R A I A V A

WA-24F-71-03/2023 WA-24F-71-03/2023 Kand. 83 17 November 2024 ……………………………………………………………………………………………… 17/11/2024 18:34:36 IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR IN THE FEDERAL TERRITORY, MALAYSIA ORIGINATING SUMMONS NO: WA-24F-71-03/2023 Dalam Perkara Seksyen-seksyen 77, 78, 88, 89 dan 93 Akta Membaharui Undang-Undang (Perkahwinan Dan Perceraian) 1976 BETWEEN RAI …PLAINTIFF AND AVA …DEFENDANT GROUNDS OF JUDGMENT ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 1 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… Introduction [1] This was the Defendant-Wife’s application in enclosure 44 (“this Application”) for an attachment of earnings order pursuant to section 4 of the Married Women and Children (Enforcement of Maintenance) Act 1968 (“Married Women and Children (Enforcement of Maintenance) Act”). [2] In view of the privacy of the parties and sensitivity of issues in these proceedings, the Plaintiff-Husband and Defendant-Wife have been anonymised in this judgment respectively as RAI and AVA. The factual background [3] The Plaintiff, aged 40, and Defendant, aged 39 at the time of the hearing of this Application, were married in August 2015. Their marriage was blessed with the birth of a daughter (“the Child”) in February 2021. After the marriage, the Plaintiff and Defendant (collectively, “the Parties”) established their residence in various rented properties within the Klang Valley area. [4] The marriage was troubled by persistent disputes and physical altercations, with tensions escalating to the point where both Parties filed multiple police reports against each other. Despite these challenges, the Parties experienced extended periods of attempting reconciliation, marked by efforts to restore harmony within their relationship. These attempts, however, were interspersed with phases ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 2 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… of separation, during which they lived apart, reflecting the ongoing and unresolved nature of their marital discord. [5] In July 2021, the Defendant left the matrimonial home with the Child. [6] In March 2023, the Plaintiff filed an application (“the Plaintiff’s Application”) seeking, amongst others, physical access to the Child. In September 2023, the High Court allowed partially the Plaintiff’s Application (“the Court Order”), granting the Plaintiff access to the Child. The Court further ordered the Plaintiff to cover the Child’s health expenses and to pay monthly child maintenance of MYR2,000, and spousal maintenance of MYR3,000. [7] Despite the Court Order, the Plaintiff had not complied with the spousal and child maintenance requirements. Instead, in March 2024, the Plaintiff's solicitors contacted the Defendant's solicitors, proposing a reduction in the combined spousal and child maintenance to only MYR500 per month. Although the Defendant had not agreed to this proposal, the Plaintiff continued to withhold full payment, making only sporadic payments of MYR500 to the Defendant in March, June, and July 2024. [8] It was undisputed that since March 2024, the Plaintiff has failed to pay the full combined spousal and child maintenance of MYR5,000 per month, as well as the Child's medical/ health expenses. [9] In April 2024, this Application was filed for the following reliefs: ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 3 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… 1. Bahawa RAI, Plaintif dalam kausa ini hendaklah membuat pembayaran daripada pendapatan beliau mengikut Seksyen 4 Akta Perempuan Bersuami dan Anak-Anak (Penguatkuasaan Nafkah) 1968 kepada Pendaftar Mahkamah yang Mulia ini untuk dihantar kepada AVA atau secara terus kepada AVA, Defendan tersebut untuk tujuan menjawab Perintah Mahkamah Tinggi Kuala Lumpur bertarikh 6.9.2023 yang diperolehi terhadap Plaintif oleh Defendan di Mahkamah Tinggi Kuala Lumpur pada 6.9.2023. 2. Bahawa Citigroup Transaction Services (M) Sdn. Bhd., majikan kepada Plaintif tersebut, diarahkan untuk mematuhi perintah ini dengan menolak sejumlah RM2,000.00 setiap bulan (bagi nafkah interim anak) dan sejumlah RM3,000.00 setiap bulan (bagi nafkah interim isteri) kedua-duanya daripada pendapatan Plaintif dan memajukan jumlah tersebut kepada Pendaftar Mahkamah atau kepada Defendan kedua-duanya pada atau sebelum 7 haribulan setiap bulan dengan kesan pelaksanaan dari bulan Mac 2024, sebagai nafkah bagi *** dan AVA (“Anak dan Isteri tersebut”). 3. Bahawa Citigroup Transaction Services (M) Sdn. Bhd., majikan kepada Plaintif tersebut, diarahkan untuk membayar RM7,420.00 yang dihutang oleh Plaintif kepada Defendan sebagai nafkah interim bagi Anak dan Isteri tersebut untuk bulan Mac 2024 dan April 2024, serta RM10.00 yang masih tertunggak kepada Defendan sebagai perbelanjaan perubatan/kesihatan interim Anak, iaitu bayaran medical co-payment, daripada pendapatan bulanan Plaintif. The issues [10] The issues that had to be addressed by this Court were (a) whether this Application was irregular, and (b) whether this Application was unjustified. [11] In September 2024, this Application was allowed, for the following reasons. ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 4 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… Contentions, evaluation, and findings Whether this Application was irregular [12] This Application was filed pursuant to the following provisions, namely section 4(1) of the Married Women And Children (Enforcement Of Maintenance) Act, which reads: Section 4 – Power of court to make an attachment of earnings order (1) Notwithstanding any written law to the contrary, the court may, upon the application of the person for whose maintenance the order is made or the guardian of such person, make an attachment of earnings order if the court considers it just so to make. [Emphasis added.] [13] The Plaintiff contended that his employer had not attended Court to make out of the earnings which are to be paid pursuant to section 5 of the Married Women and Children (Enforcement of Maintenance) Act, which reads: Sections 5 – Nature of attachment of earnings order (1) An attachment of earnings order shall require the person to whom the order in question is directed, being a person appearing to the court to be the defendant’s employer, to make out of the earnings which are to be paid to the defendant payments in satisfaction of the order. (2) The amount to be prescribed in an attachment of earnings order shall be such sum as to the court shall seem reasonable after taking into account the resources and needs of the defendant and the needs of persons for whom the defendant must or reasonably should provide. [Emphasis added.] ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 5 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… [14] In my view, the Plaintiff’s argument suffered from a fundamental flaw due to a misreading of section 5 of the Married Women and Children (Enforcement of Maintenance) Act. [15] Contrary to the Plaintiff’s interpretation, section 5 of the Married Women and Children (Enforcement of Maintenance) Act does not impose a mandatory requirement on the employer to personally appear in Court. Instead, the intent of the provision is to ensure that the Court is satisfied that the person identified as the Plaintiff’s employer has the requisite authority to process the necessary deductions directly from the Plaintiff’s income. This interpretation allows for a streamlined enforcement mechanism by focusing on the employer’s capacity to execute payment rather than on physical court appearances, thereby facilitating efficient maintenance payments without burdening the employer with court attendance. [16] Reference was made also to section 8(1) of the Married Women And Children (Enforcement Of Maintenance) Act which reads: Section 8 – Additional powers of court in attachment of earnings order proceedings (1) Where proceedings relating to an attachment of earnings order are brought in any court, the court may, either before or at the hearing- (a) order the defendant to give to the court, within such period as may be specified by the order, a statement signed by him of – (i) the name and address of his employer, or of each of his employers if he has more than one; (ii) such particulars as to the defendant's earnings as may be so specified; ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 6 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… (iii) such prescribed particulars as may be so specified for the purpose of enabling the defendant to be identified by an employer of his; and (b) order any person appearing to the court to be an employer of the defendant to give to the court, within such period as may be specified by the order, a statement signed by him or on his behalf of such particulars as may be specified by the order, of all earnings of the defendant which are to be paid by that person during such period as may be so specified. [Emphasis added.] [17] I found the Plaintiff’s contention bereft of merit for the following reasons. [18] Firstly, section 8 of the Married Women and Children (Enforcement of Maintenance) Act expressly vests the Court with discretionary authority, a principle unambiguously conveyed through the use of the phrase "the court may." This phrase is a clear indication of the legislature's intent to empower the Court with flexibility in determining the need for an employer’s appearance, rather than imposing an obligation upon the Court. [19] Such interpretation was essential to uphold the Court's authority and autonomy, ensuring that its powers are not needlessly constrained by rigid procedural obligations when there is no compelling justification. I, therefore, had to reject any alternative reading that imposed an obligatory duty upon the Court to summon the Plaintiff’s employer. Particularly, any interpretation that insists the Court "must" direct the employer to appear for the sole purpose of clarifying authorisation of payment deductions from the Plaintiff’s earnings would be inconsistent with the discretionary scope found in section 8 of the Married Women ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 7 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… and Children (Enforcement of Maintenance) Act. Such a constraining interpretation would misrepresent the legislative intent and unjustly restrict the Court’s ability to exercise sound judgment based on the circumstances before it. Section 8 of the Married Women and Children (Enforcement of Maintenance) Act, therefore, does not contemplate any blanket mandate on the Court to require employer attendance; rather, it recognises that the necessity for such an appearance must be assessed on a case-by-case basis, respecting the Court’s prudence and discretion in deciding if and when an employer's presence is actually warranted. [20] Furthermore, the Court's attention was brought to the fact that the Defendant had, in fact, taken steps to serve this Application upon the Plaintiff's employer in accordance with procedural requirements. The employer, upon receipt of this Application, promptly responded by email, indicating a clear willingness to comply with any instructions issued by the Court. Specifically, the employer had confirmed their preparedness to either attend the proceedings in person or take any alternative action the Court might deem necessary. [21] In light of this correspondence, the employer’s stance clearly signalled that, should the Court find their involvement necessary, they stood prepared to comply fully and provide any clarification or documentation required. This affirmative response by the employer reinforced the fact that, while their participation was available to the Court if deemed necessary, it remained entirely within the Court’s purview to decide whether their appearance was warranted. The Court retained full discretion to determine if the matter could be adequately addressed ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 8 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… based on existing evidence, without placing any undue burden on the employer’s time or resources unless absolutely required for the administration of justice in this case. [22] The Court’s decision not to summon the Plaintiff’s employer was fortified by the confirmation of both the Plaintiff’s employment status with Citigroup Transaction Services (M) Sdn Bhd, and the details of his monthly earnings. Notably, there was no contestation or ambiguity regarding the Plaintiff’s employment, nor was there any dispute over the income derived from this employment. The Plaintiff’s bank statements for the months of March, April, and May 2024 clearly demonstrated consistent monthly deposits approximating MYR19,000, thereby confirming his earnings with concrete financial documentation. This unambiguous evidence dispelled any necessity for further verification from the employer, as the information on record was both complete and undisputed. [23] As such, the Court’s decision to refrain from mandating the employer’s appearance was rooted in both prudence and judicial efficiency. Requiring the employer’s attendance without a pressing need would impose an unnecessary burden on third parties, in this case, the Plaintiff’s employer, who has already demonstrated a willingness to cooperate if required. The purpose of summoning witnesses or any other party is to clarify uncertainties, provide essential information, or resolve areas of factual dispute that are central to the proceedings. Here, however, there existed no such dispute or ambiguity; the Plaintiff’s earnings were well-documented and uncontested. As such, ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 9 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… compelling the employer’s attendance would serve no practical or evidentiary purpose in advancing the case. [24] The cases of Geh Thuan Hooi v. Serene Lim Paik Yan [2012] CLJU 132, and Thelagavathi A/P Murugesu v Karuppusamy @ Selvaraj A/L K. Munisamy [2010] MLJU 1887 that the Plaintiff had relied on were distinguishable from the present case. [25] In Geh Thuan Hooi v. Serene Lim Paik Yan, the judge chose to exercise her discretionary authority by requiring the employer’s attendance in court. This decision was primarily motivated by the petitioner-husband’s assertion that his employment contract had come to an end, a claim that raised questions regarding his employment status and thus warranted further clarification from the employer. The intervention by this Court, in that case, was essential to ensure that accurate and complete information regarding the petitioner’s employment conditions was provided, given the potential impact on the case’s outcome. [26] By contrast, in the present case, the circumstances did not necessitate the employer's attendance. Here, there was no disagreement about the identity of the Plaintiff’s employer, nor was there any contention regarding the specific amount owed by the employer to the Plaintiff. These facts were clearly established and undisputed by either party, making the employer’s presence superfluous. Consequently, the Court determined that summoning the employer was unnecessary, as there were no ambiguities that required further evidence or clarification. ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 10 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… [27] In Thelagavathi a/p Murugesu v. Karuppusamy @ Selvaraj A/L K. Munisamy, the plaintiff-wife included a request for an attachment of earnings order within her application to vary the existing court order concerning maintenance payments the defendant-husband was obligated to provide for their child. This prayer was part of her broader appeal for modifications to the maintenance order, which aimed to secure a more reliable and direct method of payment by attaching a portion of the husband’s income. However, the Court in that case, dismissed this specific relief for an attachment of earnings on procedural grounds, as the plaintiff-wife had not followed the correct procedure as prescribed by law. Under the Married Women and Children (Enforcement of Maintenance) Act, an attachment of earnings order must be sought explicitly under section 5, which provides a dedicated legal mechanism for enforcing maintenance orders through direct deductions from the payer’s income. The Court in that case, noted that section 5 of the Married Women and Children (Enforcement of Maintenance) Act requires a separate application specifically for an attachment of earnings, distinct from a general application to vary an existing maintenance order. [28] In insisting that this Application was irregular, the Plaintiff further contended that the Defendant had failed to move the Court pursuant to rules 72 and 73 of the Divorce and Matrimonial Proceedings Rules 1980 (“Divorce and Matrimonial Proceedings Rules”). [29] In my opinion, this argument was unpersuasive because rule 72 of the Divorce and Matrimonial Proceedings Rules, which governs the enforcement of orders for payment of money, explicitly references ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 11 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… Order 46 of the Rules of Court 2012 (“Rules of Court”). Order 46 of the Rules of Court outlines specific enforcement mechanisms such as a writ of seizure and sale, a writ of possession, and a writ of delivery. These instruments are designed to facilitate the enforcement of monetary judgments and ensure compliance by allowing the creditor to seize or take possession of the debtor's property if necessary. However, it is notable that Order 46 of the Rules of Court makes no mention of an attachment of earnings order as an enforcement option within this framework. [30] Instead, an attachment of earnings order, which mandates deductions directly from the debtor's income to satisfy the payment order, is governed by separate legal provisions, typically found under statutes specifically designed for enforcing maintenance or similar payments. [31] Conversely, rule 73 of the Divorce and Matrimonial Proceedings Rules deals with judgment summonses under general provisions. Judgment summonses provide a separate route for compelling compliance with a judgment, often used to summon the judgment debtor to court to explain their failure to satisfy the order. Rule 73 of the Divorce and Matrimonial Proceedings Rules emphasises procedural requirements for judgment summonses but, like rule 72 of the Divorce and Matrimonial Proceedings Rules, it does not provide for the mechanism of an attachment of earnings order. [32] Therefore, both rules 72 and 73 of the Divorce and Matrimonial Proceedings Rules are limited in scope to particular enforcement methods and do not extend to an application for attachment of ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 12 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… earnings. This legal framework reinforces that an application for attachment of earnings should be pursued under specific statutory provisions dedicated to attachment of earnings rather than through general procedural rules for enforcement of judgments. [33] Rules 72 and 73 of the Divorce and Matrimonial Proceedings Rules, therefore, had no application to the present case. [34] Even if I agreed with the Plaintiff regarding rules 72 and 73 of the Divorce and Matrimonial Proceedings Rules, it would not be sufficient to dismiss this Application for the following reasons. [35] At this juncture, it was crucial to reaffirm the well-established legal principle that courts are generally disinclined to allow technicalities to hinder the administration of substantive justice, especially when such technical errors do not cause prejudice to the opposing party. This approach reflects a broader commitment to justice, where the primary goal is to resolve disputes based on the substantive rights and obligations of the parties involved. It recognises that procedural rules, while important, should not be used as instruments of injustice or as obstacles to the fair determination of a case. Where no harm or disadvantage is suffered by the opposing party, the courts are more likely to permit the correction of procedural irregularities, thereby facilitating a just outcome that reflects the true merits of the case. [36] This jurisprudential trend is discernible in numerous precedents, including Redang Paradise Vacation Sdn Bhd v. Yap Chuan Bin & Other Appeals [2017] 10 CLJ 296; Maril-Rionebel (M) Sdn Bhd & Anor ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 13 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… v. Perdana Merchant Bankers Bhd & Other Appeals [2001] 3 CLJ 248; and United Malayan Banking Corp Bhd v. Ernest Cheong Yong Yin [2001] 2 CLJ 31. [37] Considering the principle that the 'relation of the rules of practice to the work of justice is intended to be that of “handmaid” rather than a mistress"'; as articulated by Lord Collins MR in Re Coles And Ravenshear [1907] 1 KB 1, there was no justification in the present case for raising technicalities that had no bearing to the substance of this Application, especially since the Plaintiff had the knowledge of the payments he had willfully refused to make. [38] Moreover, it had been aptly stated by Hamid Sultan Abu Backer JCA (as he then was) in Reebok (M) Sdn Bhd v. CIMB Bank Bhd [2019] 9 CLJ 230 that "procedural skirmishes ought not to prevail, to defeat substantive justice". [39] As such, the objections raised by the Plaintiff regarding rules 72 and 73 of the Divorce and Matrimonial Proceedings Rules did not hold water. Whether this Application was unjustified [40] In urging the Court to dismiss this Application, the Plaintiff argued that issuing an order for the attachment of earnings would be unjust. He emphasised that the Court had the authority to assess the fairness and merits of the case, as outlined in section 4(1) of the Married Women and Children (Enforcement of Maintenance) Act. The Plaintiff contended that this provision granted the Court discretion to consider ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 14 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… the overall circumstances and to determine whether such an order would be equitable in light of the specific facts of the case. [41] The Plaintiff relied on a case decided by this Court, namely Yong Jia Hui v Chan Seh Wai [2023] CLJU 762, where it was stated in the following passage: [25] It must also be borne in mind that an attachment of earnings order is a severe form of enforcement as it involves the Court ordering the Respondent's employer to make monthly deductions, which in turn would reduce the Respondent's income. It is also a form of declaration of the Respondent's financial conundrum which may be embarrassing and damaging to his reputation. Furthermore, I had to note that the Respondent had been regular in making the monthly payment of MYR2,000. [Emphasis added.] [42] The issue, therefore, was whether justice of the case dictated that this Application should be allowed. While it was accurate to assert that an attachment of earnings order represents a stringent form of enforcement, the circumstances of Yong Jia Hui v. Chan Seh Wai are notably distinguishable from the present case. [43] In Yong Jia Hui, the respondent-husband consistently adhered to the monthly payment obligation of MYR2,000, demonstrating regularity and commitment in fulfilling his financial responsibilities. This stands in contrast to the current case, where the Plaintiff had not maintained such consistency in meeting his payment obligations. Consequently, the respondent’s compliance in Yong Jia Hui reflected a significantly different context, justifying a more restrained approach to enforcement, ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 15 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… unlike the present matter where stricter measures may be deemed necessary to ensure regular support payments. [44] To reinforce his position that granting this Application would be inequitable, the Plaintiff argued that he was currently facing significant financial hardship. He claimed that his financial situation made it impossible for him to meet the combined monthly obligation of MYR 5,000 for both spousal and child maintenance. In an effort to substantiate his assertion, the Plaintiff provided an itemisation of his monthly expenses, highlighting the specific costs he incurs to demonstrate that he lacks the financial capacity to fulfill the maintenance obligations. The breakdown of his expenses was as follows: No Butiran Jumlah 1. Gaji bersih 19,100 2. Sewaan rumah 1,500 3. Caj utiliti 600 4. Ansuran kereta 3,000 5. Perbelanjaan sara hidup dan bil kad kredit 8,400 6. Peranti Pemantuan Glukosa Berterusan 600 7. Bayaran kepada bapa 2,000 8. Bayaran kepada ibu 2,000 Tinggal 1,000 ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 16 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… [45] I found it difficult to accept the Plaintiff’s argument for several compelling reasons. Firstly, when the Court Order was issued, I had meticulously considered the financial circumstances and needs of both the Plaintiff and the Defendant. Notably, in the affidavit supporting the Plaintiff’s Application, he had actually agreed to a monthly spousal maintenance payment of MYR3,000 and a monthly child maintenance payment of MYR1,500, although the Defendant’s request was for significantly higher amounts of MYR6,000 and MYR4,000 for spousal and child maintenance, respectively. [46] I held the view that the Defendant, who was 38 years old at the time of the hearing of the Plaintiff’s Application, was both physically capable and fit for employment. Given these circumstances, the Plaintiff’s obligation to pay a monthly spousal maintenance of MYR3,000 instead of MYR6,000 was not only reasonable but also equitable. Therefore, the Plaintiff’s current claim that he was unable to fulfill the total monthly obligation of MYR5,000 was unconvincing and did not align with the commitments he had previously accepted. This lack of credibility raised questions about the sincerity of his financial difficulties. [47] Secondly, following the granting of the Court Order, the Plaintiff did not file an appeal against that decision. Instead, he opted to file an application for variation (“the Variation Application”) only in June 2024, which was subsequent to the filing of this Application. The timing of the Variation Application was, in my view, indicative of a reactive measure prompted by the circumstances surrounding this Application, rather than a proactive effort to address his obligations. The Variation Application was dismissed by the Court, which further underscored the ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 17 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… lack of merit in the Plaintiff’s claims regarding his financial capacity and obligations. [48] Thirdly, the Plaintiff had also failed to substantiate his list of financial commitments with any credible evidence. Instead, he presented an arbitrary list of expenses without supporting documentation. In my assessment, financial obligations and expenses are inherently variable, subject to fluctuations based on numerous factors. Given this context, the Plaintiff’s assertion that he was unable to afford a combined monthly amount of MYR5,000 for both spousal and child maintenance lacked credibility and was ultimately untenable. [49] The Plaintiff had even contended he was required to set aside MYR4,000 for his parents. I found this contention untenable. While the Plaintiff's role as a filial son was commendable, it did not exempt him from fulfilling his financial obligations for spousal and child maintenance. His sense of duty to support his parents, though admirable, could not take precedence over his legal responsibilities to his former spouse and child, which the Court must prioritise in considering the fairness of his financial claims. [50] Any attempt to prioritise the needs or financial support of other family members, including the Plaintiff’s own parents, over the essential welfare of his Child, is an unacceptable breach of this duty. This Court viewed such neglect as a failure to uphold the rights and best interests of the Child, who is entitled to adequate provision for her health, education, and overall well-being. ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 18 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… [51] The law is clear – a parent’s primary responsibility is to his child, and no other financial obligation supersedes this commitment. In cases where a parent fails to prioritise his child’s needs, the Court has the authority and duty to intervene. The Court will consider any disregard for this duty a serious violation and will act to ensure the child’s welfare is protected and that his right to financial support is enforced. Let it be understood that this Court considers the well-being of the child paramount, and any deviation from this responsibility will be met with stringent corrective actions to uphold the priority of the child’s needs above all else. [52] The Plaintiff strongly argued for the Court to dismiss this Application, asserting that allowing it would cause him undue embarrassment. In my view, the Plaintiff's primary obligation was simply to comply with the Court Order. In reality, any embarrassment experienced by the Plaintiff should stem not from an attachment of his earnings, but rather from his failure to fulfill his legal responsibilities by refusing to pay the court- ordered spousal and child maintenance. Complying with these obligations should take precedence over concerns about personal discomfort or embarrassment, as the maintenance payments are essential for the well-being of his dependents. [53] The Plaintiff’s monetary obligation to pay spousal and child maintenance are clearly expressed in the Court Order, and as stipulated in sections 77 and 92 of the Law Reform (Marriage and Divorce) Act 1976, both of which read: Section 77 – Power of court to order maintenance of spouse ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 19 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… (1) The court may order a man to pay maintenance to his wife or former wife- (a) during the course of any matrimonial proceedings; (b) when granting or subsequent to the grant of a decree of divorce or judicial separation; (c) if, after a decree declaring her presumed to be dead, she is found to be alive. **** Section 92 – Duty to maintain children : 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. [Emphasis added.] Conclusion [54] In conclusion, after a comprehensive review and judicious consideration of all the evidence adduced, including written and oral submissions from both Parties, this Application was allowed with costs. Dated: 17 November 2024 ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 20 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… SIGNED …………………………………………. (EVROL MARIETTE PETERS) Judge High Court, Kuala Lumpur Counsel: For the Plaintiff – Chen Yu Szen and Heng Kian Tee; Messrs Anton & Chen For the Defendant – Manpreet Kaur Sandhu, Emilia Van Buerle and Jason Ling Yong Chuan; Messrs Peter Ling & Co Cases referred to: ➢ Geh Thuan Hooi v. Serene Lim Paik Yan [2012] CLJU 132 ➢ Maril-Rionebel (M) Sdn Bhd & Anor v. Perdana Merchant Bankers Bhd & Other Appeals [2001] 3 CLJ 248 ➢ Re Coles And Ravenshear [1907] 1 KB 1 ➢ Redang Paradise Vacation Sdn Bhd v. Yap Chuan Bin & Other Appeals [2017] 10 CLJ 296 ➢ Reebok (M) Sdn Bhd v. CIMB Bank Bhd [2019] 9 CLJ 230 ➢ Thelagavathi A/P Murugesu v Karuppusamy @ Selvaraj A/L K. Munisamy [2010] MLJU 1887 ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 21 **Note : Serial number will be used to verify the originality of this document via eFILING portal WA-24F-71-03/2023 17 November 2024 ……………………………………………………………………………………………… ➢ United Malayan Banking Corp Bhd v. Ernest Cheong Yong Yin [2001] 2 CLJ 31 ➢ Yong Jia Hui v Chan Seh Wai [2023] CLJU 762 Legislation referred to: ➢ Divorce and Matrimonial Proceedings Rules 1980 – rules 72, 73 ➢ Law Reform (Marriage & Divorce) Act 1976 – sections 77, 92 ➢ Married Women And Children (Enforcement Of Maintenance) Act 1968 – sections 4, 5, 8 ➢ Rules of Court 2012 – Order 46 ……………………………………………………………………………………………… S/N TiuxPAjHd0eYy1mUoc9paA 22 **Note : Serial number will be used to verify the originality of this document via eFILING portal