TUTORIAL 11

MAINTENANCE

1. Madam Angammah has been married to Singam for 21 years. She has 4 children.
Selvam aged 20 years, who is mentally retarded, Ratnam aged 19 years, a
university student, Selvi aged 16 years who is working as a housemaid and Rani
aged 15 years a secondary school student.

Singam is a clerk with Poh Hup Construction Company and earns about $900/- He
spends most of his money on gambling and drinks and quite often the family
survive on the RM120 that Selvi earns. Ratnam has not been able to get a
scholarship and is still waiting for a loan from the University Loan Fund. Madam
Angammah cannot go out to work as she has to look after Selvam who cannot be
left alone.

She consults you as she wishes to know if she can get an order for maintenance
for herself and her 4 children. Advise her as to the law on maintenance.

Married Women and Children (Maintenance) Act 1950

3. (1) If any person neglects or refuses to maintain his wife or a legitimate child of his
which is unable to maintain itself, a court, upon due proof thereof, may order such
person to make a monthly allowance for the maintenance of his wife or such child, in
proportion to the means of such person, as to the court seems reasonable.

In the case of Raquiza v Raquiza, the court held that it is the husband’s common law
duty to maintain his wife, and the onus is upon him to show that for some good reason
he is excused from the performance of that duty and that would be if he could show that
his wife is living in adultery, or if without any sufficient reason she refuses to live with
her husband. In this case the husband claimed that the wife had her own income
therefore he need not maintain her but the court stated that the husband is not relieved
from his duty to maintain his wife. The principle is that if there are no children the
amount should come up to one third of the joint income. However, both of them had
obligations in the form of aged parents to maintain. If the court ordered the amount of
one third of the joint income as maintenance, he would have left the husband and his
parents’ destitute. He finally decided upon $30 a month as a fair amount.

In Thevathasen v Thevathasen, the court of the view that the wife should go out to
work in her own interest, and the fact that she was partly to blame for the breakup of the
marriage was an additional reason for taking her potential earning capacity into account.
The court reduced the maintenance from $450 to $300 per month.
(2) If any person neglects or refuses to maintain an illegitimate child of his which is
unable to maintain itself, a court, upon due proof thereof, may order such person to
make such monthly allowance, as to the court seems reasonable.

(3) Such allowance shall be payable from the date of such neglect or refusal or from
such later date as may be specified in the order.

In Amrick Lall v Sombaiavati, the magistrate’s court had made an order for
maintenance on 30 November 1972 with arrears to be paid from 1 November 1968.
Although in law the wife might be entitled to enforce payment of the whole of the arrears
available, a practice had grown up in the Divorce Division that arrears should not be
enforced for a period of more than 12 months.

In the case of Gangagharan v Sathiabhama, the court stated the rationale of courts in
England to order arrears for maintenance not longer than one year is because the court
treats the payment as a fund for maintenance and not as a property. The judge could
not see any reason to depart from the common law practice.

However, in the case of Lee Yu Lan v Lim Thain Chye was of the view that the court
would not be precluded in the absence of an express provision to that effect, from
making any order for past maintenance by virtue of the act from an antecedent date of
neglect or refusal to maintain.

5. (1) If any person, against whom an order has been applied for or made for the
maintenance of his wife, offers to maintain his wife on condition of her living with him,
and his wife refuses to do so, the court shall consider any grounds of refusal stated by
such wife, and may make or enforce the order aforesaid, notwithstanding such offer, if it
is satisfied that such person is living in adultery or for any other reason it is just so to do.
Cases in which wife not entitled to allowance

In the case of Choong Hooi v Tee Ngi, the court stated that there are three conditions
which is:

i. did the appellant husband at any time offer to maintain his wife
on condition of her living with him?
ii. If so, did the wife refuse to live with him?
iii. If so, did the wife have sufficient reason for refusing to live with
her husband?

In the case of Ranjit Singh v Jaswant Kaur, the court stated that it was impossible to
accept the honesty of the husband that he was genuinely willing to take his wife back.
The court considered that the wife’s refusal to live with her husband after about nine
years of separation have passed was based on good grounds.

In the case Marimuthu v Thiruchitambalam, the court stated that a wife is entitled to
live with that amount of decency and dignity which prevails in her class and if the
treatment if the husband towards her does not permit her to lead such a life, his conduct
amounts to a neglect ad refusal to maintain within the meaning of section 3 of the
Ordinance therefore the appellant had sufficient cause for living apart from the
respondent.

(2) No wife shall be entitled to receive an allowance from her husband under this Act if
she is living in adultery, or if, without any sufficient reason, she refuses to live with her
husband.

In the case of Rajalachmi v Sinniah, the court held that adultery must be proved
beyond reasonable doubt where the meaning of living in adultery cannot be held unless
continuity of conduct was established.

6. (1) On the application of any person receiving or ordered to pay a monthly allowance
under this Act, and on proof of a change in the circumstances of such person, his wife
or child, or for other good cause being shown to the satisfaction of the court, the court
by which such order was made, may rescind the order or may vary it as to it seems
reasonable.

(2) Without prejudice to the extent of the discretion conferred upon the court by
subsection (1), the court may, in considering any application made under this section,
take into consideration any change in the general cost of living which may have
occurred between the date of the making of the order sought to be varied and the date
of the hearing of the application.

In the case of Lee Swee Peng v Koon Kum Keng, the court noted that the husband
was drawing a salary of $262 a month, married, and had to support an old mother of 61
years old. His monthly expenditure amounted to $258.20. he had therefore to exercise
strict economy in his expenditure to meet the maintenance of the child.

Married Women and Children (Enforcement of Maintenance) Act 1968 (Revised

1988)

3. In this Act, unless the context otherwise requires-- "attachment of earnings order"
means an order made under section 4;

"the court" means the court competent to make a maintenance order;

"defendant", in relation to a maintenance order or a related attachment of earnings

order, means the person liable to make payments under the maintenance order;

"earnings", in relation to a defendant, means any sums payable to him--

(a) by way of wages or salary, including any fees, bonus, commission, overtime pay or
other emoluments payable in addition to wages or salary by the person paying the
wages or salary or payable under a contract of service;
(b) by way of pension, including gratuity and an annuity in respect of past services,
whether or not the services were rendered to the person paying the annuity, and
including periodical payments by way of compensation for the loss, abolition or
relinquishment, or any diminution in the emoluments, of any office or employment;

"employer" means a person by whom, as a principal and not as a servant or agent,

earnings fall to be paid to a defendant, and references to payment of earnings shall be
construed accordingly; "maintenance order" means--

(a) an order made under section 3 of the Married Women and Children (Maintenance)
Act 1950 [Act 263];

(b) an order for the payment of periodical sums by way of maintenance or alimony to a
wife or for the benefit of any child under the Law Reform (Marriage and Divorce) Act
1976 [Act 164];

(c) a maintenance order confirmed by the court under the Maintenance Orders
(Facilities for Enforcement) Act 1949 [Act 34]; and

(d) where this Act are made applicable by virtue of an authorization under section 14 to
or in respect of a maintenance order made by a Syariah Court shall include such order.

4. (1) Notwithstanding any written law to the contrary, the court may, upon application
by 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.

(2) An application for an attachment of earnings order may be made in the proceedings
in which a maintenance order is applied for or in any subsequent proceedings.

5. (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 falling 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 he must or reasonably should
provide.

6. (1) When an attachment of earnings order is made, all other proceedings for the
enforcement of the related maintenance order begun before the making of the
attachment of earnings order shall be suspended.

(2) The court by which an attachment of earnings order has been made may, if it thinks
fit, on the application of the defendant or a person entitled to receive payments under
the related maintenance order, make an order discharging or varying the attachment of
earnings order.

(3) An attachment of earnings order shall cease to have effect—

(a) upon the issue of a warrant directing that the amount due under the related
maintenance order shall be levied in the manner provided by law for levying fines;

(b) upon the making of an order sentencing the defendant to imprisonment for
failure to comply with the related maintenance order; and

(c) upon the rescission of the related maintenance order, and where an
attachment of earnings order ceases to have effect as aforesaid the court making
such order shall give notice of the cessation to the person to whom the order was
directed.

7. (1) A person to whom an attachment of earnings order is directed shall,

notwithstanding anything in any other written law but subject to this Act, comply with the
order or, if the order is subsequently varied under section 6, with the order as so varied.

LRA

Maintenance of the spouses

77. (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

(2) 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

In the case of Yay v Who & Anor, the court stated that there is no hard and fast rule
that a man must maintain his wife or former wife. Provisions of the Law Reform
(Marriage & Divorce) was determined during a time when the demarcation of the rules
of husband and wife were clear, where most woman were stay-home mothers and were
financially dependent on their husbands who were the breadwinners for the family.
However, a whole generation has transitioned since the Law Reform (Marriage &
Divorce) Act was enacted and along with it, the traditional roles of husband and wife
have evolved. Women are no longer relegated to merely handling household-matters.
Gone are the days where a woman’s only place was in the kitchen. As such there is no
automatic right for a woman to claim maintenance from her husband. All factors must be
considered for this court to determine if maintenance from the respondent is justified.

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.

in the case of Lee Yu Lan v Lim Thian Chye, the court took into account the
responsibility on the part of the husband for the breakdown of the marriage, in
connection of the co respondent, among other factors before arriving at an appropriate
sum of maintenance.

In the subsequent case of Goh Kim Hwa v Khoo Swee Huah, the court had rejected
the husband's allegations that the wife was to be blamed for the breakdown of their
marriage.

79. The court may in its discretion when awarding maintenance order the person liable
to pay such maintenance to secure the whole or any part of it by vesting any property in
trustees upon trust to pay such maintenance or part thereof out of the income from such
property and, subject thereto, in trust for the settlor.

80. An agreement for the payment, in money or other property, of a capital sum in
settlement of all future claims to maintenance, shall not be effective until it has been
approved, or approved subject to conditions, by the court, but when so approved shall
be a good defence to any claim for maintenance.

84. Subject to section 80, the court may at any time and from time to time vary the
terms of any agreement as to maintenance made between husband and wife, whether
made before or after the appointed date, where it is satisfied that there has been any
material change in the circumstances and notwithstanding any provision to the contrary
in any such agreement.

In the case of Lim Thian Kiat v Teresa Haesook Lim & Anor, the HC held that the
separation deed between the parties in that case concerning maintenance of the
respondent and the children were subject to variation by the court as provided for under
section 80, 84 (wife), and 97(children) of the LRA.

81. Except where an order for maintenance is expressed to be for any shorter period or
where any such order has been rescinded, and subject to section 82, an order for
maintenance shall expire—
 (a) if the maintenance was unsecured, on the death of the husband or of the
wife, whichever is the earlier;

(b) if the maintenance was secured, on the death of the spouse in whose favour
it was made.

82.(1) The right of any divorced person to receive maintenance from his or her former
spouse under any order of court shall cease on his or her marriage to or living in
adultery with any other person.

(2) The right of any divorced person to receive maintenance from his or her former
spouse under an agreement shall cease on his or her marriage to or living in adultery
with any other person unless the agreement otherwise provides.

83. The court may at any time and from time to time vary, or rescind, any subsisting
order for maintenance, whether secured or unsecured, on the application of the person
in whose favour or of the person against whom the order was made, or, in respect of
secured maintenance, of the legal personal representatives of the latter, where it is
satisfied that the order was based on any misrepresentation or mistake of fact or where
there has been any material change in the circumstances.

In the case of Gisela Gertrud Abe v Tan Wee Kiat, the HC rescinded the maintenance
order for a limited period, which coincided with the period the respondent husband was
without employment. The judge was of the opinion that the word ‘vary’ should be given
a wide meaning and should not be confined only to increase or reduce the amount of
the periodical payments of maintenance for the wife or the children of the marriage but
also to include power to suspend the maintenance order or any provisions therein
temporarily and to revive the operation of the maintenance order or any provisions so
suspended.

In Anna Tay Siew Hong v Joseph Ng Tiong Yong, a maintenance order was made
upon the divorce of the petitioner and the respondent. The respondent had been paying
RM500 per month for many years but defaulted in his payments, as a result of which the
petitioner obtained leave to issue a judgment summons against the respondent. The
respondent filed an application for a rescission of the said maintenance order citing
material changes in circumstances since the order was issued. He was 60 years old,
suffering from several ailments had no permanent work nor property and was
dependent on his second wife for financial report. The court allowed the application for
rescission of the maintenance order since there had indeed been material changes in
the circumstances both of the respondent and the petitioner.

In Lim Bee Kee v Leong Ah Chuan, the respondent had been paying RM600
maintenance for the petitioner and the three children of the marriage and applied to the
HC to have the amount reduced to RM300 a month. The court dismissed the application
as the respondent failed to to prove on the balance of probabilities that there had been
material change in the circumstances since the making of the order for maintenance.
85. Maintenance payable to any person under any order of court shall not be assignable
or transferable or liable to be attached, sequestered or levied upon for, or in respect of,
any debt or claim whatsoever.

86. (3) No amount owing as maintenance shall be recoverable in any suit if it accrued
due more than three years before the institution of the suit.

Maintenance of the Child

87. In this Part, wherever the context so requires, “child” has the meaning of “child of
the marriage” as defined in section 2 who is under the age of eighteen years.

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.

93. (1) The court may at any time order a man to pay maintenance for the benefit of his
child— (a) if he has refused or neglected reasonably to provide for the child; (b) if he
has deserted his wife and the child is in her charge; (c) during the pendency of any
matrimonial proceedings; or (d) when making or subsequent to the making of an order
placing the child in the custody of any other person.

In the case of Saraswathy v Palakrishnan, the court held that there was no need for a
divorce petition to be filed before section 93 could be invoked in favour of children.

(2) 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.
(3) 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.

95.Except where an order for custody or maintenance of a child is expressed to be for

any shorter period or where any such order has been rescinded, it shall expire on the
attainment by the child of the age of eighteen years or where the child is under physical
or mental disability, on the ceasing of such disability, whichever is the later.

In the case of Karunairajah v Punithambigai, the appellant, pursuant to his divorce

and an order of the High Court had paid maintenance for his children. After his eldest
child had reached 18 years old in May 1998, he had stopped such payments on the
grounds that she was above 18 years old. The respondent’s application to make such
payments was allowed. The applicant's appeal was dismissed. The issue was whether
upon a proper constitution of s 95 of the Law Reform (Marriage & Divorce) Act1976, the
involuntary financial dependence of a child of the marriage for the purposes of pursuing
and/or completing tertiary and/or vocational education comes within the
exception of physical or mental disability so as to entitle the child to maintenance
beyond the age of 18 years.Decision:Appeal allowed. Question posed to the court
answered in negative.

96. The court may at any time and from time to time vary, or may rescind, any order for
the custody or maintenance of a child on the application of any interested person, where
it is satisfied that the order was based on any misrepresentation or mistake of fact or
where there has been any material change in the circumstances.

98. Section 86 shall apply, mutatis mutandis, to orders for the payment of maintenance
for the benefit of any child.

99. (1) Where a man has accepted a child who is not his child as a member of his family,
it shall be his duty to maintain such child while he or she remains a child, so far as the
father and the mother of the child fail to do so, and the court may make such orders as
may be necessary to ensure the welfare of the child:

Provided that the duty imposed by this subsection shall cease if the child is taken away
by his or her father or mother.

(2) Any sums expended by a man maintaining such child shall be recoverable as a debt
from the father or mother of the child.

100. When considering any question relating to the custody or maintenance of any child,
the court shall, whenever it is practicable, take the advice of some person, whether or
not a public officer, who is trained or experienced in child welfare but shall not be bound
to follow such advice.
101. (2) For the purposes of this section—

“disposition” includes a sale, gift, lease, mortgage or any other transaction whereby
ownership or possession of the property is transferred or encumbered but does not
include a disposition made for money or money’s worth to or in favour of a person
acting in good faith and in ignorance of the object with which the disposition is made;

2. Mary and Joseph were married on 24th September 2010 and have 6 children, aged
between 2 years and 10 years. The matrimonial home is registered in Joseph’s
name and most of the furniture was bought by Mary from her earnings prior to the
marriage. She has, since marriage, been a housewife. She loves cooking for the
family and keeping the house well maintained.
 Joseph was retrenched by his firm and since then has been lazing around the
home, making no attempts to look for another job. Their savings has finished and
Mary has had to borrow money from friends and do part time work to feed the
family. Lately, Joseph began using abusive words on Mary and the children and
threatened to stop the older children from schooling.

It is now one year since Joseph was retrenched. A close friend of his, Michael has
offered him a job with a salary of RM1,200 a month. He has accepted the offer.
Mary nevertheless plans to seek divorce, as she cannot tolerate Joseph’s
behavior anymore. She wishes to know what her rights in relation to maintenance
are and how this right may be enforced. Advise her.

Married Women and Children (Maintenance) Act 1950

3. (1) If any person neglects or refuses to maintain his wife or a legitimate child of his
which is unable to maintain itself, a court, upon due proof thereof, may order such
person to make a monthly allowance for the maintenance of his wife or such child, in
proportion to the means of such person, as to the court seems reasonable.

In the case of Raquiza v Raquiza, the court held that it is the husband’s common law
duty to maintain his wife, and the onus is upon him to show that for some good reason
he is excused from the performance of that duty and that would be if he could show that
his wife is living in adultery, or if without any sufficient reason she refuses to live with
her husband. In this case the husband claimed that the wife had her own income
therefore he need not maintain her but the court stated that the husband is not relieved
from his duty to maintain his wife. The principle is that if there are no children the
amount should come up to one third of the joint income. However, both of them had
obligations in the form of aged parents to maintain. If the court ordered the amount of
one third of the joint income as maintenance, he would have left the husband and his
parents’ destitute. He finally decided upon $30 a month as a fair amount.

(3) Such allowance shall be payable from the date of such neglect or refusal or from
such later date as may be specified in the order.

In Amrick Lall v Sombaiavati, the magistrate’s court had made an order for
maintenance on 30 November 1972 with arrears to be paid from 1 November 1968.
Although in law the wife might be entitled to enforce payment of the whole of the arrears
available, a practice had grown up in the Divorce Division that arrears should not be
enforced for a period of more than 12 months.

In the case of Gangagharan v Sathiabhama, the court stated the rationale of courts in
England to order arrears for maintenance not longer than one year is because the court
treats the payment as a fund for maintenance and not as a property. The judge could
not see any reason to depart from the common law practice.

However, in the case of Lee Yu Lan v Lim Thain Chye was of the view that the court
would not be precluded in the absence of an express provision to that effect, from
making any order for past maintenance by virtue of the act from an antecedent date of
neglect or refusal to maintain.

5. (1) If any person, against whom an order has been applied for or made for the
maintenance of his wife, offers to maintain his wife on condition of her living with him,
and his wife refuses to do so, the court shall consider any grounds of refusal stated by
such wife, and may make or enforce the order aforesaid, notwithstanding such offer, if it
is satisfied that such person is living in adultery or for any other reason it is just so to do.
Cases in which wife not entitled to allowance

In the case of Choong Hooi v Tee Ngi, the court stated that there are three conditions
which is:

iv. did the appellant husband at any time offer to maintain his wife
on condition of her living with him?
v. If so, did the wife refuse to live with him?
vi. If so, did the wife have sufficient reason for refusing to live with
her husband?

In the case of Ranjit Singh v Jaswant Kaur, the court stated that it was impossible to
accept the honesty of the husband that he was genuinely willing to take his wife back.
The court considered that the wife’s refusal to live with her husband after about nine
years of separation have passed was based on good grounds.

In the case Marimuthu v Thiruchitambalam, the court stated that a wife is entitled to
live with that amount of decency and dignity which prevails in her class and if the
treatment if the husband towards her does not permit her to lead such a life, his conduct
amounts to a neglect ad refusal to maintain within the meaning of section 3 of the
Ordinance therefore the appellant had sufficient cause for living apart from the
respondent.

(2) No wife shall be entitled to receive an allowance from her husband under this Act if
she is living in adultery, or if, without any sufficient reason, she refuses to live with her
husband.

In the case of Rajalachmi v Sinniah, the court held that adultery must be proved
beyond reasonable doubt where the meaning of living in adultery cannot be held unless
continuity of conduct was established.

6. (1) On the application of any person receiving or ordered to pay a monthly allowance
under this Act, and on proof of a change in the circumstances of such person, his wife
or child, or for other good cause being shown to the satisfaction of the court, the court
by which such order was made, may rescind the order or may vary it as to it seems
reasonable.
(2) Without prejudice to the extent of the discretion conferred upon the court by
subsection (1), the court may, in considering any application made under this section,
take into consideration any change in the general cost of living which may have
occurred between the date of the making of the order sought to be varied and the date
of the hearing of the application.

In the case of Lee Swee Peng v Koon Kum Keng, the court noted that the husband
was drawing a salary of $262 a month, married, and had to support an old mother of 61
years old. His monthly expenditure amounted to $258.20. he had therefore to exercise
strict economy in his expenditure to meet the maintenance of the child.

Married Women and Children (Enforcement of Maintenance) Act 1968 (Revised

1988)

3. In this Act, unless the context otherwise requires-- "attachment of earnings order"
means an order made under section 4;

"the court" means the court competent to make a maintenance order;

"defendant", in relation to a maintenance order or a related attachment of earnings

order, means the person liable to make payments under the maintenance order;

"earnings", in relation to a defendant, means any sums payable to him--

(b) by way of wages or salary, including any fees, bonus, commission, overtime pay or
other emoluments payable in addition to wages or salary by the person paying the
wages or salary or payable under a contract of service;

(b) by way of pension, including gratuity and an annuity in respect of past services,
whether or not the services were rendered to the person paying the annuity, and
including periodical payments by way of compensation for the loss, abolition or
relinquishment, or any diminution in the emoluments, of any office or employment;

"employer" means a person by whom, as a principal and not as a servant or agent,

earnings fall to be paid to a defendant, and references to payment of earnings shall be
construed accordingly; "maintenance order" means--

(a) an order made under section 3 of the Married Women and Children (Maintenance)
Act 1950 [Act 263];

(b) an order for the payment of periodical sums by way of maintenance or alimony to a
wife or for the benefit of any child under the Law Reform (Marriage and Divorce) Act
1976 [Act 164];

(c) a maintenance order confirmed by the court under the Maintenance Orders
(Facilities for Enforcement) Act 1949 [Act 34]; and
(d) where this Act are made applicable by virtue of an authorization under section 14 to
or in respect of a maintenance order made by a Syariah Court shall include such order.

4. (1) Notwithstanding any written law to the contrary, the court may, upon application
by 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.

(2) An application for an attachment of earnings order may be made in the proceedings
in which a maintenance order is applied for or in any subsequent proceedings.

5. (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 falling 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 he must or reasonably should
provide.

6. (1) When an attachment of earnings order is made, all other proceedings for the
enforcement of the related maintenance order begun before the making of the
attachment of earnings order shall be suspended.

(2) The court by which an attachment of earnings order has been made may, if it thinks
fit, on the application of the defendant or a person entitled to receive payments under
the related maintenance order, make an order discharging or varying the attachment of
earnings order.

(3) An attachment of earnings order shall cease to have effect—

(a) upon the issue of a warrant directing that the amount due under the related
maintenance order shall be levied in the manner provided by law for levying fines;

(b) upon the making of an order sentencing the defendant to imprisonment for
failure to comply with the related maintenance order; and

(c) upon the rescission of the related maintenance order, and where an
attachment of earnings order ceases to have effect as aforesaid the court making
such order shall give notice of the cessation to the person to whom the order was
directed.

7. (1) A person to whom an attachment of earnings order is directed shall,

notwithstanding anything in any other written law but subject to this Act, comply with the
order or, if the order is subsequently varied under section 6, with the order as so varied.
LRA

Maintenance of the spouses

78. (1) The court may order a man to pay maintenance to his wife or former wife—

(c) during the course of any matrimonial proceedings;

(d) when granting or subsequent to the grant of a decree of divorce or judicial
separation;

(2) 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

In the case of Yay v Who & Anor, the court stated that there is no hard and fast rule
that a man must maintain his wife or former wife. Provisions of the Law Reform
(Marriage & Divorce) was determined during a time when the demarcation of the rules
of husband and wife were clear, where most woman were stay-home mothers and were
financially dependent on their husbands who were the breadwinners for the family.
However, a whole generation has transitioned since the Law Reform (Marriage &
Divorce) Act was enacted and along with it, the traditional roles of husband and wife
have evolved. Women are no longer relegated to merely handling household-matters.
Gone are the days where a woman’s only place was in the kitchen. As such there is no
automatic right for a woman to claim maintenance from her husband. All factors must be
considered for this court to determine if maintenance from the respondent is justified.

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.

in the case of Lee Yu Lan v Lim Thian Chye, the court took into account the
responsibility on the part of the husband for the breakdown of the marriage, in
connection of the co respondent, among other factors before arriving at an appropriate
sum of maintenance.

In the subsequent case of Goh Kim Hwa v Khoo Swee Huah, the court had rejected
the husband's allegations that the wife was to be blamed for the breakdown of their
marriage.

82. The court may in its discretion when awarding maintenance order the person liable
to pay such maintenance to secure the whole or any part of it by vesting any property in
trustees upon trust to pay such maintenance or part thereof out of the income from such
property and, subject thereto, in trust for the settlor.

83. An agreement for the payment, in money or other property, of a capital sum in
settlement of all future claims to maintenance, shall not be effective until it has been
approved, or approved subject to conditions, by the court, but when so approved shall
be a good defence to any claim for maintenance.

88. Subject to section 80, the court may at any time and from time to time vary the
terms of any agreement as to maintenance made between husband and wife, whether
made before or after the appointed date, where it is satisfied that there has been any
material change in the circumstances and notwithstanding any provision to the contrary
in any such agreement.

In the case of Lim Thian Kiat v Teresa Haesook Lim & Anor, the HC held that the
separation deed between the parties in that case concerning maintenance of the
respondent and the children were subject to variation by the court as provided for under
section 80, 84 (wife), and 97(children) of the LRA.

84. Except where an order for maintenance is expressed to be for any shorter period or
where any such order has been rescinded, and subject to section 82, an order for
maintenance shall expire—

(a) if the maintenance was unsecured, on the death of the husband or of the
wife, whichever is the earlier;

(b) if the maintenance was secured, on the death of the spouse in whose favour
it was made.

82.(1) The right of any divorced person to receive maintenance from his or her former
spouse under any order of court shall cease on his or her marriage to or living in
adultery with any other person.

(2) The right of any divorced person to receive maintenance from his or her former
spouse under an agreement shall cease on his or her marriage to or living in adultery
with any other person unless the agreement otherwise provides.

83. The court may at any time and from time to time vary, or rescind, any subsisting
order for maintenance, whether secured or unsecured, on the application of the person
in whose favour or of the person against whom the order was made, or, in respect of
secured maintenance, of the legal personal representatives of the latter, where it is
satisfied that the order was based on any misrepresentation or mistake of fact or where
there has been any material change in the circumstances.
In the case of Gisela Gertrud Abe v Tan Wee Kiat, the HC rescinded the maintenance
order for a limited period, which coincided with the period the respondent husband was
without employment. The judge was of the opinion that the word ‘vary’ should be given
a wide meaning and should not be confined only to increase or reduce the amount of
the periodical payments of maintenance for the wife or the children of the marriage but
also to include power to suspend the maintenance order or any provisions therein
temporarily and to revive the operation of the maintenance order or any provisions so
suspended.

In Anna Tay Siew Hong v Joseph Ng Tiong Yong, a maintenance order was made
upon the divorce of the petitioner and the respondent. The respondent had been paying
RM500 per month for many years but defaulted in his payments, as a result of which the
petitioner obtained leave to issue a judgment summons against the respondent. The
respondent filed an application for a rescission of the said maintenance order citing
material changes in circumstances since the order was issued. He was 60 years old,
suffering from several ailments had no permanent work nor property and was
dependent on his second wife for financial report. The court allowed the application for
rescission of the maintenance order since there had indeed been material changes in
the circumstances both of the respondent and the petitioner.

In Lim Bee Kee v Leong Ah Chuan, the respondent had been paying RM600
maintenance for the petitioner and the three children of the marriage and applied to the
HC to have the amount reduced to RM300 a month. The court dismissed the application
as the respondent failed to to prove on the balance of probabilities that there had been
material change in the circumstances since the making of the order for maintenance.

89. Maintenance payable to any person under any order of court shall not be assignable
or transferable or liable to be attached, sequestered or levied upon for, or in respect of,
any debt or claim whatsoever.

90. (3) No amount owing as maintenance shall be recoverable in any suit if it accrued
due more than three years before the institution of the suit.

Maintenance of the Child

91. In this Part, wherever the context so requires, “child” has the meaning of “child of
the marriage” as defined in section 2 who is under the age of eighteen years.

94. 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.
95. (1) The court may at any time order a man to pay maintenance for the benefit of his
child— (a) if he has refused or neglected reasonably to provide for the child; (b) if he
has deserted his wife and the child is in her charge; (c) during the pendency of any
matrimonial proceedings; or (d) when making or subsequent to the making of an order
placing the child in the custody of any other person.

In the case of Saraswathy v Palakrishnan, the court held that there was no need for a
divorce petition to be filed before section 93 could be invoked in favour of children.

(4) 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.
(5) 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.

96.Except where an order for custody or maintenance of a child is expressed to be for

any shorter period or where any such order has been rescinded, it shall expire on the
attainment by the child of the age of eighteen years or where the child is under physical
or mental disability, on the ceasing of such disability, whichever is the later.

In the case of Karunairajah v Punithambigai, the appellant, pursuant to his divorce

and an order of the High Court had paid maintenance for his children. After his eldest
child had reached 18 years old in May 1998, he had stopped such payments on the
grounds that she was above 18 years old. The respondent’s application to make such
payments was allowed. The applicant's appeal was dismissed. The issue was whether
upon a proper constitution of s 95 of the Law Reform (Marriage & Divorce) Act1976, the
involuntary financial dependence of a child of the marriage for the purposes of pursuing
and/or completing tertiary and/or vocational education comes within the
exception of physical or mental disability so as to entitle the child to maintenance
beyond the age of 18 years.Decision:Appeal allowed. Question posed to the court
answered in negative.

96. The court may at any time and from time to time vary, or may rescind, any order for
the custody or maintenance of a child on the application of any interested person, where
it is satisfied that the order was based on any misrepresentation or mistake of fact or
where there has been any material change in the circumstances.

98. Section 86 shall apply, mutatis mutandis, to orders for the payment of maintenance
for the benefit of any child.

99. (1) Where a man has accepted a child who is not his child as a member of his family,
it shall be his duty to maintain such child while he or she remains a child, so far as the
father and the mother of the child fail to do so, and the court may make such orders as
may be necessary to ensure the welfare of the child:
Provided that the duty imposed by this subsection shall cease if the child is taken away
by his or her father or mother.

(3) Any sums expended by a man maintaining such child shall be recoverable as a debt
from the father or mother of the child.

102. When considering any question relating to the custody or maintenance of any child,
the court shall, whenever it is practicable, take the advice of some person, whether or
not a public officer, who is trained or experienced in child welfare but shall not be bound
to follow such advice.
103. (2) For the purposes of this section—

“disposition” includes a sale, gift, lease, mortgage or any other transaction whereby
ownership or possession of the property is transferred or encumbered but does not
include a disposition made for money or money’s worth to or in favour of a person
acting in good faith and in ignorance of the object with which the disposition is made;

3. Alan’s persistent drunkenness and the constant fights he had with his wife Mary
during which he would beat her mercilessly finally caused her to leave him. When
she applied to the court for an order of maintenance her husband offered to
maintain her if she would return to him. When she refused the Magistrate said
that she was not entitled to any maintenance. She wishes to appeal. Advise her.

Married Women and Children (Maintenance) Act 1950

3. (1) If any person neglects or refuses to maintain his wife or a legitimate child of his
which is unable to maintain itself, a court, upon due proof thereof, may order such
person to make a monthly allowance for the maintenance of his wife or such child, in
proportion to the means of such person, as to the court seems reasonable.

In the case of Raquiza v Raquiza, the court held that it is the husband’s common law
duty to maintain his wife, and the onus is upon him to show that for some good reason
he is excused from the performance of that duty and that would be if he could show that
his wife is living in adultery, or if without any sufficient reason she refuses to live with
her husband. In this case the husband claimed that the wife had her own income
therefore he need not maintain her but the court stated that the husband is not relieved
from his duty to maintain his wife. The principle is that if there are no children the
amount should come up to one third of the joint income. However, both of them had
obligations in the form of aged parents to maintain. If the court ordered the amount of
one third of the joint income as maintenance, he would have left the husband and his
parents’ destitute. He finally decided upon $30 a month as a fair amount.

(3) Such allowance shall be payable from the date of such neglect or refusal or from
such later date as may be specified in the order.

In Amrick Lall v Sombaiavati, the magistrate’s court had made an order for
maintenance on 30 November 1972 with arrears to be paid from 1 November 1968.
Although in law the wife might be entitled to enforce payment of the whole of the arrears
available, a practice had grown up in the Divorce Division that arrears should not be
enforced for a period of more than 12 months.

In the case of Gangagharan v Sathiabhama, the court stated the rationale of courts in
England to order arrears for maintenance not longer than one year is because the court
treats the payment as a fund for maintenance and not as a property. The judge could
not see any reason to depart from the common law practice.

However, in the case of Lee Yu Lan v Lim Thain Chye was of the view that the court
would not be precluded in the absence of an express provision to that effect, from
making any order for past maintenance by virtue of the act from an antecedent date of
neglect or refusal to maintain.

5. (1) If any person, against whom an order has been applied for or made for the
maintenance of his wife, offers to maintain his wife on condition of her living with him,
and his wife refuses to do so, the court shall consider any grounds of refusal stated by
such wife, and may make or enforce the order aforesaid, notwithstanding such offer, if it
is satisfied that such person is living in adultery or for any other reason it is just so to do.
Cases in which wife not entitled to allowance

In the case of Choong Hooi v Tee Ngi, the court stated that there are three conditions
which is:

vii. did the appellant husband at any time offer to maintain his wife
on condition of her living with him?
viii. If so, did the wife refuse to live with him?
ix. If so, did the wife have sufficient reason for refusing to live with
her husband?

In the case of Ranjit Singh v Jaswant Kaur, the court stated that it was impossible to
accept the honesty of the husband that he was genuinely willing to take his wife back.
The court considered that the wife’s refusal to live with her husband after about nine
years of separation have passed was based on good grounds.

In the case Marimuthu v Thiruchitambalam, the court stated that a wife is entitled to
live with that amount of decency and dignity which prevails in her class and if the
treatment if the husband towards her does not permit her to lead such a life, his conduct
amounts to a neglect ad refusal to maintain within the meaning of section 3 of the
Ordinance therefore the appellant had sufficient cause for living apart from the
respondent.

(2) No wife shall be entitled to receive an allowance from her husband under this Act if
she is living in adultery, or if, without any sufficient reason, she refuses to live with her
husband.

In the case of Rajalachmi v Sinniah, the court held that adultery must be proved
beyond reasonable doubt where the meaning of living in adultery cannot be held unless
continuity of conduct was established.

6. (1) On the application of any person receiving or ordered to pay a monthly allowance
under this Act, and on proof of a change in the circumstances of such person, his wife
or child, or for other good cause being shown to the satisfaction of the court, the court
by which such order was made, may rescind the order or may vary it as to it seems
reasonable.

(2) Without prejudice to the extent of the discretion conferred upon the court by
subsection (1), the court may, in considering any application made under this section,
take into consideration any change in the general cost of living which may have
occurred between the date of the making of the order sought to be varied and the date
of the hearing of the application.

In the case of Lee Swee Peng v Koon Kum Keng, the court noted that the husband
was drawing a salary of $262 a month, married, and had to support an old mother of 61
years old. His monthly expenditure amounted to $258.20. he had therefore to exercise
strict economy in his expenditure to meet the maintenance of the child.

Married Women and Children (Enforcement of Maintenance) Act 1968 (Revised

1988)

3. In this Act, unless the context otherwise requires-- "attachment of earnings order"
means an order made under section 4;

"the court" means the court competent to make a maintenance order;

"defendant", in relation to a maintenance order or a related attachment of earnings

order, means the person liable to make payments under the maintenance order;

"earnings", in relation to a defendant, means any sums payable to him--

(c) by way of wages or salary, including any fees, bonus, commission, overtime pay or
other emoluments payable in addition to wages or salary by the person paying the
wages or salary or payable under a contract of service;
(b) by way of pension, including gratuity and an annuity in respect of past services,
whether or not the services were rendered to the person paying the annuity, and
including periodical payments by way of compensation for the loss, abolition or
relinquishment, or any diminution in the emoluments, of any office or employment;

"employer" means a person by whom, as a principal and not as a servant or agent,

earnings fall to be paid to a defendant, and references to payment of earnings shall be
construed accordingly; "maintenance order" means--

(a) an order made under section 3 of the Married Women and Children (Maintenance)
Act 1950 [Act 263];

(b) an order for the payment of periodical sums by way of maintenance or alimony to a
wife or for the benefit of any child under the Law Reform (Marriage and Divorce) Act
1976 [Act 164];

(c) a maintenance order confirmed by the court under the Maintenance Orders
(Facilities for Enforcement) Act 1949 [Act 34]; and

(d) where this Act are made applicable by virtue of an authorization under section 14 to
or in respect of a maintenance order made by a Syariah Court shall include such order.

4. (1) Notwithstanding any written law to the contrary, the court may, upon application
by 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.

(2) An application for an attachment of earnings order may be made in the proceedings
in which a maintenance order is applied for or in any subsequent proceedings.

5. (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 falling 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 he must or reasonably should
provide.

6. (1) When an attachment of earnings order is made, all other proceedings for the
enforcement of the related maintenance order begun before the making of the
attachment of earnings order shall be suspended.

(2) The court by which an attachment of earnings order has been made may, if it thinks
fit, on the application of the defendant or a person entitled to receive payments under
the related maintenance order, make an order discharging or varying the attachment of
earnings order.

(3) An attachment of earnings order shall cease to have effect—

(a) upon the issue of a warrant directing that the amount due under the related
maintenance order shall be levied in the manner provided by law for levying fines;

(b) upon the making of an order sentencing the defendant to imprisonment for
failure to comply with the related maintenance order; and

(c) upon the rescission of the related maintenance order, and where an
attachment of earnings order ceases to have effect as aforesaid the court making
such order shall give notice of the cessation to the person to whom the order was
directed.

7. (1) A person to whom an attachment of earnings order is directed shall,

notwithstanding anything in any other written law but subject to this Act, comply with the
order or, if the order is subsequently varied under section 6, with the order as so varied.

LRA

Maintenance of the spouses

79. (1) The court may order a man to pay maintenance to his wife or former wife—

(e) during the course of any matrimonial proceedings;

(f) when granting or subsequent to the grant of a decree of divorce or judicial
separation;

(2) 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

In the case of Yay v Who & Anor, the court stated that there is no hard and fast rule
that a man must maintain his wife or former wife. Provisions of the Law Reform
(Marriage & Divorce) was determined during a time when the demarcation of the rules
of husband and wife were clear, where most woman were stay-home mothers and were
financially dependent on their husbands who were the breadwinners for the family.
However, a whole generation has transitioned since the Law Reform (Marriage &
Divorce) Act was enacted and along with it, the traditional roles of husband and wife
have evolved. Women are no longer relegated to merely handling household-matters.
Gone are the days where a woman’s only place was in the kitchen. As such there is no
automatic right for a woman to claim maintenance from her husband. All factors must be
considered for this court to determine if maintenance from the respondent is justified.

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.

in the case of Lee Yu Lan v Lim Thian Chye, the court took into account the
responsibility on the part of the husband for the breakdown of the marriage, in
connection of the co respondent, among other factors before arriving at an appropriate
sum of maintenance.

In the subsequent case of Goh Kim Hwa v Khoo Swee Huah, the court had rejected
the husband's allegations that the wife was to be blamed for the breakdown of their
marriage.

85. The court may in its discretion when awarding maintenance order the person liable
to pay such maintenance to secure the whole or any part of it by vesting any property in
trustees upon trust to pay such maintenance or part thereof out of the income from such
property and, subject thereto, in trust for the settlor.

86. An agreement for the payment, in money or other property, of a capital sum in
settlement of all future claims to maintenance, shall not be effective until it has been
approved, or approved subject to conditions, by the court, but when so approved shall
be a good defence to any claim for maintenance.

92. Subject to section 80, the court may at any time and from time to time vary the
terms of any agreement as to maintenance made between husband and wife, whether
made before or after the appointed date, where it is satisfied that there has been any
material change in the circumstances and notwithstanding any provision to the contrary
in any such agreement.

In the case of Lim Thian Kiat v Teresa Haesook Lim & Anor, the HC held that the
separation deed between the parties in that case concerning maintenance of the
respondent and the children were subject to variation by the court as provided for under
section 80, 84 (wife), and 97(children) of the LRA.

87. Except where an order for maintenance is expressed to be for any shorter period or
where any such order has been rescinded, and subject to section 82, an order for
maintenance shall expire—
 (b) if the maintenance was unsecured, on the death of the husband or of the
wife, whichever is the earlier;

(b) if the maintenance was secured, on the death of the spouse in whose favour
it was made.

82.(1) The right of any divorced person to receive maintenance from his or her former
spouse under any order of court shall cease on his or her marriage to or living in
adultery with any other person.

(2) The right of any divorced person to receive maintenance from his or her former
spouse under an agreement shall cease on his or her marriage to or living in adultery
with any other person unless the agreement otherwise provides.

83. The court may at any time and from time to time vary, or rescind, any subsisting
order for maintenance, whether secured or unsecured, on the application of the person
in whose favour or of the person against whom the order was made, or, in respect of
secured maintenance, of the legal personal representatives of the latter, where it is
satisfied that the order was based on any misrepresentation or mistake of fact or where
there has been any material change in the circumstances.

In the case of Gisela Gertrud Abe v Tan Wee Kiat, the HC rescinded the maintenance
order for a limited period, which coincided with the period the respondent husband was
without employment. The judge was of the opinion that the word ‘vary’ should be given
a wide meaning and should not be confined only to increase or reduce the amount of
the periodical payments of maintenance for the wife or the children of the marriage but
also to include power to suspend the maintenance order or any provisions therein
temporarily and to revive the operation of the maintenance order or any provisions so
suspended.

In Anna Tay Siew Hong v Joseph Ng Tiong Yong, a maintenance order was made
upon the divorce of the petitioner and the respondent. The respondent had been paying
RM500 per month for many years but defaulted in his payments, as a result of which the
petitioner obtained leave to issue a judgment summons against the respondent. The
respondent filed an application for a rescission of the said maintenance order citing
material changes in circumstances since the order was issued. He was 60 years old,
suffering from several ailments had no permanent work nor property and was
dependent on his second wife for financial report. The court allowed the application for
rescission of the maintenance order since there had indeed been material changes in
the circumstances both of the respondent and the petitioner.

In Lim Bee Kee v Leong Ah Chuan, the respondent had been paying RM600
maintenance for the petitioner and the three children of the marriage and applied to the
HC to have the amount reduced to RM300 a month. The court dismissed the application
as the respondent failed to to prove on the balance of probabilities that there had been
material change in the circumstances since the making of the order for maintenance.
93. Maintenance payable to any person under any order of court shall not be assignable
or transferable or liable to be attached, sequestered or levied upon for, or in respect of,
any debt or claim whatsoever.

94. (3) No amount owing as maintenance shall be recoverable in any suit if it accrued
due more than three years before the institution of the suit.