A husband has a common law duty to maintain his wife and children unless some good

reason can be proven to excuse him from the performance of that duty. In In Acworth v
Acworth 1942 a husband was not relieved from the duty by the fact that his wife was
completely maintained in the United States by means of the hospitality of her friends. The
local case of Raquiza v Raquiza [1947] followed.

The term “maintenance” is explained in Acworth v Acworth [1942] where Scott LJ opined
that:

“maintenance” is a very wide word, and, in my view, it should be read as covering

everything that a wife may in reason want to do with the income which she has. It includes
much more than food, lodging, clothes, travelling, and so on. It includes, for instance, charity
and the making of arrangements for the future, incurring various liabilities in her discretion;
and it is wrong to limit it to any particular form of expenditure.

In Re Borthwick (deceased); Borthwick v Beauvais [1949] Harman J wrote that “It does not
mean that you can only give the dependent just enough to put a little jam on his bread and
butter.” The local case of Parkunan A/L Achulingam v Kalairasy A/P Periasamy [2004]
followed where the court opined that the term ‘maintenance’ should be construed widely as it
signified any form of material provision that would enable the wife and children to enjoy the
same standard of living as they did during the existence of the marriage.

The duty to maintain is provided and regulated by a number of Acts, covering a wide range of
subjects starting from duty to child, duty to wife and to enforcement of maintenance order.

The duty of maintenance towards the child is is provided in the Law Reform (Marriage and
Divorce) Act 1976 (LRA). Part VIII of the Act provides for the protection of children. In s 87
it is explained that “child” in this part means “child of the marriage” defined in section 2 who
is under the age of eighteen years. Meanwhile “child of the marriage” is defined in s 2 to
mean a child of both parties to the marriage, including a child of one party, an illegitimate
child or an adopted child accepted as one of the family.

S 92 provides for duty to maintain children. The maintenance can be done either by providing
them with accommodation, clothing, food and education or by paying the cost, having regard
to the parent’s means and station in life. In Shanta Devi v A. Shanmuganathan 1990 it was
held that in granting the original order of maintenance the court must have taken into account
the considerations provided by ss 78 and 92.
S 93 (1) provides that the court has the power to order a man to maintain the children when
(a) he has refused or neglected reasonably to maintain; (b) he has deserted his wife and the
children; (c) during the pendency of matrimonial proceedings; or (d) when the children are
placed in custody of others. Subsection (2) grants the court power to order the same to a
woman. In Rose Kuok Kok Hiong v David Kuok Khoon Hin [1986] a maintenance order was
granted pending suit as a husband was legally bound to maintain his wife and children as long
as the marriage subsisted. In Leow Kooi Wah v Ng Kok Seng Philip [1995] Shankar J ruled
that where both the parents were earning, each of them had a duty to maintain their children
according to their respective means.

The duration of orders for custody and maintenance is provided in s 95 to expire on the
attainment by the child of the age of eighteen years. If the child is under physical or mental
disability, or is pursuing further education or training, then it expires on the ceasing of such
disability, or completion of education or training. The circumstance of further education or
training is inserted through the amendment in 2017.

In s 96 the maintenance order may be varied or rescinded if it is based on misrepresentation

or mistake of fact or if there is material change in the circumstances. In s 97 the terms of
maintenance agreement may be varied if it is reasonable and in the welfare of the child. In
Shanta Devi v A. Shanmuganathan 1990 the interim maintenance for the wife was suspended
and the maintenance order for children was varied following the husband’s dismissal by his
employer. Lim Beng Choon J explained that the proper approach in the application to vary
the order was to start from the original order and see what changes had taken place since that
date, including any changes which the court was required to have regard to under s 78 and
then made adjustments roughly in proportion to the changes.

In Gisella Gertude Abe v Tan Wee Kiat [1986] the Supreme Court affirmed that the court had
the power to suspend a maintenance order for a specified duration as the word "vary" under
ss 83 and 96 should be given a wide meaning to include “suspend”. The material change in
the circumstances included the respondent’s remarriage and the appellant’s operation of her
own business. The case of Soo Lina v Ngu Chu Chiong [1992] followed.

The recovery of arrears of maintenance is provided in s 98. In Shanta Devi v A.

Shanmuganathan 1990 an arrear of 10 months was ordered by the court to be recovered. S 99
stipulates that where a child is accepted as member of family then a man has duty to maintain
the child. Pursuant to s 100 the court while considering custody or maintenance of the child,
has to take the advice of someone but is not bound to follow the advice.

Moving on to duty of maintenance to wife. It is provided in the Married Women and Children
(Maintenance) Act 1950. According to s 13, the Act is not applicable to those professing the
religion of Islam if under the law in force in such State there is provision regulating the same
among Muslims. In Maznah v Abdul Aziz [1971] the Act did not apply to Muslims since the
Selangor State Legislature had enacted relevant Enactment for the Muslims.

S 3(1) allows the court to order a man to maintain his wife or legitimate child if he has
neglected or refused to maintain them. S 3(2) provides the same right to the illegitimate child.
Pursuant to subsection (3) the maintenance is payable from the date of such neglect or refusal
or from a later date the court may specify.

In Raquiza v Raquiza, it was held that as long as the wife was alive and willing to continue to
live with the husband, he must maintain her. In Mui Siu Heng v Lee Hong Kee, the term
‘wife’ was held to include the lawful secondary wife and the court had the power to grant
maintenance to her as much as to principal wife. Meanwhile the definition of “child” was
held in Kulasingam v Rasammah [1981] to be based on the age of majority in the Age of
Majority Act 1971 which was the age of eighteen years. The daughter who was over 20 years
old was not entitled to maintenance. It is submitted that should the case repeat after 2017 the
result will be different as the amendment to s 95 of LRA extends the period of maintenance
to the completion of education of the child. A relevant case under s 3(2) can be seen in Ng
Chian Perng v Ng Ho Peng [1998] where although the mother of the child alleged the child to
be an illegitimate child of the respondent as a result of their intimate relationship, the
respondent was not liable under s 3(2) to maintain the child as it was the legitimate child of
the lawful marriage between the mother with her husband, following the presumption of
legitimacy under s 112 of the Evidence Act 1950.

S 5 (2) envisages that no wife shall be entitled to receive an allowance from her husband if
she is living in adultery, or if she refuses to live with her husband without any sufficient
reason. On the other hand s 5 (1) allows a court to enforce an order of maintenance towards a
man even if the wife refuses to live with him, after considering grounds of refusal of the wife.

In Kulasingam v Rasammah [1981] the cruel act of the husband rendered the wife left the
matrimonial home with sufficient reason and she was therefore entitled to maintenance.
Marimuthu v Thiruchitambalam 1966 followed where the wife had good cause to refuse
living with her husband as she had to endure the humiliating circumstance of living with the
second wife. Other relevant case is Ranjit Singh v Jaswant Kaur [1970].

There is uncertainty with the phrase “living in adultery”. Denning LJ in Price v Price 1951
held that a single incidence of adultery sufficed. However the mainstream law is that in the
local case of Rajalachmi v Sinniah [1973] where Raja Azlan Shah J opined that a singe act of
adultery was insufficient and continuity of the conduct was needed. In the case the wife was
not entitled to maintenance because of her living in adultery but the child’s right of
maintenance was not affected.

S 6 allows for rescission and variation of maintenance order because of a change in the
circumstances or of some other good cause. The applicant’s condition that he "must exercise
strict economy in his expenditure” was not a good cause in Lee Swee Ping v. Koon Kum
Keng [1954].

On the other hand turning to LRA, s 77(1) provides for power of the court to order
maintenance to wife: (a) during the course of matrimonial proceedings; (b) following the
grant of a decree of divorce or judicial separation; and (c) if, after a decree declaring her
presumed to be dead, she is found to be alive. A woman can be ordered under s 77(2) to
maintain the husband where he is incapacitated from earning a livelihood. S 78 provides that
the primary assessment is the means and needs of the parties and the degree of responsibility
each party bears for the breakdown of the marriage. The proportion such maintenance bears
to the income of the parties shall not be taken into account.

S 79 provides for the power for court to order security for maintenance. Pursuant to s 80 an
agreement for the payment of a capital sum in settlement of all future claims to maintenance
can only be effective upon approval by the court. In Leow Kooi Wah v Ng Kok Seng Philip
[1995], in deciding whether the LRA provided for lump sum payment to be ordered by the
court, Shankar J referred to ss 79, 80, 93 and 94 and held that the court could direct that the
capital assets to be used to secure the periodical payments ordered. The desire of the parties
for a clean break was recognised.

According to s 81 an order for maintenance shall expire on the death of the husband or of the
wife if the maintenance was unsecured, or on the death of the spouse in whose favour it was
made if the maintenance was secured. Nonetheless pursuant to s 82 the right to receive
maintenance ceases on remarriage or living in adultery.
Pursuant to s 83 the court may vary or rescind the order of maintenance if it is based on
misrepresentation or mistake of fact or if there has been material change in the circumstances.
Pursuant to s 84 the court may vary the terms of a maintenance agreement if there has been
material change in the circumstances. The cases of Gisella Gertude Abe v Tan Wee Kiat
[1986], Shanta Devi v A. Shanmuganathan 1990 and Soo Lina v Ngu Chu Chiong [1992]
discussed above under ss 96 and 97 are relevant.

A case of maintenance agreement can be seen in Low Ai Bee v Ralph Eu Peng Lee [1974]
where the court showed its reluctance to recognise some isolate incidents to constitute a
breach of the agreement. The validity of the agreement to maintain the former wife and the
child was upheld by the court in the following words:

… having freely agreed to pay maintenance to the wife and the child of the marriage, should
not be allowed to reject the validity of his own agreement. In any event, the defendant cannot
deny that he is under a legal obligation to maintain the child of the marriage.

The recovery of arrears of maintenance is provided in s 86. Subsection (3) envisages that no
maintenance shall be recoverable if it accrued due more than three years. However in Amrick
Lall v Sombaiavati 1973, Ormrod LJ held that a practice had grown up in the Divorce
Division that arrears should not be enforced for a period of more than 12 months. The local
cases of Gangagharan v Sathiabhama [1979] and Kulasingam v Rasammah [1981] followed
where Abdul Razak J opined “the rationale behind this lies in the fact that the court treats the
payment as a fund for maintenance and not as property.” An opposite view was nonetheless
expressed in Lee Yu Lan v Lim Thain Chye [1984] that the court could order for maintenance
from an antecedent date.

Lastly, to guarantee the enforcement of the maintenance order the Married Women and
Children (Enforcement of Maintenance) Act 1968 (Act 356) and the Maintenance Orders
(Facilities for Enforcement) Act 1949 (Act 34) are enacted. Act 356 provides for power of
court to make an attachment of earnings order under s 4. The nature of the order is explained
in s 5 as requiring the employer of the defendant to make payments to the court out of the
earnings of the defendant. Penalties for non-compliance are envisaged in s 12. On the other
hand Act 34 is an Act to facilitate the enforcement in Malaysia of maintenance orders made
in reciprocating countries and vice versa, as explained in its long title. Enforcement in
Malaysia of maintenance orders made in reciprocating countries is provided in s 3 and s 4 is
regarding transmission of maintenance orders made in Malaysia to reciprocating countries.
Extra

Ranjit Singh v Jaswant Kaur [1970] followed where the wife had good grounds for refusing
to live with the husband as he sent the wife and his children to the wife's parents to avoid
supporting them and made no serious attempt to take them back.