dalam mahkamah tinggi malaya di alor setar dalam negeri kedah

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DALAM MAHKAMAH TINGGI MALAYA DI ALOR SETAR
DALAM NEGERI KEDAH DARUL AMAN, MALAYSIA
PETISYEN PERCERAIAN NO: 33-239-2010
Dalam Perkara Mengenai Seksyen 53, 54(1),
(b), 76, 77, 88 Akta Membaharui UndangUndang (Perkahwinan dan Perceraian) 1976
Dan
Dalam Perkara
Mengenai Kaedah-Kaedah
Prosiding Perceraian Dan Hal-Ehwal SuamiIsteri, 1980.
ANTARA
SUNDARAMOORTHY A/L MARIMUTHU
(NO. K/P: 571230-02-5115)
…... PEMPETISYEN
DAN
SILVARANI A/P MUNIANDY
(NO. K/P: 581214-02-6088)
…... RESPONDEN
GROUNDS OF JUDGMENT
1.
Petitioner husband and respondent wife were married according to
traditional Indian custom on 7-9-1978 prior to the coming into force of the
Law Reform (Marriage and Divorce) Act 1976 [Act 164].
1
Section 6
recognizes such marriage and deems it to be registered under Act 164 and
it can only be dissolved under the Act.
Dissolution
2.
From the evidence petitioner and respondent have been living apart
since 1996 when petitioner was transferred to Pengkalan Hulu. Petitioner’s
assertion that respondent left the matrimonial home together with their 4
children in 1990 to her mother’s house in Bedong is not accepted. This is
because from 1989-1996 the family were staying in Bagan Serai and the
children studying there as evident from various certificates showing their
examination results and participation in school activities.
Although
respondent is resisting petitioner’s petition the marriage be dissolved, I find
it just and reasonable to order a dissolution on the ground of the parties
living apart for more than 2 years ever since 1996. I have considered the 4
children of the marriage have attained the age of 18 years and petitioner’s
admission he has been living with another woman since 1992.
3.
Petitioner was responsible for the breakdown of the marriage when
upon his transfer to Pengkalan Hulu in 1996 he did not allow respondent
and children to follow him ostensibly because of children’s education and
he needed time to find a house there and later as transpired this was due
to his relationship with another woman.
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Matrimonial asset
4.
In respondent cross petition she has sought division of matrimonial
assets. The evidence adduced shows there is only 1 property which is a
house in Bandar Puteri Jaya, Sungai Petani (the house). Petitioner said he
bought the house in 2003 with a government loan and he was no longer
living with respondent then.
5.
Section 76 of Act 164 relates to the power of the court to order
division of matrimonial assets acquired during marriage by the joint efforts
of parties. Subsection (2) provides in the exercise of such power the court
shall have regard among others to “the extent of the contribution made by
each party in money, property, or work towards the acquiring of the assets”
and subject to the aforesaid considerations “the court shall incline towards
equality of division”.
In Koay Cheng Eng v Linda Herawati Santoso
[2008] 4 CLJ 105 the Court of Appeal stated at page 122 that“We are in agreement with the learned judge that the respondent wife cannot be
said to have not contributed financially to the said property. The respondent had
used her salaries towards the upkeep of the household as well as buy groceries.
To us, this would be contribution by the respondent and she is entitled for the
share of the property. … In Lee Yu Lan v Lim Thain Chye [1983] 1 LNS 41, the
wife had claimed that she had contributed to the matrimonial home by “caring
and rearing the children at home” . … the house was bought by the husband and
he had sold it. … The court considered the debts the husband had to pay …
and the court’s proposal to make an order for maintenance for the wife. The
court decided she be given RM60,000 which was about 1/3 of the full purchase
price of RM191,000”.
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6.
Although parties were not staying together when petitioner bought the
house, the marriage was still existing. Respondent was harbouring the
hope she and the children could join him and all the while she was
contributing towards the family by taking care of the children and household
expenses. The evidence shows she had been working since 1993 with
petitioner’s permission. Then the petitioner paid for rental and daily
expenses. When the money petitioner gave was insufficient she would use
her own money. Petitioner stopped contributing in 1997 and respondent
used her own income to make ends meet. The fact the children have all
done well with the 1st son being an assistant engineer, 1st daughter a
teacher, 2nd daughter a nurse and 3rd daughter a nursing student is a
reflection of her efforts in bringing up the children singlehandedly.
Respondent has contributed towards the house. I also consider the house
was bought solely by petitioner with a government loan and he had long
been separated from respondent. I would award respondent a 20% share
of the house.
Arrears of maintenance
7.
On the claim for maintenance for herself and the children starting
from 1996, petitioner counsel submitted section 86(3) of Act 164 does not
allow arrears of maintenance more than 3 years. There is basis to that
submission as section 86(3) is very clear that “no amount owing as
maintenance shall be recoverable in any suit if it accrued more than
three years before the institution of the suit”. Here the petition was filed on
28-9-2010 and the cross petition on 9-12-2010. Thus the claim for arrears
4
of maintenance by respondent is limited to 3 years before the cross petition
dated 9-12-2010. The same goes for the children where section 98 in
respect of recovery of arrears of maintenance for children states section 86
applies mutatis mutandis. As all the children had attained the age of 18 as
at 9-12-2007 with the youngest turning 18 on 10-6-2007 they are not
entitled to any arrears of maintenance.
Assessment of maintenance
8.
On the assessment of maintenance to respondent section 78 of Act
164 requires the court to have regard primarily to the means and needs of
the parties and the degree of responsibility which the court apportions to
each party for the breakdown of the marriage.
9.
It is not disputed petitioner is an orang kurang upaya (OKU). He
retired from the police force as a lance corporal on 1-11-2008 due to
injuries sustained in an accident in 2005. As a result of the accident he
incurred substantial medical expenses for example operation on knee and
leg and total knee replacement. His monthly pension is RM1,200.00.
He
listed his monthly expenses in Q&A 4 of his witness statement as
RM381.17 (payment on HSBC loan with the house being charged as
security), RM178.00 (car installment), RM200.00 (purchase of vitamins)
and RM447.00 (installment on personal loan).
After deducting these
expenses he is left with a balance of RM6.17 each month.
He had
received RM294,000.00 as compensation from the insurance for the
accident sustained. From this amount he paid RM76,735.00 to his lawyer
and spent a total of RM59,440.00 on house renovation which were done to
5
accommodate his disabilities, purchase of water filter, installation of
security alarm, contribution to temple and payment of loans. He was left
with RM45,000.00 which was utilized for his and the family’s daily needs
including his medical expenses.
10.
In cross examination he said the HSBC loan was used to pay off
chetty and to buy a kaki palsu. The kaki palsu was bought in 2009. The
car, a Kancil was bought second hand in 2009 to enable him to go to
hospital. The vitamins were for his knee, leg and body. There was no
letter from the doctor and no receipts. The other loan from EON was to
renovate the house and pay off debts. At time of retirement his salary
including allowance was RM1,800.00.
His pension is paid into Bank
Simpanan Nasional and he can produce the bank book. He agreed the
loans were taken after he filed for divorce but disagreed it was to avoid
paying maintenance. He denied receiving RM200,000.00 as gratuity on
retirement and said it was RM70,000.00. He agreed the compensation and
gratuity were spent on a life of luxury for himself and his other family. He
said he is able to walk without a walking stick and disagreed he would be
able to get a part time job.
11.
In re-examination
he
said
the HSBC loan was approved on
21-10-2010 and EON loan on 12-10-2010 and he applied for the loans 1-2
months before the divorce petition. His understanding of a luxurious life
was that the money was spent to renovate the house, pay off his debts and
to buy furniture. He disagreed he could get a part time job as even though
he can walk his walk is “tidak seimbang”.
6
12.
Although he could easily have produced proof of the amount of his
monthly pension he did not do so. He had worked for 28 years and upon
retirement was earning RM1,800.00 including allowances. I take judicial
notice a government employee who has worked for more than 25 years will
be entitled to a pension of half his last drawn salary. On the assumption
his salary prior to retirement was RM1,500,00 excluding allowance his
pension would be only RM750.00. I am therefore prepared to accept his
monthly pension as RM1,200.00 as he should be paid more than
RM750.00. With regard to the HSBC and EON loans although he applied
before the divorce petition it was only applied 1-2 months before such that
it can be reasonably inferred this was done in order to avoid payment of
maintenance. The petition may be filed on 28-9-2010 but the consultation
and instruction to prepare the petition would be earlier. The installment on
Kancil is necessary to help him move about especially to hospital. The
purchase of vitamins is not supported by any doctor and there are no
receipts. Thus the only reasonable monthly expense is the installment on
Kancil of RM178.00. This would leave him with RM1,022.00. However
realistically there are still the HSBC and EON loans which he has to pay of
RM381.17 and RM447.00 totaling RM828,17. From his evidence he relies
on the other woman for financial support.
13.
Respondent is working as an operator with a monthly salary of
RM400.00. She is now 53 and can expect to work till she’s 55. She stays
with her eldest son but takes care of her daily expenses which comes up to
RM280.00 a month. She also contributes towards her youngest daughter’s
education although her eldest son assists as well.
Her eldest son
(Logeswaran, RW2) supported her evidence and denied he was bearing all
7
his mother’s expenses. RW2 earns RM2,800.00 and has a wife and 1 child.
Considering his mother has been taking care of him all this while it can be
reasonably inferred as she now stays with him that he would be
responsible for all her needs and not just lodging and food.
14.
Petitioner referred to Anna Tay Siew Hong v Joseph Ng Tiong
Yong [1995] 3 CLJ 717.
Although the case referred to change of
circumstances warranting the court to rescind a maintenance order it can
apply to a situation of assessing maintenance. The court said at page 719“ … He is now 60 years of age and based upon the evidence, I find that he is in
poor health. The facts reveal that he has no special skill which could at least
assist him in obtaining employment; furthermore his poor eyesight and his age
are surely minus factors if he now seeks employment. He now depends upon his
second wife for financial support …On the other hand the petitioner seems to be
comfortable and well looked after by their married daughter …”.
The court there rescinded the maintenance order which had been made by
consent.
15.
In our case petitioner is an OKU who’s 54 years old. He was a lance
corporal and before that a lorry attendant. Although he can walk unaided
his gait is unsteady and he has slurred speech. It is doubtful at his age and
with his disabilities he will obtain employment.
He will require medical
treatment for his disabilities. He depends on the other woman for financial
support. He is hard pressed to support himself. Respondent now stays
with her eldest son and in all probability her 4 children should be able to
support her if need be.
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16.
Considering the limited means of petitioner and that respondent
seems in a comparatively better position and that petitioner is responsible
for the breakdown in marriage petitioner is to pay respondent a monthly
maintenance of RM150.00.
Conclusion
17.
Petition for dissolution of marriage is allowed. Respondent’s cross
petition in paragraph 22(c) is allowed to the extent of 20% of nett value of
the house and paragraph 22(e) is allowed with a monthly maintenance of
RM150.00 from 9-12-2007.
Paragraphs 22(a), (b), (d) and (f) are
dismissed. Petitioner to bear half of respondent’s costs.
Dated: 19 December 2011
See Mee Chun
Pesuruhjaya Kehakiman
Mahkamah Tinggi Alor Setar
Peguamcara Pempetisyen:
Encik Y.K. Loo
Tetuan Y.K. Loo & Cheng
Peguambela dan Peguamcara
48, Ground Floor
Jalan Tembaga
Seberang Jalan Putra
05150 Alor Setar
Kedah Darul Aman
9
Peguamcara Responden:
Puan Selvi Subramaniam
(Puan Anuradha a/p Narasamuloo bersamanya)
Tetuan Selvi Subra & Associates
Peguambela dan Peguamcara
No. 119, Tingkat 1
Jalan Legenda 4, Legenda Heights
08000 Sungai Petani
Kedah Darul Aman
10
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