PEMPETISYEN UMA MAGESWARY A/P SUBRAMANIAM M.SURESH A/L MARIMUTHU

BA-33-154-03/2020 Kand. 109 24/10/2023 09:02:51 1 DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM 2 DALAM NEGERI SELANGOR DARUL EHSAN, MALAYSIA 3 (BAHAGIAN KELUARGA) 4 PETISYEN PERCERAIAN NO : BA-33-154-03/2020 5 6 Dalam Perkara Sesyen 53 & 54 7 (1)(b), 76, 78, Akta Membaharui 8 Undang-Undang (Perkahwinan & 9 Perceraian) 1976 (Akta 164) 10 11 ANTARA 12 13 UMA MAGESWARY A/P SUBRAMANIAM 14 (NO. K/P : 710703-01-5978) ...PEMPETISYEN 15 16 DAN 17 18 M. SURESH A/L MARIMUTHU 19 (NO. K/P : 690909-10-5957) ...RESPONDEN 20 21 22 GROUNDS OF JUDGMENT 23 24 25 Introduction 26 1) This is an application by the petitioner wife (Encl 17) for interim 27 maintenance for herself pending the determination of the petition for 28 divorce. 1 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 2) This court did on 27.7.2023 allow Prayer 1 with no order as to costs. 2 The respondent is aggrieved with that decision and has appealed to the 3 Court of Appeal. These are the reasons for my decision. 4 5 Background Facts 6 3) The petitioner and the respondent were married on 9.1.2006. This 7 was an arranged marriage and both were about 36 and 39 years old at 8 the material time. Their conjugal relationship lasted for a mere 3 months 9 and hence there are no children in this marriage. The petitioner remained 10 in the marriage despite the lack of a conjugal relationship as she believed 11 in the sanctity of the marital vows she took and promised to uphold. 12 13 4) The petitioner has petitioned for a divorce after 13 years of marriage 14 premised on the ground that the respondent’s behavior was not 15 reasonable to put up with. Aside from the total absence of intimacy 16 between them, the straw that broke the camel’s back was when she 17 discovered that the respondent was carrying on with an affair behind her 18 back with a woman who was her friend. Realizing that her sacrifices in 19 staying on in a loveless marriage was in vain, the petitioner made the 20 choice to leave the respondent and depart from the matrimonial home. 21 22 5) In March 2020 the petitioner filed the divorce petition and in August 23 2020 she filed this application for interim maintenance. 24 25 Rival Contentions of the Parties 26 6) The petitioner is now 49 years old and resides alone. Her parents 27 are aged and are unable to help support her. She claims that her 28 prospects of remarriage is slim and she has passed her child bearing age. 29 She used to be a classical music teacher but has had to quit her job as 2 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 she is undergoing physiotherapy treatment for severe back pains. The 2 respondent has disputed this and had insisted that the petitioner seek a 3 second opinion for which he was willing to bear the costs of. The petitioner 4 has done so and was examined by a specialist from Pantai Hospital Klang. 5 6 7) The prognosis is not encouraging. According to the medical reports 7 furnished it has been confirmed that the petitioner is suffering from back 8 pain due to an abnormality in her spine which has affected her legs as 9 well. It has been stated in the medical reports that her medical condition 10 will continue to plague her unless a major surgery is performed on her 11 spine. However the doctors have advised her that a major surgery such 12 as the one contemplated comes with high risk as it could potentially lead 13 to several other complications. The petitioner is still undecided as to 14 whether she should undergo the surgery or not. There is also the costs of 15 the surgery to consider. The petitioner states that she is unable to afford 16 the surgery which is estimated to be around the range of RM40,000 at 17 KPJ Kluang while Pantai Hospital Klang which is the respondent’s choice 18 of hospital is estimated at around RM90,000. 19 20 8) As a result of her medical condition the petitioner has not been able 21 to work and as such she is not earning an income and remains 22 unemployed to date. She is claiming a sum of RM2500 per month as 23 maintenance, a sum which she says she requires for her daily necessities 24 and medical needs. She has submitted that a sum of RM2500 per month 25 is reasonable and would cover her needs bearing in mind that she has no 26 earning capacity. 27 3 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 9) The respondent vehemently refuses to provide the petitioner with 2 any maintenance and consequently she is in dire straits and is forced to 3 borrow monies from family members to tide her over. 4 5 10) The petitioner alleges that the respondent has the financial ability to 6 pay her the said sum as he earns a substantial income running a business 7 known as Hinode Marketing and he also does freelance manpower 8 business where he secures approvals for manpower from KDN. 9 10 11) The respondent in response has argued that she is not entitled to 11 any interim maintenance. He asserts that the petitioner is able bodied and 12 capable of generating an income from her music talent. He believes that 13 there is nothing to stop her from continuing to teach music just as she 14 used to do when they were married. While he did not deny the fact that he 15 had not given her any form of financial support throughout the time they 16 were living together as husband and wife he wished to point out that they 17 have no children and no dependents to provide for, hence there is no 18 necessity nor need for him to maintain her in this interim period. 19 Nevertheless he conceded that the petitioner used to help him with his 20 business for which he never paid her any remuneration. 21 22 12) The respondent in filing his affidavit in reply to Encl 17 has disclosed 23 that he has 11 properties in his name of which 9 were purchased during 24 the course of the marriage. Nonetheless he asserted that these properties 25 were bought all through his own efforts and the petitioner is not entitled to 26 any share of it whatsoever as she did not contribute a single cent to the 27 purchase of the properties. 28 4 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 13) The respondent also avers that the petitioner is not entitled to interim 2 maintenance as she did not do any household chores during their 3 marriage. All the cooking, cleaning and other household chores were 4 carried out by his mother. The petitioner has denied this accusation stating 5 that she as the quintessential housewife had performed her wifely duties 6 by cooking, cleaning, doing the laundry and maintaining the upkeep of the 7 matrimonial home. 8 9 14) The respondent stated that he was responsible for all the expenses 10 incurred in the matrimonial home including paying for his and his mother’s 11 medical expenses. He disclosed that he helped finance the petitioner’s 12 classical music class business. He allowed her to rent one of the premises 13 he owned to be renovated and used as a class to teach music. He claimed 14 that she was more often than not in arrears of rental but he never 15 complained or forced her to reimburse him for all the monies he expended 16 on her music business. 17 18 15) In this current proceedings the respondent has maintained that one 19 of the reasons he lacks the financial means to provide the petitioner with 20 interim maintenance is because he is himself burdened with bank loans 21 to service as well as for his own living expenses. He further justified his 22 stance citing his ongoing responsibility to support his aged and ill mother. 23 24 Findings of the court 25 16) The power of the court to grant interim maintenance to a spouse 26 pending the conclusion of the petition for divorce is provided for in sections 27 77 and 78 of the LRA 1976. 28 29 5 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 “Section 77 - Power for court to order maintenance of spouse 2 (1) The court may order a man to pay maintenance to his wife or former 3 wife:- 4 (a) during the course of any matrimonial proceedings; 5 (b) when granting or subsequent to the grant of a decree of divorce 6 or judicial separation; 7 (c) if, after a decree declaring her presumed to be dead, she is found 8 to be alive.” 9 [Emphasis added.] 10 11 17) In determining the amount of interim maintenance S. 78 provides 12 that the Court shall have consideration to the “means and needs” of the 13 parties : 14 15 “Section 78 - Assessment of maintenance 16 In determining the amount of any maintenance to be paid by a man to 17 his wife or former wife or by a woman to her husband or former husband, 18 the court shall base its assessment primarily on the means and needs 19 of the parties, regardless of the proportion such maintenance bears to 20 the income of the husband or wife as the case may be, but shall have 21 regard to the degree of responsibility which the court apportions to each 22 party for the breakdown of the marriage.” 23 [Emphasis added.] 24 25 18) It bears mention that the granting of interim maintenance pending 26 the disposal of the divorce proceeding is a discretionary remedy which 27 takes effect only until the conclusion of the divorce litigation reason being 28 the evidence to prove it takes place at the divorce proceedings. 29 30 19) It is quite inevitable when determining the amount of interim 31 maintenance based on affidavit evidence that the court will encounter 6 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 dispute of facts and conflicts in evidence produced by both sides. In order 2 to overcome this the court is under a duty to reject an assertion or denial 3 which is equivocal, or lacking in precision or is inconsistent with 4 undisputed contemporary documents or other statements by the same 5 deponent or is inherently improbable in itself (see Bank Negara Malaysia 6 v Mohd Ismail & Ors [1992] 1 CLJ Rep 14. 7 8 20) In the instant case the parties were married for 13 years and I find it 9 not unreasonable for the petitioner to resolve to stay true in the marriage 10 in spite of being denied her conjugal rights. 11 12 21) I find it pertinent to note that the respondent did not deny the fact 13 that he had not provide the petitioner with any maintenance for the 14 duration of their marriage. The petitioner had to rely on her earnings from 15 the music classes to buy household and personal items. Neither was she 16 remunerated for the assistance she rendered him in his business. The 17 respondent has conceded that the petitioner used to help him with his man 18 power work by helping him fill up application forms, photocopying 19 documents as well as other clerical work. 20 21 22) The respondent in his affidavit in reply did not disclose his sources 22 of income. He did not exhibit his bank statements or his income tax returns 23 to support his assertions. It is quite an achievement that the respondent 24 has managed to acquire those 9 pieces of property during the subsistence 25 of their marriage. The respondent has conveniently neglected to disclose 26 how he was able to purchase the properties within that short period of 27 time. I am in complete agreement with the contention of counsel for the 28 petitioner who urged the court to draw the inference that the respondent 29 was able to purchase the properties which each one valued averagely at 7 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 RM250,000 indicates that the respondent is in receipt of a steady high 2 income from his business. 3 4 23) I have examined the list containing particulars of the monthly 5 expenditure incurred by the respondent. While I acknowledge the 6 expenses incurred by the respondent I find that he has failed to support 7 those averments with supporting documents and cogent evidence to 8 maintain those amounts. The petitioner relied on the case of Koay Cheng 9 Eng v Linda Herawati Santoso [2008] 1 CLJ 147 where the court held 10 as follows : 11 12 “This court has been urged to draw adverse inferences with regard to 13 the husband’s income as the result of his failure to make full and frank 14 disclosure as provided for under s. 114(g) of the Evidence Act 1950.” 15 Further in the case of Sivajothi K Suppiah v Kunathasan Chelliah 16 [2006] 5 CLJ 318 the court reiterated that it is of “paramount importance 17 and duty for the husband to make the fullest disclosure of all relevant 18 information in respect of his financial capability for maintaining the 19 children.” 20 21 24) In this case the respondent was able to purchase 11 properties with 22 9 purchased during the 13 year marriage. In his Affidavit in Reply (Encl 23 31) the respondent gave details of the property, purchase price and the 24 monthly payments he made towards repayment. This alone would clearly 25 show that the respondent is a man of means and he has failed to disclose 26 his true source of income which enabled him to purchase all these 27 properties. It would be inequitable and unjust for the respondent to not 28 pay any form of maintenance to the petitioner. As a husband the 29 respondent is bound to maintain his wife more so when the petitioner is 30 now unable to maintain herself. The petitioner should not be left high and 8 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 dry without any interim maintenance pending the divorce proceedings. 2 Moreso when it is so obvious that there is a great disparity between the 3 income of the respondent and the absence of income of the petitioner. 4 5 25) I accept the petitioner’s averment that she is unable to find gainful 6 employment at this moment of time as she is suffering from serious back 7 pain and must undergo physiotherapy. She has stated that the back pain 8 is so severe to the point that she had to quit her job as it became 9 unbearable for her to work. Her averments are corroborated by the 10 medical reports from KPJ Kluang Specialist Hospital as well as from 11 Pantai Hospital Klang. wants to undergo the surgery. There is also the 12 consideration of the costs incurred which is estimated to be at the range 13 of RM40,000 at KPJ Kluang while Pantai Hospital Klang which is the 14 respondent’s choice of hospital is estimated at around RM90,000. 15 16 26) I find that the petitioner has amply made out her needs to justify 17 payment of interim maintenance to her. It is undeniable that she is in need 18 of monthly maintenance for herself pending the full disposal of the Divorce 19 Petition. Her health condition makes it difficult, even impossible to support 20 herself. She is not likely to be gainfully employed with the health condition 21 that she is now suffering from. The respondent cannot ignore his 22 obligation to pay her spousal maintenance on this score. 23 24 27) Reference is made to the case of Lee Chin Guan (L) v Pang Kim 25 Joon (P) [2017] 1 LNS 1988 where the court there took into consideration 26 factors such as the wife’s loyalty and devotion to the family, the 27 unlikelihood of being gainfully employed and her health and medical 28 needs. The learned judge found that since it was difficult for the wife to 29 find a job, it is thus only reasonable that the husband maintain her 9 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 because she is entitled to under the LRA 1976 to claim maintenance from 2 the husband. 3 4 28) Similarly here I find that due to the debilitating medical condition she 5 is currently faced with, the petitioner is entitled to claim for maintenance 6 from her husband. This is especially so when the specialist report from 7 the respondent’s own choice of hospital supports the petitioner’s 8 averments. 9 10 29) As I see it the respondent is more than able to pay interim 11 maintenance to the petitioner. As was stated earlier the respondent is the 12 registered proprietor of 11 properties. Of the 2 properties that were 13 purchased prior to their marriage, one of these is the matrimonial property 14 where the petitioner and the respondent stayed in upon their marriage and 15 it is this property that the petitioner has resided in for 13 years of their 16 marriage until she left the respondent. 17 18 30) From the respondent’s expenditure it is clear that he has the means 19 to live well and thrive while taking care of himself, his own needs and that 20 of his mother. It is therefore untenable for him to now turn around and 21 claim that he does not want to maintain his wife without any regard for her 22 welfare. 23 24 31) What is needed to be decided now is the amount of maintenance to 25 be awarded to the petitioner. It is an established principle that in deciding 26 what is the reasonable amount of maintenance that the husband should 27 pay, the court must take into account the means and needs of the parties. 28 This was applied in the case of Koay Cheng Eng v Linda Herawati 10 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Santoso [2008] 4 CLJ 105 where it was stated by the panel of the Court 2 of Appeal in the following passage : 3 4 “What is needed to be decided now is the amount of maintenance to be 5 awarded to the wife. It is an established principle that in deciding what 6 amount of maintenance the husband should pay the wife, the court must 7 take into consideration the means and needs of the parties. In assessing 8 the means and needs of the parties, the court has always had regard to 9 the duration of the marriage, whether there were any children of the 10 marriage the age of the parties, whether the husband had financially 11 supported the wife during the duration of their marriage, the parties 12 earning capabilities and whether the divorce would have affected the 13 husband’s position financially. 14 15 [26] We are of the view that with the standard and cost of living of the 16 respondent, the sum awarded is justifiable. We are in agreement with 17 the learned counsel for the respondent is to be placed in a position to 18 enjoy the same standard of living as eh and ruing the existence of the 19 marriage.” 20 21 32) Having myself dealt with the facts and circumstances surrounding 22 the instant case and having taken into serious consideration the tests as 23 set out in the LRA 1976 that is to say the means and needs of the parties, 24 I am firmly of the view that the petitioner deserves to be maintained by the 25 respondent in this interim period until the divorce petition is heard and 26 disposed of. 27 28 33) The petitioner in this application herein contends that she needs 29 RM2500 in maintenance. However from the details of the itemized 30 breakdown put forward by the wife in her affidavit in support I find that her 31 needs do not measure up to RM2500 as claimed. From my perspective, I 11 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 find that the amount can safely be rounded up and reduced to a total of 2 only RM1500 per month. This is a sum which I find is fair, reasonable, 3 adequate, not excessive and within the means of the respondent. It will 4 not cause a hardship to the respondent nor will it bring him financially to 5 his knees. 6 7 Conclusion 8 34) In conclusion after conducting a thorough examination and 9 evaluation of all the available evidence adduced, I allow this application 10 only to the extent of an interim monthly maintenance of RM1,500. 11 12 35) There is no order as to costs. 13 14 Dated 10 October 2023. 15 16 17 18 (JULIE LACK) 19 Judge 20 High Court of Malaya 21 Shah Alam, Selangor Darul Ehsan 22 23 24 25 26 27 28 29 12 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal 1 Counsel 2 For the Petitioner : 3 Mathimugam Karuppannan 4 (MESSRS. MATHIMUGAM CHEE & PARTNERS) 5 6 For the Respondant : 7 Yogarani Maniam 8 (MESSRS. YOGA & PARTNERS) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 13 S/N HhhPj/Qj0EGj1RDxzM1Bmg **Note : Serial number will be used to verify the originality of this document via eFILING portal