Mahkamah Tinggi Tan Kok Sung v Yap Sew Moy& ORS

FAMILY LAW: Maintenance – Maintenance of wife – Whether interim maintenance could be ordered where adultery is alleged – Whether interim maintenance for wife should not be allowed until divorce petition fully disposed of – Whether court should apportion degree of responsibility for breakdown of marriage – Whether quantum claimed reasonable – Whether wife ought to be placed in similar standard of living during her married life – Whether husband has duty and obligation to provide for wife – Law Reform (Marriage and Divorce) Act 1976, s. 77

The husband petitioner filed a divorce petition against the wife respondent and three other men as co-respondents that the wife allegedly had adulterous relationships with. The wife in her cross-petition cited two other women as parties whom she alleged the husband has had an adulterous relationship with. This current application in encl. 31 was the wife’s application for interim maintenance pending the disposal of the petition and cross petition. The wife prayed that she be paid RM9,000 per month for her maintenance and that the said sum be banked into her account before the seventh day of each month from the date of the order of the court. She also prayed for arrears of maintenance of RM9,000 per month from 1 December 2014 till the date of this order and that the said arrears of maintenance be similarly banked into her account within seven days from the date of the order of the court. The issues that arose were (i) whether the court should apportion the degree of responsibility of each party for the breakdown of the marriage in an interim application of the wife for maintenance; and (ii) whether the quantum claimed by the wife as interim maintenance was reasonable in the circumstances of the case.

Held (ordering interim maintenance to be paid by husband to wife):
(1) The Law Reform (Marriage and Divorce) Act 1976 (‘LRA’) provides specifically for the court in situation (a) to order maintenance to be paid by the husband to the wife in the course of any matrimonial proceedings. In situation (b) the court may order maintenance during or after the granting of a decree for divorce or judicial separation. In situation (c) the court may grant maintenance to the wife if after declaring that she be presumed dead, she was found to be alive. (para 6)

(2) In an interim application for maintenance supported by affidavits of the wife and invariably opposed by affidavits by the husband, there would be conflict of affidavit evidence on who is to be blamed and to what degree. The court could not resolve the conflict at this stage of the proceedings, bereft of the opportunity of the audio-visual advantage of seeing and hearing how the parties and their witnesses fare under the crucible of cross-examination. Parliament could not have intended then, that merely because there is difficulty in apportioning responsibility for the breakdown of the marriage, there should be no interim maintenance at all for the wife until the divorce petition was fully and finally disposed of. That would be to cause severe hardship to the wife and more so if she had been dependent on her husband for financial support. (paras 10)