (Encl. 42) marked as CBOD3; xvi. PH’s Bundle of Documents (Encl. 45) marked as PBOD; xvii. PH’s Witness Statement (Encl. 46) marked as PSP1; xviii. Additional Common Bundle of Documents (Encl. 48) marked as CBOD4; xix. Additional Common Bundle of Documents (Encl. 50) marked as CBOD5; and xx. RW’s Witness Statement (Encl. 51) marked as PSR1.

The trial was conducted on 29.9.2022, 31.3.2023, 10.8.2023, and 22.9.2023 with only one witness for each side. Prior to that, on 7.10.2020 the previous Judicial Commissioner (as His Lordship then was) had granted the RW an interim order for a monthly maintenance payment of RM850.00 and insurance premium of RM530.00 for the children of the marriage, upon her ancillary relief application in Encl. 11. FACTS OF THE CASE [5] The background facts are gathered from the pleadings and affidavits filed by the parties in this suit. The PH and RW were married on 1.6.2022 in Shah Alam. They have 3 children from the marriage, two girls and a boy, and all of them are still under 18 years where their birth dates are 17.12.2006, 24.10.2011 and 10.4.2014, respectively.

It was undisputed that the PH had provided for the family in terms of their financial needs and the RW took care of the children and their home as she was a housewife then. During the early years of their marriage, they lived in Johor Bahru where the PH worked in Singapore until 2013 (since before the marriage). They had a matrimonial home then and the house had been sold after they moved to Taiping.

It was also an undisputed fact that the PH was a ‘workaholic’ and he controlled all the finances. The PH did not allow the RW to work. She was told to stay at home and take care of the children and their home. The RW complained that as her husband did not spend enough time with her and their children, and she alone had to handle all of her family’s affairs, she suffered mental stress. The RW also suffered from seizures and the PH rarely accompanied her when she went to have her check-ups at the hospital in Kuala Lumpur in respect of her condition. On the other hand, the PH contended that it was due to her epileptic seizures that he did not allow her to work as he was worried about her safety and health when she had epileptic fits.

The PH would give RM1,000.00 to the RW for the household expenses, including her own expenses. For the RW, this amount was not enough and she demanded to be allowed to take up a beautician course 4 in order to supplement their income. Finally in 2015, the PH relented and the RW enrolled herself into a beautician course where she claimed that she spent about RM8,000.00 for the fees and the money was from the savings that she made when she managed the household expenses over the years. The PH claimed that it was his money that she used to enrol in the said course.

The couple continued to quarrel because of the PH’s alleged lack of efforts to spend more time with their family. The RW claimed that only she took care of their children whereas he would be busy working that he did not have time to take them out for family outings such as having meals outside as a family. She contended that she did not ask that the PH take them out shopping or to expensive restaurants, it was enough that he showed his love and support to her and their children by making time for them. The PH admitted that he took her out only once a month because it was he who went to the market and did grocery shopping.

In July 2019, the RW was very depressed with her marriage and her father spoke to the PH about the situation, that the RW needed time to heal. It was the RW’s contention that the PH allowed her to work in Australia when she managed to secure a job as a hairdresser at a salon there. The RW left for Australia where she also enrolled at a college to learn English to improve her language skills. On the other hand, the PH claimed that the RW wanted to go to Australia to be with her boyfriend and she had totally neglected her duties as a wife and mother while she was there. Further, it was only the PH who had taken care of their children when the RW was in Australia. He alleged that after their third child was born, the RW had “changed” and appeared as if she did not want to be married to him any more. He contended that the RW told him she wanted 5 to find another life partner because he could not make her happy and he did not fulfill all her wishes. He alleged that she had extra-marital affair by being in contact with another man through the telephone. The RW totally denied this allegation and that the PH made such allegations without any basis or evidence.

The RW’s version was that the PH allowed her to take up the job offer and before she left for Australia, she had bought a tablet to enable her children to make video calls to her. Her mother and sister also offered to take care of their children during the period that she would be away from Malaysia. But the PH wanted to care for their children himself and therefore, the RW agreed with the arrangement. However, after a few months, she found that the PH had prohibited their children from contacting her. Worried about her children, she claimed that she could not focus on her work and decided to return home.

Upon her return, in early 2020, the RW claimed that the PH chased her out from their matrimonial home and told her to take the children with her. The RW then took her children to live with her family in Klang, Selangor. They have been separated ever since that incident. She then started a bridal make-up business with some money she borrowed from her family and relatives. However, due to the Covid-19 pandemic, the business was affected and could not make any profit then. The RW claimed that now she only made money from her business during wedding seasons and it was not enough because she had to pay her employee’s salary, rental and repayment of the loan. Therefore, she contested the petition because her husband owed her for all her contributions to the family throughout more than 20 years of marriage and because her business was not making enough to enable her to sustain herself and their 6 children. She left the matrimonial home only because the PH unilaterally had ordered her out.

The PH sought from the Court the following reliefs: i. that the marriage be dissolved; ii. that the RW is given custody, care and control over the children of the marriage; iii. that the PH be given free access to the children of the marriage; iv. that the RW is not allowed to take the children of the marriage overseas without the PH’s approval and consent; v. no order as to costs; and vi. any other reliefs that the Court deems fit.

Meanwhile, the RW counterclaimed for the following reliefs: i. that the RW does not need the PH’s permission to take the children of the marriage overseas for holidays with her; ii. that the PH’s approval and consent to take the children of the marriage overseas would be obtained only if the PH was paying for the overseas trip; iii. that the RW is one of the owners of the matrimonial home at No. 16, Lorong Maju 7, Taman Asam Maju, Taiping, Perak (“the said property”) and the said property is to be divided equally between them both; iv. the said property was not registered under the PH’s name but his brother’s because the PH had been black-listed and 7 therefore, the said property was a matrimonial home which should be divided jointly between the PH and the RW; v. that the PH be made responsible to pay to the RW all costs and expenses for the children of the marriage’s studies, including but not limited to education costs, school costs, tuition fees, co-curriculum activities costs, school bags, school uniforms, shoes, stationeries and books; vi. that the PH be made responsible to pay to the RW all medical, dental and / or optometry for the children of the marriage; vii. that the PH be made responsible for all the other expenses of the children of the marriage’s tertiary / degree education; and viii. that the PH gives to the RW a sum of RM2,000.00 per month for her maintenance until she secures a job; ix. no order as to costs; and x. any other reliefs that the Court deems fit. EVALUATION AND FINDINGS OF THE COURT [15] The law in regard to the power of the courts to order division of matrimonial assets are as contained in s.76 of the Law Reform (Marriage and Divorce) Act 1976 as amended in 2017 as follows: “76. Power for court to order division of matrimonial assets

The court shall have power, when granting a decree of divorce or judicial separation, to order the division between the parties of any assets acquired by them during the marriage or the sale of any such assets and the division between the parties of the proceeds of sale.

In exercising the power conferred by subsection (1) the court shall have regard to-

the extent of the contributions made by each party in money, property or work towards the acquiring of the assets or payment of expenses for the benefit of the family; (aa) the extent of the contributions made by the other party who did not acquire the assets to the welfare of the family by looking after the home or caring for the family;

any debts owing by either party which were contracted for their joint benefit;

the needs of the minor children, if any, of the marriage;

the duration of the marriage, and subject to those considerations, the court shall incline towards equality of division.

Deleted.

Deleted.

For the purposes of this section, references to assets acquired during a marriage include assets owned before the marriage by one party which have been substantially improved during the marriage by the other party or by their joint efforts.”. [16] Other sections of importance are sections 77, 78, 92 and 93 with regard to the power of the courts to order maintenance of spouse and children. The provisions are as follows: “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. Assessment of maintenance 78. 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. … Duty to maintain children 92. Except where an agreement or order of court otherwise provides, it shall be the duty of a parent to maintain or contribute to the maintenance of his or her children, whether they are in his or her custody or the custody of any other person, either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof.

Power for court to order maintenance for children

The court may at any time order a man to pay maintenance for the benefit of his child—

if he has refused or neglected reasonably to provide for the child;

if he has deserted his wife and the child is in her charge;

during the pendency of any matrimonial proceedings; or

when making or subsequent to the making of an order placing the child in the custody of any other person.

The court shall have the corresponding power to order a woman to pay or contribute towards the maintenance of her child where it is satisfied that having regard to her means it is reasonable so to order.

An order under subsection (1) or (2) may direct payment to the person having custody or care and control of the child or trustees for the child.”. [17] Due to the above provisions of the law, the RW claimed that she was entitled to equal division of their matrimonial assets as well as to claim maintenance for herself and their children. It was the RW’s contention that there was more than one matrimonial asset bought ny the PH during the lifetime of their marriage. Based on the documents filed in Court, the matrimonial assets which the RW was claiming equal share were as follows: i. the matrimonial home which was the house in Taman Asam Maju i.e. the said property (refer to CBOD1 pages 78-80); ii. a Ladang Kelapa Sawit at Lot 5089, RTB Ayer Putih, Mukim Asam Kumbang, Daerah Larut dan Matang (refer to CBOD1 pages 7-9); and iii. all the PH’s cash, bank savings, EPF, insurance and deposits in any of hos bank accounts as well as all movable and immovable properties owned by her husband.

The matrimonial home in Taman Asam Maju and the Ladang Kelapa Sawit at Lot 5089, RTB Ayer Putih, Mukim Asam Kumbang, Daerah Larut dan Matang (“the oil palm land”) [18] During cross-examination of the PH, he admitted that he had sold off their matrimonial home in Johor Bahru for RM153,000.00 in which he made a loss. In regard to the said property, the PH claimed that it was a rented house where they lived. Nevertheless, according to the RW, as the PH’s name had been blacklisted, the said property was bought and registered under his elder brother’s name (refer to Encl. 10 page 5). However, I noted that at page 112 of the Notes of Evidence, the PH admitted that the said property was their matrimonial home. [19] About the oil palm land registered under the PH’s name solely, the Court made an order that the property shall not be disposed by the PH as it would be put on trust for his children wherein the income from the oil palm harvest could be used to supplement their maintenance payment by the PH. This was to ensure that they would have money for their upkeep and education needs. The PH also stated that he would transfer the title to his children but not to his wife because he did not trust her (impliedly). However, the PH also in his evidence stated that he could not give the oil palm land to his wife because he alone paid for it. Under the law, it does not matter that the spouse did not make any financial contributions towards the purchase of the property and his arguments did not find favour with the Court (s. 76(2)(aa) of the Act. Therefore, the Court ordered that the RW was entitled to a half-share of the oil palm land to be held on trust by both the PH and the RW for their children, and a half-share of the proceeds of the matrimonial home in Taiping. In the case of Koay Cheng Eng v Linda Herawati Santoso [2008] 4 MLJ 863, the court decided to give the wife RM60,000 which was about 1/3 of the full purchase price of RM191,000. However, this Court noted also in that case, in regard to another property (2 lots of land to build a house for the couple), the wife was entitled to one-half of the value the 2 lots of land despite the fact that the wife did not contribute to the purchase price of the lands. The learned judge also ordered that the wife was entitled to one-half of the net value of the couple’s second matrimonial home. [20] In respect of the division of matrimonial assets, counsel for the RW referred to the Court of Appeal case of Koay Cheng Eng (supra) where the appellate court held as follows: “The husband filed his affidavit of means on 7 February 2002. The husband stated that his gross monthly income is RM10,000 as an employee of Swiss Atlantic Sdn Bhd. However, this is being disputed by the wife. It is the submission of learned counsel for the wife that the husband had not been truthful about his income and had failed to make full and frank disclosure. This court has been urged to draw adverse inferences with regard to the husband's income as the result of his failure to make full and frank disclosure as provided for under s 114(g) of the Evidence Act 1950. Learned counsel referred to the case of Leow Kooi Wah v Philip Ng Kok Seng (Fifi Leong Kam Chon as co-respondent) [1997] 3 MLJ 133; [1 [1997] 2 AMR 2108, where Justice Mahadev Shankar speaking for the High Court held: Whatever the disclosure is by affidavit of facts, by affidavit of documents or by evidence on oath, the obligation of the husband is to be full, frank and clear in that disclosure. Any shortcomings of the husband from the requisite standard can and normally should be visited at least by the court drawing inferences against the husband on matters the subject of the shortcomings. In the present case, the husband's attitude mirrors the husband described by Justice Mahadev Shankar in the Leow Kooi Wah's case. The husband has dragged his feet in every aspect in relation to discovery in this case. He had attempted to avoid disclosing information in relation to his means. As such, the husband's declaration which he finally did, that his gross income as RM10,000 is questionable. This is especially so when the documents clearly shows otherwise. Thus, I am unable to accept the husband's declaration that his income is RM10,000 a month. To me, the means of the husband in this case is more than RM10,000 a month. But it is unfortunate that the amount could not be ascertained because the husband did not make a full and frank disclosure of his income. Thus, the husband should not be complaining when this court is drawing inferences against him. However, this does not mean that the wife's request of RM10,000 a month as maintenance should be granted fully. Considering the facts of this case and applying it to the principles that I have mentioned earlier, I am of the view that an amount of RM6,000 a month as maintenance for the wife is a reasonable amount, to commensurate with the lifestyle and standing of the couple during the marriage. Thus, it can be seen that while the husband had accumulated as in the year 2000 the sum of RM188,205.78 in his EPF account, the wife has no EPF monies. From her perspective, she had entered into a marriage with the intention of growing old with the husband and on his retirement they would both have been able to enjoy the benefit from the monies set aside in EPF contributions. The husband's EPF would have been used for the benefit of them both. Now with the breakdown of the marriage, the husband should not be allowed to solely benefit from the EPF. Accordingly, I am making an order that the wife be entitled to half of the amount standing to the account of the husband's EPF account as at the time of this divorce and such monies should be paid out to the wife when the same is made payable to the husband.”. [Emphasis added] [21] It was submitted that the facts of the above case were on all fours with the present case and this Court should draw an adverse inference under s. 114(g) of the Evidence Act 1950 against the PH for his failure to make full and frank disclosure about his state of finances. It was the RW’s contention that the PH had not fully disclosed his income from the proceeds of the oil palm harvest which the Geran at pages 7-9 of CBOD1 showed it was approximately 2-acres of land and his bank account at pages 68, 69, 71, 72, 73 and 74 of CBOD1 and pages 1 – 6 of CBOD3 showed money coming in from Git Seng Enterprise which was the company that bought PH’s oil palm fruits; the transactions were regular and monthy payments were made into the PH’s bank account commencing 30.6.2020. The PH’s bank balance grew until the ending balance of the Maybank account on 30.9.2021 was around RM18,000.00. This documentary evidence was at odds with the PH’s testimony that the proceeds of the oil palm fruits were not much as he had not cultivated many trees at that time. The Geran showed that the PH was the sole owner of the land and the document was dated 7.12.2018. He said it was bought in 2006 using his money and also his family’s fund. [22] The Court also noted that earlier the PH claimed he owned another oil palm land which he sold and used the proceeds to purchase the oil palm land which the RW was claiming. He did not make a disclosure about this other oil palm land in his pleadings and no evidence was adduced to support his contention. The Court also found that the PH kept the proceeds of the sale of the first matrimonial home (about RM40,000.00) to himself for his own use. And he claimed he did not make a profit from the sale. Moreover, when the Court questioned him about why he sold the house in Johor Bahru, he said he felt since the RW had left him to return to her mother’s home in Selangor, he could not afford it anymore. When pressed further as it would not make any difference if he was there alone or with his family because he would still have to pay the same monthly instalment, he replied that he felt “rugi” (lose out). In my view, he was just being evasive because this line of question and answer was pursuant to the fact that he did not make any improvements to better his family’s lives but instead chose to keep the money to himself for his own use. [23] I thought as head of family, he was rather selfish when the RW’s contributions to the family by taking care of their home and children were not appreciated but he chose to put his own interests at the fore when there were pressing needs of the family that he could have taken care of, financially. He said he would use the money for family’s needs but from the evidence, it did not appear he had done that when they went back as a family to live in Taiping; he claimed to rent the matrimonial house from his elder brother. [24] In the Law and Practice of Family Law in Malaysia, Sweet & Maxwell, (Thomson Reuters), at p. 99, the Court noted: “[4.053] It is noteworthy that with the new section 76 of the Act, provided under the Law Reform (Marriage & Divorce)(Amendment) Act 2017 [Act A1546], there will now be no such caveat of greater proportion when a matrimonial asset was acquired through the sole effort of one party. In fact, there will be no need to prove if the matrimonial asset was acquired through joint or sole effort. [25] Prior to the amendments to the 1976 Act in 2017, the court is empowered to deal with the division of assets only jointly acquired during the marriage. With the amendments, this has been reversed and the court is now empowered to deal with the division of assets acquired during the marriage irrespective of whose efforts it was to acquire them. The court, amongst others, shall have regard to the contributions of the party, who did not acquire the asset(s), to the welfare of the family. The court will look at overall contributions such as caring for the family and looking after the home. The duration of the marriage is also to be considered. The provision of section 76(2) of the 1976 Act is self-explanatory where the court shall incline towards equality of division of assets regardless of whose effort it was to acquire them. This provision remains the same. The key word is therefore “equality of division”. [26] In respect of the duration of the marriage as one of the factors to consider in the distribution of the matrimonial home, the couple had been married for 20 plus years. The fact she walked out the matrimonial home could not be taken to mean that she ended the marriage on her own accord because she was told to leave by the PH and this fact was not disputed. The RW could not be faulted for leaving. The Court has carefully considered the factors in s.76 and applied the criteria to the pleadings in this case, the bundles of documents as well as considered the case authorities cited by both parties. [27] Balancing the PH's version against the RW's version in the Affidavits filed in this Court and considering both parties' submissions, I am more inclined to agree with the submissions of the RW's Counsel on the principles in those cases which are used as the basis for the distribution of the outstanding matrimonial assets (including EPF savings and on the children's maintenance and education funding). The Affidavit Evidence of the RW remained unchallenged by the PH. The Court believed her version on a balance of probabilities more than his version. The Court finds that the marriage had broken down and the "signs of trouble emerged" as early as 2015 when the RW felt she had to do something to improve hers and her children’s lives since they were not getting enough attention from her husband. [28] In considering the division of the matrimonial home, on a balance of probabilities, the evidence of the RW that the house belonged to the PH was more probable than the PH’s version. The Court made the order that the house be sold and the proceeds to be divided equally between the parties, despite none of the parties’ names were on the Geran of the said property. The parties were also told to obtain a valuer’s report on the market value of the house and to complete the sale within a certain period of time. The Court agreed with the RW that it was she who maintained and educated the children after leaving the matrimonial home with help from her family members. The Court considered, on a balance of probabilities, that the RW’s contributions were substantial since the RW bore the responsibility for their upkeep after the couple separated. [29] The Court found that the RW was in the same situation as the respondent in the Koay Cheng Eng Case whereby the RW had been contributing to the family by care-giving and some financial contributions after she had to leave the matrimonial home in 2020. She became a single mother even before they had divorced and she tried to obtain a job to support her children but her business was only making just enough money to cover the business overheads. Therefore, the RW was entitled to half share of the value of the matrimonial home. Pursuant to sections 76(2)(a), (aa) and (d) of the 1976 Act, as stated above the Court ordered 50% of the proceeds of the matrimonial home at the current market price to be given to the RW after the sale.

(ii) Insurance premium [30] The RW submitted that the PH was also not truthful about his savings because he admitted earlier that when he worked in Singapore, where he earned SGD1,200.00 monthly and another SGD500.00 – SGD600.00 in overtime. The PH claimed that the company where he worked did not make any deductions from his salary. He told the Court that he did not have any savings then and the salary was spent for his family’s expenses where he had only one child then. They were staying in Johor Bahru and not in Singapore, and I found it odd that he claimed not to have any savings at all (considering the more favourable exchange rate of the SGD to the MYR) and that HIS COMPANY DID NOT MAKE ANY DEDUCTIONS AT ALL SUCH AS EPF. [31] The Court noted that the equivalent of Malaysia’s EPF in Singapore is the CPF (Central Provident Fund). On a balance of probabilities, it was more probable than not that there would have been some savings from his salary there in the CPF because there was no evidence that he worked illegally in Singapore (he told the Court that he did have a “permit”). Given the exchange rate of about RM2.50 to SGD1.00 around that time in 2002 – 2013 (the Court drew judicial notice on this fact), he would have received almost RM4,500.00 in salary since there was no deductions as he claimed. His wife only received RM1,000.00 at most for their household expenses. Therefore, he must have had some savings from working in Singapore. Unfortunately, the PH did not furnish enough proof about the monthly instalment on their first matrimonial home and his other expenses. Hence, the Court was entitled to draw an adverse inference against the PH following the case of Koay Cheng Eng (supra). [32] The Court further noted the evidence in respect of insurance premiums paid by the PH. His insurance premium for the children totalled RM481.59 and not RM1,060.00 as he claimed. But that amount did not include the PH’s own insurance premium (he admitted he had 3 policies) and for his mother. He did not file copies of the insurance policies to enable the Court to see who were the beneficiaries named. The RW also complained that it was elicited in the cross-examination of PH that he paid RM1,500.00 in monthly expenses for him and his mother whereas he was obliged only to pay RM850.00 for his 3 children and his wife’s expenses. The Court noted that from his own admission, the PH did indeed pay a lot of money for insurance premiums but the amount paid for his children’s insurance was just a fraction of what he paid for his mother and his own insurance premium. The Court ordered that the PH continued to pay the insurance premiums he had been paying for the children as was earlier decided by the previous Judicial Commissioner in respect of the application for ancillary orders. However, the RM850.00 maintenance payment for the children pending the disposal of the suit was ordered to be stopped.

(iii) Maintenance for the RW and her children [33] The Court also considered that the RW did not work until around 2019 when she took up the job offer in Australia. She did not have any EPF or savings for herself because the money she saved from the household expenses, she spent towards the beautician course. The maintenance ordered by the Court would supplement her income as a single mother after the divorce since she would have the custody, care and control of the children and their upkeep. The RW asked for RM100,000.00 as a lump-sum maintenance award. However, the Court was not inclined to award the amount she prayed for but instead ordered the PH to pay a monthly maintenance for the RW and his children. [34] In this regard, under s. 92, it is the duty of a parent to maintain his or her child either by providing them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof. The RW had pleaded in her reply in Encl. 10 paragraph 23 the expenses of her children for their upkeep and schooling costs. The Court found the costs to be reasonable as this was not able to be successfully challenged by the PH (the contents of paragraph 23 in Encl. 10 was deemed admitted): Ng Hee Thong & Anor v Public Bank Bhd [2000] 2 MLJ 29. But as stated above, it is also the duty of the RW to maintain her children as she would be having the custody of their children and she had her own income even though she claimed it was not enough. [35] In regard to the RW’s prayer for maintenance of their children, in Ng Ee Loon v. Tan Peng Lee [1998] 7 MLJ 173 it was held that the husband bore the primary obligation to maintain the children and the secondary obligation was on the wife where the court was so satisfied having regard to her means. The term 'maintenance’ used in sections 77 and 92 of the 1976 Act should be construed widely as it signified any form of material provisions that will enable the wife and children to be placed in a position to enjoy the same standard of living as they did during the existence of the marriage. [36] The Court agreed that the RW had discharged her responsibilities as a mother despite the financial constraints. The contributions PH made after they were separated were mainly for the children. The Court can only draw an inference that the PH did not want to pay more because he was concerned that after the divorce, proceeds from the oil palm harvest would not be given by the RW to their children when this was just pure speculation without no evidence to back up his claim. [37] The Court also agreed that the PH should not be allowed to plead low income to avoid his responsibilities under section 95 of the 1976 Act when there was evidence that he did have enough money to maintain his children until completion of their further or higher education or training. From the pleadings of the PH himself, the Court found that the PH left the work of caring for the children solely to his wife. Which was why when she came back from Australia, he ordered her to take the children with her when he ordered her to leave the matrimonial home, despite his claims that he could take care of their children well when she was gone for 6 months. Section 92 of the 1976 Act provides that maintaining or contributing to the maintenance of children means PH has to either “provide them with such accommodation, clothing, food and education as may be reasonable having regard to his or her means and station in life or by paying the cost thereof”. [38] The Court was satisfied on a balance of probabilities that the RW has shown that the PH has 2 incomes namely his salary and also income from the oil palm harvest proceeds. Therefore, his claim that his total income was around RM3,000.00 was not true but he earned more than that as seen in the bank statements of the PH exhibited in CBOD1 and CBOD3. [39] In that regard, after considering all available evidence before it, the Court found that the PH was responsible to pay for the education of the childen until they complete their tertiary education. The Court made this order for as long as they are or will be in college to complete their tertiary education. Hence, the PH and RW were both ordered to pay 50% each of the educational costs for the three children. [40] In the case of Wong Kim Foong (F) v Teau Ah Kau @ Chiong Kwong Fatt [1998] 1 MLJ 359, the law is that the fact the wife is gainfully employed and has her own income does not disentitle her to maintenance from her husband, nevertheless the quantum of such payment may be reduced. In the present case, the RW had not abandoned the claim for her maintenance and had pleaded she was entitled to it and showed the details of their monthly expenses. She asked for about RM6,000.00 for their maintenance and expenses but the Court allowed only RM3,000.00 per month considering that the RW had started her make-up business and was earning some income from it, albeit there were times when she did not receive any orders. Therefore, maintenance for the children and the RW had been set at alump sum figure of RM3,000.00 per month starting from the date of the decision until they finish college/university and to be paid no later than the 7th of each month into the RW’s bank account. This is a fair amount considering the circumstances and the Court decided that RW was entitled to monthly maintenance from the PH as it was not proved that she had extra-marital affairs by “talking on the telephone with other man” and he admitted that he did not have any proof of his claim. [41] The Court also made its decision in determining the amount of the maintenance to be paid by the PH by basing its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the PH, but the Court considered the degree of responsibility which the court apportioned to each party for the breakdown of the marriage. As the purported extra-marital affair was not proved, the Court considered that the PH’s unreasonable actions, including by ordering her to leave the matrimonial home, were the main cause of the breakdown of their marriage (refer to s.78 of the 1976 Act).

(iv) The PH’s EPF savings [42] In repsect of the claim for his EPF savings, the Court allowed 30% of the amount of the PH’s EPF savings to be given to the RW for her contributions towards their marriage. In the case of Shantini Plllay a/p Narayanasamy Pillay v Kanna Dassan a/l Narianasamy [2019] 7 MLJ 464 the court stated: “ … This is where a line must be drawn. The petitioner should not be given almost everything of the respondent. The respondent needs to continue with his life after this devastating divorce to him. His EPF should remain with him and not to be equally shared with the petitioner so that he is not left without sufficient means to carry on with his life. On top of this, the petitioner herself has her own EPF together with other moneys already ordered earlier and not to forget the provision she would also get as indicated below. As such, the very least she should do now is to refrain from being seen as too hard on the respondent by also demanding half share of his EPF.” [43] Nevertheless, Shantini Plllay a/p Narayanasamy Pillay (supra) may be distinguished because in that case, the parties acquired several matrimonial assets during the period of their marriage and the wife had already been given a half share of all the other assets when the issue of division of the husband’s EPF was being considered. In the present case, the RW only claimed the matrimonial home, the oil palm land and the PH’s EPF and savings. The Court noted that in the case of Koay Cheng Eng (supra), the Court of Appeal upheld the decision of the High Court which had awarded the wife 50% of the amount in the husband’s EPF account as at the time of the divorce. At page 247, it stated: “…I am of the same view that EPF contributions are matrimonial assets when acquired during the marriage. … From her perspective, she had entered into a marriage with the intention of growing old with the husband and on his retirement they would both have been able to enjoy the benefit from the monies set aside in EPF contributions. The husband's EPF would have been used for the benefit of them both. Now with the breakdown of the marriage, the husband should not be allowed to solely benefit from the EPF. Accordingly, I am making an order that the wife be entitled to half of the amount standing to the account of the husband's EPF account as at the time of this divorce and such monies should be paid out to the wife when the same is made payable to the husband.”. [44] In Parkunan Achulingam v Kalaiyarasy Periasamy [2004] 7 CLJ 175, it was stated: “[22] The same position was taken by the Court of Appeal in the case of Ching Seng Woah v. Lim Shook Lin [1995] 2 MLRA 487, [1997] 1 MLJ 109, [1997] 1 CLJ 375; [1997] 1 AMR 214, where an order that a sum of RM86,875 be paid to the wife out of the husband's EPF when it is paid out in accordance with the law was upheld…”. [45] The Employees Provident Fund Act 1991 had been amended to provide: 53A(1) Notwithstanding section 51, when an order is issued by a court that part of the sums of money standing to the credit of a member of the Fund is matrimonial asset, the Board may, after being served with the sealed order, transfer the sum of money as ordered by the court from the account of a member of the Fund into the account of the receiver named in the order subject to any terms and conditions as prescribed by the Board. [46] Therefore, If an order is made to that effect, the EPF Board will make the necessary calculations and transfer the said amount to the RW’s EPF account as provided for in section 53A above. [47] The Court finds that at the present time, the RW needs the EPF savings from the PH as she is saddled with more responsibilities on her hands in respect of the growing children. There is no good reason to deny the RW her share of the PH’s EPF contributions as the only issue to be decided is whether or not the RW is entitled to a share and not merely what are the needs of the PH. The case laws cited earlier also decided that the EPF savings of the husband is a matrimonial asset which could be shared between them. Having said that and in view of the circumstances of the case, the Court ordered that the RW is entitled to 30% of the PH’s EPF savings and the statutory body is to give effect to the Court’s order accordingly. [48] In this case, the marriage had irretrievably broken down since 2020 when the PH irresponsibly and unreasonably told the RW to leave the matrimonial home with their children. Both the parties have no wish to stay married to each other and the Court opines in the circumstances, it is only right to grant them the divorce in order for them to move on with their lives. [49] In summary, the Court allowed the petition and ordered the following: i. the marriage be dissolved and the Decree Nisi to be made absolute after 3 months; ii. custody, care and control of the three children of the marriage to be given to the RW; iii. the PH be given reasonable access to the children of the marriage provided that it does not disrupt their schooling and studying hours; iv. the PH’s consent for the RW to take the children of the marriage overseas for holiday is not required if the RW pays for the expenses; v.