MAINTENANCE

A. MARRIED WOMEN & CHILDREN (MAINTENANCE)

ACT 1950
Application of this Act
Only applies to Peninsular Malaysia and Sarawak
Sec 13 : This Act is not applicable to person and whose wife and
child, legitimate or illegitimate, professes Islam if there is
already law regulating maintenance of such persons in the
State
Section 3 : (1) If any person has neglected or refused to maintain his
wife or legitimate child who is unable to maintain itself,
such persons can apply to the court for maintenance
(2) If any person has neglected or refused to maintain his
illegitimate child who is unable to maintain itself, the court
may order such person to make monthly allowance to the
child
(3) Maintenance under (1) and (2) shall be payable from
the date of neglect or refusal or from a date specified by
the court
Section 5 : A wife shall not entitle to maintenance in 3 situations;
- The husband offers to give her maintenance if she come
back to him, but she refuses to do so without any
reasonable ground
- Living in adultery
- Refuses, without any reasonable ground, to live with
her husband

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Section 6 : If there is a change of circumstances or some other good
cause, application may be made to rescind or vary the
order of maintenance
Issues 1 : Whether the word ‘wife’ includes secondary wife?
Mui Siu Hing v Lee Hong Kee
 Section 37 of the Minor Offences Ordinance of Straits
Settlement which is in pari material with s3 of MWC, must be
deemed to be enacted with special reference to the custom of the
people of SS
 Thus, the legislature has intended maintenance to be granted to
secondary wives as much as to principal wives, provided that
the secondary wives are lawful

Issue 2 : Whether the child needs to be maintained until he is 18

yrs old or until he is economically independent?
Kulasingam v Rasammah
 Since the MWC is silent on to what extend the child need to be
maintained, Age of Majority Act applies i.e. until 18 yrs old
 It was submitted that perhaps the court should look at the phrase
‘unable to maintain itself’ following the word ‘child’ – implies
that as long as the child was unable to maintain itself, his father
is bound to provide for him until the child is released from such
incapacity

Issue 3 : What amounts to ‘neglected or refused to maintain’?

Marimuthu v Thiruchitambalam

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  A wife is entitled to live with certain amount of decency and
dignity i.e. not to be abused in front of other wives – if the
treatment of the husband was such that she was deprived of such
life, the husband conduct amounts to a neglect and refusal to
maintain within the meaning of s3
Issue 4 : How should the court determined the amount of
maintenance to be paid?
Raquiza v Raquiza
 The husband claim that he need not maintain his wife because
she was earning her own income
Held : Even if the wife is earning her income, this does not
exempt the husband from fulfilling his duty to pay
maintenance
Since they do not have children, the amount of
maintenance to be paid by the husband should be 1/3 of
their joint income – however, the court says that regards
still need to be given to the means of the husband – it was
found that the husband still have to maintain his aged
mother and if he were to pay 1/3 of maintenance, he will
be left in total destitute (poorness) – order $30 to be paid
Thevathasen v Thevathasen
 Issue was whether the potential earning capacity of the wife
should be taken into account to determine the amount of
maintenance
 The wife is a teacher who earns $160 before her marriage – so
her potential earning capacity is $160, meaning she is able to
earn up to $160 even if she is divorced
Held : It is in the interest of the wife that she should go out to
work – since she is capable of earning $160 per month, the
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 amount of maintenance to be paid by the husband should
be reduced
Issue 5 : If the husband has not maintained his wife or child for
3 yrs, can the court order him to pay the maintenance
in arrears from the date of neglect or refusal, that is
maintenance of 3 yrs?
Amrick Lall
 Magistrate had ordered the A to pay arrears of maintenance of 4
yrs – A appealed
Held : Although the law provides that the wife can enforced the
whole arrears of maintenance, the practice of the court is
that arrears can only be enforced up to 12 months
Gangagharan v Sathiabhama
 The rationale behind the practice that only arrears of 12 months
can be enforced lies with the fact that the court treats the
payment as a fund for maintenance and not as property
Lee Yu Lan v Lim Thain Chye
 In the absence of express provision allowing such practice, the
court should not be precluded from making order of payment of
maintenance from the date of neglect of refusal

Issue 6 : What amounts to ‘refusal of the wife to live with her

husband’?
Chong Hooi v Tee Ngi
 If the wife has rejected the offer of her husband, the onus lies on
the court to consider any grounds of refusal – if the wife`s
refusal was reasonable, she is entitled to the maintenance
without having to accept the husband`s offer and live with him
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Ranjit Singh v Jaswant Kaur
 The parties had been living separately for 9 yrs – attempts were
made by the wife and her relatives to reconcile but the husband
treat such attempt with indifference – the husband never made
any serious attempt to take her back to live with him either –
found that the husband`s arrangement to leave his wife at her
parents` house was so that he did not have to support her
Held : To determine the reasonableness of the wife`s refusal, the
court also have to take into account the genuinty of the
husband`s offer – whether it is the offer is genuine or not
must look at the fact of the case
The husband only make the offer when the wife initiate the
proceeding for maintenance – the offer was made after 9
yrs of separation – the husband had once requested for a
deed of separation intending it to dissolve their marriage –
the offer was not genuine – thus, the wife`s refusal to live
with her husband was reasonable
See Ng Lean Huat where the court held that the offer was
not genuine for the husband wanted to take advantage of
both worlds – wanted his wife back and at the same time,
wanted to keep his wealthy mistress
Marimuthu v Thiruchitambalam
 The husband brought another woman into the matrimonial home
– starts to ill-treat the wife by scolding and beating her – she left
the house and the husband offer her to come back but she
refused – husband stop the payment of maintenance
Held : A wife is entitled to live with a certain amount of decency
and dignity and if the treatment of the husband towards her

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 does not permit her to lead such life, it is reasonable for
her to refuse living with her husband
Issue 7 : What amounts to ‘living in adultery’?
Rajalachmi v Sinniah
 Standard of proof to prove adultery – beyond reasonable doubt –
a single act of adultery does not amount to ‘living in adultery’ –
it must be a continuous adulterous conduct

Issue 8 : What amounts to ‘change of circumstances’?

Lee Swee Peng v Koon Kum Keng
 The husband was ordered to pay $50 a month as a maintenance
to his child – claim that he was unable to pay $50 a month – the
court found that he has married and has to maintain his aged
mother, his monthly expenditure being $258.20 while his salary
is $262 a month – as a result, he has to exercise strict economy
in his expenditure
Held : There is no evidence of change of circumstances – at the
time the order was made, he was also earning $260 and his
expenditure was almost the same

B. ENFORCEMENT OF THE ORDER OF MAINTENANCE

Married Women & Children (Maintenance) Act

Section 4 : If the husband wilfully neglects to comply with the
maintenance order, the court may direct the amount to be
paid to be levied or may sentence him to imprisonment for
a term up to one month for each month`s maintenance
remaining unpaid

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Yap Ki Swee v Phua Thiam Lai
 Despite the order of maintenance made by court, the husband
defaulted payments for 3 months – the wife apply to the court to
sentence the husband to imprisonment under s4 but the session
court refused to do so and instead give the husband an
opportunity to pay the arrears – the wife appeal
Held : The wife must proved that the husband has wilfully
neglects to comply with the order
Thus, before the court could sentence him to imprisonment
or levied the amount of maintenance to be paid, the
husband must be given a reasonable opportunity to be
heard and explain himself before the court
Since the husband was not present during the trial, the
session court`s refusal was correct

Married Women & Children (Enforcement of Maintenance) Act

Section 4 : If the husband fails to comply with the maintenance order,
application can be made by the receiver of the
maintenance for an order of attachment of earnings i.e. the
employer deducts the maintenance amount from D`s salary
and channel it to the court – can also be made during the
proceeding of maintenance order
Section 6 : Effect of attachment of earnings order – all other existing
proceedings for the enforcement of the maintenance order
shall be suspended
The attachment of earning orders will ceased to have effect
if warrant has been issued to levy the amount due to be
paid, or D has been sentenced to imprisonment, or the
maintenance order has been rescinded
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Sec 12 : Non-compliance with the attachment of earnings order –
imprisonment not exceeding one year or fine not
exceeding RM1,000
Sec 13 : If the D do not have any employer, the court may order the
sum of money payable under the maintenance order to be
paid directly to the court on a fixed day – if the D
defaulted the payment, the court will call upon the D to
show cause why he had failed to comply with such order
If the cause is not sufficient, the court may issue a warrant
to recover the amount or sold the property of the D
If the sum cannot be recovered or there is no property to
be sold, the court can sentence D to imprisonment for a
term not exceeding 1 month for each month of
maintenance remaining unpaid – Although being
imprisoned, the D is still obliged to pay the amount due
Such imprisonment will terminate however if the amount
has been recovered

Maintenance Orders (Facilities For Enforcement) Act

Section 3 : Transmission of maintenance order made in foreign
country to Msia - Where an order of maintenance was
made against any person in reciprocating countries
(foreign) – a certified copy of the order will be send to the
Minister in charge of judiciary in Msia – the Minister will
then send the copy to appropriate local court for
registration
Upon registration, the order shall have effect and can be
enforced in Msia as if it had been obtained in the local
court

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Section 4 : Transmission of maintenance orders made in Msia to
foreign country - If it is proven that the person whom the
order was made against is residing in foreign country, the
court will send a certified copy to the Minister in charge of
foreign affairs – the Minister will then send the copy to the
appropriate authority in that foreign country

C. LAW REFORM ACT

Maintenance of spouse or former spouse

Sec 77 : (1) 3 situations where a husband has to pay maintenance to
his wife/ former wife;
a) During any matrimonial proceedings
b) After the granting of decree of divorce/ judicial
separation
c) After being presumed to be dead, the wife is found to be
alive

(2) Court may order a wife/ ex-wife to pay maintenance to

her husband/ ex-husband if – the husband is incapacitated
from earning a livelihood due to mental/ physical injury or
ill health – will take into account the means of the wife
Sec 78 : Amount of maintenance to be paid is according to;
- The means and needs of the parties
- Degree of responsibility of each party to the breakdown
of marriage
- Regardless of the proportion such maintenance bears to
the income of the parties
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 Leow Kooi Wah v Ng Kok Seng Philip
 The husband – amount of maintenance=1/3 of joint
income if the wife is earning – the wife RM900 and
husband RM1800 – amount of maintenance payable to
the wife is RM900 – that is 100% of her monthly
income – thus she is entitled to no additional allowance
Held : Amount of maintenance is payable regardless
of the proportion of the maintenance bears to
the income of the wife – the rule of 1/3 is
totally misconceived
Sec 79 : Security of maintenance – person liable to pay
maintenance may be required by the court to secure the
maintenance with his property
Sec 80 : Parties may entered into agmt of paying a capital sum of
money in settlement of all future claims of maintenance –
but, it will not be effective until approved by the court
(may with modification to the provisions) – once
approved by the court, the agmt will become a good
defence for future claims of maintenance
Sec 81 : Duration of maintenance;
(a)If maintenance was unsecured, the order will expire on
the death of the husband or the wife, whichever is
earlier
(b) If secured, the order will expire on the death in
whose favour it was made
The order may expire before such death if
- a shorter period was set by court
- rescission of the order by the court

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 - remarriage or living in adultery of the spouse
Sec 82 : The right to receive maintenance under order of court or
agmt (unless provides otherwise) shall cease if the spouse
remarried or living in adultery with other persons
Sec 83 : Order of maintenance can be varied or rescinded if;
- there is misrepresentation or mistake of fact as to the
order
- material changes in the circumstances
Gisela Gertrud Abe v Tan Wee Kiat
 The issue is whether the court can rescind the
maintenance order for a limited period where the
husband is without employment?
Held : If a maintenance order is rescinded, it ceases to
have effect henceforth and cannot later be
revived – thus an order cannot be suspended if
the court wants to rescind it – the only way to
do so is by varying it
The word ‘vary’ should be given a wide
meaning to include the power to suspend and
revive the maintenance order
What amounts to material change of
circumstances? This case seems to suggest that
when the husband or the wife remarries – when
husband remarries, he had to assume new
financial burdens and responsibilities and thus
two households – the wife if remarries will
secure a new legal right to be supported
Anna Tay Siew Hong : The husband is 60 yrs old, ill
health, no work and dependent
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 on his 2nd wife for financial
support
Lim Bee Kee : Standard of proof for change
of circumstances=balance of
probabilities
Sec 84 : Agmt of maintenance can be varied;
- if there is material change in the circumstances
- even though there is provision prohibiting the agmt to
be varied
Sec 86 : Arrears of unsecured maintenance – if accrued due before
the death of the defaulter, it shall be a debt recoverable
from the representatives of such person
Arrears accrued due more than 3 years are not recoverable
– can only be recovered up to 3 years
Maintenance for children
Sec 87 : ‘Child’ in this context refers to;
- child of marriage as defined in s2
- under 18 yrs old
Sec 93 : (1) The court may, at any time, order a man to pay
maintenance to his child if;
a) he has refused/ neglected to provide for the child
b) deserted his wife and the child is in her care
c) during the pendency of matrimonial proceedings
d) when/ subsequent to the making of order placing the
child in the custody of other person

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 See Saraswathy v Palakrishnan where the court held that
order of maintenance for children can be made at any time
without waiting for a divorce petition to be invoked
(2) May order the mother to pay/ contribute maintenance
to her child – having regard to her means
(3) Payment will be directed to person having care and
control of the child
See Wong Kim Foong – court order father to pay RM800
while mother pay RM400 and the payment shall be
directed to the mother as the child was staying with him
Sec 94 : Security of maintenance
Sec 95 : Duration of maintenance – until the child reach 18 yrs old
or in case of the child suffering from disability, until such
disability cease, whichever is the later
However, see Section 96 where the court may vary or
rescind the order before the child is 18 yrs old if there is
misrepresentation/conmistake of fact or material change
See Ching Seng Woah v Lim Shook Lin where the court
held that involuntary financial dependence such as
studying in university is a physical disability under s95 –
order RM500 to be paid as educational expenses until both
of her daughter obtained their first university degree
Sec 99 : Maintenance of a child who is not the child of a man but is
accepted by the man as a member of his family – the court
may, for the welfare of the child, order a man to maintain
such child until he is 18 yrs old.
The duty cease if the child was taken away by his natural
parents – any sums spent by the man maintaining the child
is recoverable as a debt from the parents of the child
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Sec 100 : Advice of person who is trained or experienced in child
welfare may be taken but the court is not bound to follow
Sec 102 : (1) The court may set aside or grant injunction to prevent
the disposition made by spouse or parent, within the
preceding three yrs, with the intention of escaping from
paying maintenance

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