THE OFFICIAL REPOSITORY OF
MALAYSIAN JUDGMENTS & RULINGS

[2018] MYCA 107 ENGLISH

Gurbachan Singh A/L Wazir Singh v Amarjit Kaur A/P Atma Singh and Another Appeal
Suit Number: Civil Appeal Nos. A-02(A)-99-01/2017 & A-02(A)-157-01/2017 

Family law – Divorce – Maintenance – Distribution of assets

JUDGMENT

[1] There were two appeals fixed before us in relation to the petition for divorce filed by the wife. Appeal No. A-02(A)-157-01/2017 is the wife’s appeal and appeal No. A-02(A)-99-01/2017 is the husband’s appeal.

[2] The trial before the High Court involved a Syariah point on the grounds that the husband has converted to Islam (which was a hotly contested issue). However, on the date of hearing of these appeals, the learned counsel for the husband informed us that he has instruction to abandon the Syariah issue. Both the counsel then agreed that the only issue involved is in relation to the distribution of assets and maintenance order in favour of the wife in this marriage where there are no children from the wedlock.

[3] In consequence, some of the issues related to the Memorandum of Appeal of the respective parties will have no relevance.

Brief Facts

[4] Both the petitioner/ wife and respondent/ husband were medical practitioners and their marriage was registered under the Law Reform (Marriage and Divorce) Act 1976 (LRMD 1976). Before the order for divorce was granted, the petitioner had secured an interim maintenance order of RM5,000.00 per month from the High Court and on appeal by the respondent, the Court of Appeal had affirmed the decision.

[5] The High Court, after having granted the divorce, sustained the maintenance amount of RM5,000.00 per month. The petitioner in this appeal says the maintenance sum must be increased. In addition, there were also assets which the respondent had disposed of during the period of marriage which the petitioner says that the learned trial judge did not consider for the distribution of assets as well as maintenance.

[6] The learned trial judge says that there were only five properties which had to be dealt for distribution. The final order related to distribution was only one property belonging to both the parties here. The respondent was asked to transfer his half share to the petitioner.

[7] In essence, this case involves maintenance, division of landed properties as well as business of medical practice. The property that existed at the time of divorce as summarised by the learned counsel for the wife/ petitioner are as follows:

“a. No. 1 Lintasan Idris Dua, Taman Idris, 30100 Ipoh (the matrimonial home) in joint names;

b. Property at 10L, Jalan Tun Abdul Razak, Ipoh (the Clinic) registered in the name of the Respondent;

c. No. 5 Persiaran Asrama, Taman Canning, 34100 Ipoh Perak registered in the name of the Petitioner;

d. PN 161211, Lot. 321738, Mukim Hulu Kinta, Daerah Kinta registered in the name of the Respondent.”

[8] The learned counsel also says that the property (c) above was acquired and brought through the sole effort of the petitioner. For properties (a), (b) and (d) the learned counsel says that they were acquired by joint efforts of the petitioner and respondent during the marriage. And sets outs the reasons as follows:

“(a) All properties were acquired after the marriage;

(b) The Respondent then opened a branch of his clinic known as Klinik Tasek Indera;

(c) The Petitioner was paid to run the said Klinik Tasek Indera;

(d) The Petitioner worked in the said Tasek Indera Klinik from 1995 to 2010 (15 years);

(e) All proceeds from Tasek Indera were given to the Petitioner;

(f) The Respondent admitted during trial that Tasek Indera was formed to generate income as a team;

(g) It is impossible for the Respondent to acquire all the eleven (11) properties using his sole income from Klinik Kana.”

[9] The learned trial judge, in our view, prudently on the facts of the case took into consideration that there are no children of marriage as well as the properties (except the matrimonial home) had already been vested in either the name of the petitioner or the respondent and had ordered only the matrimonial home where the respondent had ½ share be transferred to the petitioner. His Lordship also ordered maintenance of RM5,000.00 to be sustained on terms. The said judgment of the learned trial judge reads as follow:

“[45] Berdasarkan kepada alasan-alasan tersebut mahkamah telah memutuskan untuk membuat perintah seperti mana berikut:

i. Perkahwinan di antara RS dengan PI dibatalkan dengan dekri nisi menjadi mutlak serta merta.

ii. PI berhak kepada perintah-perintah sampingan seperti mana berikut:

a. Nafkah - RS diperintahkan membayar PI sebanyak RM5,000.00 sebulan sehinggalah PI berkahwin semula atau RS tidak lagi memperoleh pendapatan.

b. Harta sepencarian - RS memindah milik ½ bahagian Rumah Perkahwinan ke atas nama PI.

iii. Tidak ada perintah dibuat ke atas kos.”

[10] The approach the learned judge had taken in respect of the landed properties in our view squarely falls within the discretionary power as envisaged in section 76(1) as well as section 76(3) of LRA 1976 in respect of matrimonial home as well as matrimonial assets. [See Yap Yen Piow v Hee Wee Eng [2017] 1 MLJ 17; [2017] 1 MLRA 389]. The facts of the case also does not warrant any consideration under section 76(5) of LRA 1976. [See Oh Leong Thye v Wong Yoke Kuen & Anor [2017] ILNS 526; Sarguna Gurusamy v Jivaranee Nagarathanam [2016] ILNS 1487].

[11] As the courts’ power has been rightly exercised, the appellate court as a matter of law and prudence will be slow to intervene in the discretionary exercise of the trial court related to quantum i.e. in relation to division of assets. [see Kyros International Sdn. Bhd v Ketua Pengarah Hasil Dalam Negeri [2013] 1 MLJU 5; [2013] 2 MLJ 650; ECM Libra Investment Bank Bhd v Foo Ai Meng & Ors [2013] 3 MLJ 35].

[12] In the instant case, taking a holistic view of the facts and contribution of parties as well as their status in life and the evidence that most of the properties under dispute were purchased in their individual name; we do not think it is a fit and proper case to intervene save to say that any reasonable tribunal appraised with the facts will say the division of the assets synchronises with the spirit and intent of section 76(2) in relation to matrimonial home and section 76(4) in relation to matrimonial assets.

[13] On the issue of maintenance order, there is no statutory obligation for the husband to be ordered to pay maintenance in cases where for instance when the wife is employed or has reasonable income or has sufficient assets to sustain livelihood. Section 77 only gives a discretionary power to the court to order maintenance. As a general rule, discretionary powers cannot be exercised arbitrarily. Section 77 read with section 78 do not support unjust enrichment in the wife’s favour but requires the court to determine a fair sum if needed by taking into consideration the affordability of the husband as well as the quality of life the wife was exposed to during the period of marriage, etc. [See Kong Cheng Eng v Linda [2004] 6 MLJ 395]. The said sections 77 and 78 read as follows:

“Power for court to order maintenance of spouse.

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.”

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.

[14] On the facts of the case, a sum of RM5,000.00 for maintenance in our view is fair and reasonable, taking into consideration that the matrimonial home goes to the petitioner and the petitioner also has immovable properties and still earning and/or has earning capacity.

[15] For the reasons stated above, we take the view that both the appeals have no merit. Both the appeals are dismissed with no order as to costs. Deposit is to be refunded.

We hereby order so.

Dated: 02 April 2018

sgd

DATUK DR. HAJI HAMID SULTAN BIN ABU BACKER
Judge
Court of Appeal
Malaysia.

Note: Grounds of judgment subject to correction of error and editorial adjustment etc.

COUNSEL

For the Appellant: Mr. Selva Balan [with Ms. Susan Joseph], Messrs. Azman Joseph & Associates, Advocates & Solicitors, Level 9-11, Menara Sentral vista, 150 Jalan Sultan Abdul Samad, 50470 Kuala Lumpur [Ref: AJA/FLY/1659/SB/12]

For the Respondent: Mr. Mathews Jude [with Mr. Naran Singh], Messrs Naran Singh & Co, Advocates & Solicitors, No. 39 Market Street, 30000 Ipoh Perak [Ref: NS/MT/5288/16B]

Legislation referred to:

Law Reform (Marriage and Divorce) Act 1976, Sections 76(1), 76(2), 76(3), 76(4), 76(5), 77, 78

Judgments referred to:

ECM Libra Investment Bank Bhd v Foo Ai Meng & Ors [2013] 3 MLJ 35

Kong Cheng Eng v Linda [2004] 6 MLJ 395

Kyros International Sdn. Bhd v Ketua Pengarah Hasil Dalam Negeri [2013] 1 MLJU 5; [2013] 2 MLJ 650

Oh Leong Thye v Wong Yoke Kuen & Anor [2017] ILNS 526

Sarguna Gurusamy v Jivaranee Nagarathanam [2016] ILNS 1487

Yap Yen Piow v Hee Wee Eng [2017] 1 MLJ 17; [2017] 1 MLRA 389

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