Rose Fernandez v Anthony John Bosco A/L A. Pitchay (WA-33-62-02/2021)

This was an application (“this Application”) by the Petitioner wife in enclosure 65 under Rule 56(2)(a) of the Divorce and Matrimonial Proceedings Rules 1980 ("Divorce and Matrimonial Proceedings Rules") seeking, inter alia, maintenance pending divorce, and for the disclosure of the matrimonial assets on the part of the Respondent husband, to enable this Court to make a fair distribution of matrimonial assets, at the hearing of the divorce petition.

The Petitioner and Respondent aged 74 and 79 respectively, were married in September 1973, and had three children, one of whom had passed away in April 2020.

The Petitioner had worked various jobs throughout the marriage, while the Respondent worked at the Ministry of Defence until his retirement, after which he operated a fitness centre to date.

It was undisputed that throughout the marriage, it was the Petitioner who had assumed the primary role of caring for the family, raising the children, and attending to their needs, especially those of her late daughter, who had suffered from a severe disability.

The Petitioner claimed to have suffered physically and emotionally due to the Respondent’s alleged uncaring behaviour. In February 2021, unable to withstand anymore the strains of the marriage, the Petitioner filed a divorce petition (“the Divorce Petition”). The Petitioner then 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 3 sought the assistance of her daughter and stayed with her during the time of the separation.

In June 2022, Petitioner had filed this Application in its amended form, which was allowed in principle for the following reasons. Contentions, evaluation, and findings

The starting point of this Application would be sections 77 and 78 of the Law Reform (Marriage & Divorce) Act 1976 (“Law Reform (Marriage & Divorce) Act”), both of which read: Section 77 – Power for 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. *** Section 78 – 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 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 4 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. [Emphasis added.] [8] In order for the Court to make an informed decision, rules 56 and 61 of the Divorce and Matrimonial Proceedings Rules which prescribe disclosure of full particulars of property and income. The provisions read: Rule 56 – Application by petitioner or respondent for ancillary relief

Any application by a petitioner, or by a respondent who files an answer claiming relief, for —

an order for maintenance pending suit;

a property division order, under section 76 of the Act; or

a maintenance order, under section 77 of the Act, shall be made in the petition or answer, as the case may be.

Notwithstanding paragraph (1), an application for ancillary relief which should have been made in the petition or answer may be made subsequently —

by leave of the court, either by notice in Form 11 or at the trial; or

where the parties are agreed upon the terms of the proposed order, without leave by notice in Form 11.

An application by a petitioner or respondent for ancillary relief, not being an application which is required to be made in the petition or answer shall be made by notice in Form 11. 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 5 ***** Rule 61 – General provisions as to evidence etc on application for ancillary relief

A petitioner or respondent who has applied for ancillary relief in his petition or answer and who intends to proceed with the application before a registrar shall, subject to Rule 84, file a notice in Form 12 and within four days after doing so serve a copy on the other spouse.

Where a respondent or a petitioner is served with a notice in Form 11 or 13 in respect of an application for ancillary relief, not being an application to which Rule 62 or 63 applies then, unless the parties are agreed upon the terms of the proposed order, he shall, within 14 days after service of the notice, file an affidavit in answer to the application containing full particulars of his property and income, and if does not do so, the court may order him to file an affidavit containing such particulars.

Within 14 days after service of any affidavit under paragraph (2) or within such other time as the court may fix, the applicant shall file an affidavit in reply containing full particulars of his property and income. [Emphasis added.] [9] The Respondent, in my view had not been forthcoming regarding his sources of income and its total. He was extremely reticent and even insisted that he had merely received a pension and nothing else whatsoever. However, he had, at the beginning, refused to provide this Court with the particulars of his income from the fitness centre that he operates, insisting that such fitness centre was running at a loss. [10] Although, the Respondent had finally disclosed some of his sources of income, he was adamant in not disclosing fully, and even stated that 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 6 he had already distributed his savings to his siblings and relatives, without disclosing details of such distribution. [11] The importance of full and frank disclosure of income and earnings is crucial to this Court, and the same was highlighted in the cases of Leow Kooi Wah v Philip Ng Kok Seng & Anor [1997] 3 MLJ 133, and Paramanathan a/I Sandran v Shamala Devi a/p Supramaniam [2020] MLJU 490, where in the former, it was stated by Mahadev Shankar J (as he then was) in the following passages: I entirely agree with Ms Chew that these rules impose upon the parties a spontaneous duty to exercise the utmost good faith in making the fullest disclosure of all relevant information. The cases she cited of J v J [1955] P 215 and Livesey v Jenkins [1985] FLR 813 are very persuasive because rr 73, 74 and 77 of the English Matrimonial Causes Rules 1977 are very similar. I quote with approval what Sachs J said in J v J: … where a husband is fully capable of and has had opportunity to explain those affairs, and where he seeks to minimize the wife's claim, that husband can hardly complain if, when he leaves gaps in the court's knowledge, the court does not draw inferences in his favour …. The effect has been that owing to the husband's grossly defective affidavit of documents, his failure to put before the court documents, the reticence in his long examination-in-chief, and his complete omission to keep or produce (I know not which) books of account, there have been kept from the court vital facts which he ought to have made plain. His attitude, to my mind, has been throughout an attitude of 'catch me if you can'. In substance, he sought to give the impression of a man barely subsisting in a Nissen hut, and then to say 'disprove that and the consequent inferences if you can'. For a husband in maintenance proceedings simply to wait and hope that certain questions may not be asked in cross-examination is wholly wrong. In the light of this apparent misapprehension, it is as well to state expressly something which underlies the procedure by which husbands are required in such proceedings to disclose their means to the court. Whether that disclosure is by affidavit of facts, by affidavit of documents or by evidence on oath (not least when the evidence is led by those representing the husband) the obligation of the husband is to be full, frank and clear in that disclosure. Any shortcomings of the husband from the requisite standard 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 7 can and normally should be visited at least by the court drawing inferences against the husband on matters the subject of the shortcomings — in so far as such inferences can properly be drawn. [Emphasis added] [12] I took a dim view of the Respondent’s reluctance in making full and frank disclosure as his conduct created an obstacle to this Court in making an informed decision regarding his obligation to maintain the Petitioner. The Respondent’s unwillingness to disclose his sources of income led the Court to draw an adverse inference against him pursuant to section 114(g) of the Evidence Act 1950, which reads: Section 114 – Court may presume existence of certain fact The court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to the facts of the particular case. ILLUSTRATIONS The court may presume:

that evidence which could be and is not produced would if produced be unfavourable to the person who withholds it; [Emphasis added] [13] As far as the Petitioner was concerned, it was undeniable that she was in dire need of monthly maintenance for herself, pending the full disposal of the Divorce Petition. She suffered several health complications, and her condition worsened in February 2021, when her 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 8 pelvic bone broke as a result of a fall she had suffered while walking the Respondent’s dogs. The injury necessitated surgery, which impeded her ability to walk, and hence she was currently wheelchair-bound. To date, she has to go to the hospital for regular follow-up treatments and take prescribed medications. It was, therefore, undisputed that she has no ability to support herself nor has the likelihood to be gainfully employed. [14] At all material times, the Petitioner had to depend entirely on her daughters for her living expenses, accommodation and healthcare, which, in my view, had unnecessarily burdened her daughters, whilst the Respondent continued to ignore his obligations towards the Petitioner. [15] In Sivajothi a/p Suppiah v Kunathasan all Chelliah [2006] 3 MLJ 184, it was stated that the Court should look at the nature of maintenance as a 'form of material provision that will enable an adult to live a normal life.’ The Court, in that case, further held that maintenance cannot mean mere subsistence, such as food, but also clothing, housing and money, 'all of which vary according to the means of the man who leaves a wife behind.' [16] An analogy was drawn also to the case of Lee Chin Guan (L) v Pang Kim Joon (P) [2017] MLJU 2021, where the Court had taken into consideration factors such as the wife’s devotion to the family, the unlikelihood of the wife to be gainfully employed; and the wife's health and medical needs. The following passages by Hayatul Akmal Abdul Aziz JC (as she then was) were relevant to the present case. 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 9 In the present case, I take note that PH was the one who instituted this divorce petition and it is not disputed that RW is a housewife as she had been for the past 30 years of her marriage to PH. She took care of the family while PH was the one who worked and financially maintained the family. RW is now a 60-year-old woman who at this age would be difficult for her to find a job and it is reasonable for PH to maintain her even though they are soon to be divorced, because she is entitled to under the said Act to claim maintenance from PH. … PH had elected not to disclose his financial ability, besides maintaining that he is a pensioner. PH however, did not dispute the amount for item 1, 3,4,5,6 as claimed by RW, but what PH is disputing, the right of RW (at this stage) in claiming for it. It would be unjust for PH to shift the burden of partly maintaining RW to his children/son, as the law does not make it incumbent upon the children to maintain their parents. The law presupposes the legal position that it is legally obligatory on the part of the husband to maintain his spouse or former spouse and to this end the law allows the said spouse to apply to court for an order for maintenance against the husband for which he would be responsible to maintain her in compliance with the requirements of the law. The law envisages taking into account the means and the reasonable needs of the parties. In the present case PH cannot deny that he can afford to pay the maintenance (since it's an ongoing expenses) claimed by RW and no evidence has been adduced to show the needs to be unreasonable in the circumstances. The issue of a fair and reasonable maintenance must be determined by reference to the facts and circumstances of each case. In Chaw Anui v Tan Kim Chai [2004] 4 Mil 272, the court considered the following factors: (1) devotion of the wife; (2) the unlikelihood of the wife to be gainfully employed;

the wife's health and medical needs; (4) the husband financial means;

the living standard of the wife; and (6) the means and the needs of the parties. In the present case, it is my considered view that 30 years of matrimony is a long period of time and surely PH cannot deny that RW is a devoted wife. There is no likelihood for her to be gainfully employed at 60 years of age and even if she is healthy, her age will still be an issue. PH did not deny that the amount claimed by RW to be reasonable for RW to 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 10 maintain her life to the standard that she has been accustomed to during the marriage. In the circumstances of the case, I find the amount claimed to be fair, reasonable and not excessive. [Emphasis added] [17] The Petitioner had provided a list of her expenses and, for such purpose, claimed that she would require a monthly amount of MYR3,300 as maintenance. The issue that this Court had to address, therefore, was whether the Petitioner had fulfilled the ‘means and needs’ test. At this juncture, it was important to note that the law on a claim for maintenance is documented in section 78 of the Law Reform (Marriage & Divorce) Act, which reads: Section 78 - 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. [Emphasis added.] [18] The application of section 78 of the Law Reform (Marriage & Divorce) Act was witnessed in numerous cases including Sreedevi Naidu a/p T Sree Ramalu Naidu v. Eelasegaran a/l T Nadarajah & Anor [2016] 6 CLJ 538; [2016] 3 MLJ 26 and Koay Cheng Eng v. Linda Herawati Santoso [2008] 4 CLJ 105; [2008] 4 MLJ 863, where in the latter case, 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 11 it was stated by Hashim Yusoff JCA, speaking for the Court of Appeal, in the following passages: What is needed to be decided now is the amount of maintenance to be awarded to the wife. It is an established principle that in deciding what amount of maintenance the husband should pay the wife, the court must take into consideration the means and needs of the parties. In assessing the means and needs of the parties the court has always had regard to the duration of the marriage, whether there were any children of the marriage, the age of the parties, whether the husband had financially supported the wife during the duration of their marriage, the parties earning capabilities and whether the divorce would have affected the husband's position financially. [Emphasis added.] [19] Reference was made also to the case of Ananda Dharmalingam v. Chantella Honeybee Sargon [2006] 1 LNS 176; [2006] 6 MLJ 179, where I drew guidance from the enlightening comments by Faiza Thamby Chik J, in the following passage: Having dealt with the above facts, I will reiterate the two separate tests set out in the LRA (one for the wife and another for the children) that must be considered in considering maintenance for the wife and children herein. By virtue of s. 78 of the LRA set out aforesaid, the only test that this court needs to adopt in deciding if (interim) maintenance should be awarded to the wife in these proceedings is the means and needs of the parties. The wife in the application herein contends that she needs RM6,800 in maintenance. However, the wife has not satisfied or discharged her duty to evidence that she does indeed need this sum of money. Indeed, the breakdown put forward by the wife at para 8 of her affidavit affirmed on 21 June 2004 does not add up to the amount of RM6,800. Further, the matters detailed in the said breakdown have not been evidenced by any receipts or bills or any form of documentation or other evidence whatsoever. It is therefore my finding that the wife has not adequately and/or properly evidenced her needs and that the figure of RM6,800 claimed by the wife in 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 12 the application herein is an excessive and unjustified amount. The husband in this case had been working in government service until recently. He left government practice at the end of last year. He only began working as a doctor in private practice from March 2004. In the circumstances, this is a husband who had only just started out in his career in private practice. [Emphasis added.] [20] The Respondent, in response to the Petitioner’s claim for a monthly maintenance of MYR3,300, proposed a paltry amount of between MYR200 and MYR300, which was grossly insufficient, in view of the expenses that the Petitioner had to bear. In fact, in light of the Petitioner’s physical condition, I would add that it would be extremely unkind of the Respondent to leave the Petitioner with just a few hundred ringgit to fend for herself. Conclusion [21] In the upshot, based on the aforesaid reasons, and after careful scrutiny of all the evidence before this Court, and submissions of both parties, I was of the view that the Petitioner’s expenses did not warrant an amount of MYR3,300. Furthermore, I took note of the Respondent’s averment that the Petitioner was not without any financial assistance as he claimed that she had her own sources of income, although he had failed to prove it. [22] As such, my decision was to order the Respondent to make payment of a monthly sum of MYR1,500, to be deposited into the Petitioner’s account by the seventh of every month. Costs was also ordered 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 13 against the Respondent in the amount of MYR3,000 (subject to allocator). Dated: 15 March 2023 SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Petitioner – Sudesh Kumar; Messrs Sudesh & Alicia For the Respondent – P Sevam; Messrs P Sevam & Associates Cases referred to: ➢ Ananda Dharmalingam v. Chantella Honeybee Sargon [2006] 1 LNS 176; [2006] 6 MLJ 179 ➢ Koay Cheng Eng v. Linda Herawati Santoso [2008] 4 CLJ 105; [2008] 4 MLJ 863, ➢ Lee Chin Guan (L) v Pang Kim Joon (P) [2017] MLJU 2021 ➢ Leow Kooi Wah v Philip Ng Kok Seng & Anor [1997] 3 MLJ 133 15 March 2023 ------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- ……………………………………………………………………………………………… 14 ➢ Paramanathan a/I Sandran v Shamala Devi a/p Supramaniam [2020] MLJU 490 ➢ Sivajothi a/p Suppiah v Kunathasan all Chelliah [2006] 3 MLJ 184 ➢ Sreedevi Naidu a/p T Sree Ramalu Naidu v. Eelasegaran a/l T Nadarajah & Anor [2016] 6 CLJ 538; [2016] 3 MLJ 26 Legislation referred to: ➢ Divorce and Matrimonial Proceedings Rules 1980 – rules 56, 61; Forms 11 and 12 ➢ Evidence Act 1950 – section 114(g) ➢ Law Reform (Marriage & Divorce) Act 1976 – sections 77, 78