临时赡养费+精神伤害 [2009] MLJU 1243

女方和男方在11-12-2005 结婚。男方之后返回英国工作，女方则留在马来西亚等待她的英国签证被批准。
然而双方之后爆发婚姻纠纷，男方以婚姻无效为由申请撤销婚姻关系。
女方在离婚程序进行当中，提出申请临时赡养费。她要求男方：
- 支付她每月RM3500的赡养费。
- 支付他不少 RM250000的赔偿，以弥补她所遭遇的名誉损失和精神压力。
男方表示双方的婚姻属于无效婚姻(无性生活婚姻)，而且女方的职业是一名专业人士，也出生至来富裕的家庭，因此她无权申请赡养费。
法庭指女方在婚姻生活期间的生活水平，如平时男方提供女方多少的生活费，也会是赡养费的考量之一。赡养费的目的是让对方能借着此费用来恢复正常的生活水平。Loke Wan Tho v. Christina Loke [1961] 27 MLJ 254
法庭表示女方为了去英国和男方一起生活，牺牲了自己的职业生涯；男方现在没有理由拒绝支付赡养费。而且双方已经结婚 4 年，男方也无法提出实际证据证明双方的婚姻是无效的。不过法庭认为RM3500的数额太高，而且女方无法出示证据，如单据来证明她的生活开销…the parties had been married for the past 4 years. From the evidential point of view the Respondent had failed to adduce any evidence in support of his claim that the marriage was not consummated. The Applicant had sacrificed her career by closing her firm in order to join the husband in Essex, United Kingdom. Surely the husband cannot just desert the wife by refusing to pay maintenance to her.
不过在考量了男方的经济能力后，法庭裁定男方需要每个月支付女方RM1,500.00的赡养费。
至于女方另外要求男方支付她名誉损失和精神压力的赔偿，由于女方无法提出实际证据，法庭驳回了她的这项诉求。

*详细的案情和判决，请阅读以下的英文版文章。

INTRODUCTION

This is an application by the Applicant/wife by way of originating summons in enclosure (1) praying for the orders as follows:
That the Respondent pay to the Applicant the sum RM3,500.00 each month for maintenance effective from January 2006 till the right to maintenance ceased under section 86 of the Law Reform (Marriage and Divorce) Act 1976 and that the RM3,500 a month to be credited into the Applicant’s account no. 21434300002045 in RHB, Jalan Tun H.S. Lee Kuala Lumpur branch.
That the Respondent pay the Applicant a sum not less than RM250.000.00 seven (7) days from the order of the court as damages and compensation for lost of reputation and mental distress suffered by the Applicant by crediting the amount in the same account.
That the Respondent pays the cost of this application.
Other reliefs this honourable court deems fit.

FACTS AND BACKGROUND

The Applicant in this case was married to the Respondent on 11 December 2005 at Kuil Lakshmi Narayan, Jalan Kasipillay, Kuala Lumpur.
The Respondent resides in Essex, United Kingdom. Shortly after the wedding, the Respondent returned to Essex, United Kingdom to continue his work. The Applicant stayed on in Malaysia, pending her visa application to the United Kingdom and to settle all other arrangement.
Eruptions of their matrimonial disputes were reflected in the letter dated 28 Jun 2006 issued by the Applicant’s solicitors, seeking maintenance for the Applicant. In reply thereto, the Respondent’s solicitors vide letter dated 12 July 2006 stated that the Respondent refused to give any maintenance to the Applicant.
On 17 July 2007 the Respondent filed an application to annul the marriage on the ground that the marriage was not consummated. On 16 April 2007 this court struck off the said application on the ground that at the time of filling the nullity petition the Respondent was not domiciled in Malaysia.

THE ISSUES

The two main issues for consideration before this court are as follows:

(a) Whether the Applicant is entitled to a claim of RM 3,500.00 per month for maintenance for herself; and

(b) Whether the Applicant is entitled to a claim of RM 250,000.00 for damages for herself.

First Issue: Claim For Maintenance By The Applicant

In prayers (1) of the originating summons, the Applicant seeks a monthly maintenance sum of RM 3,500.00. With regard to the wife’s claim for maintenance, her right to such relief is provided in section of the Law Reform (Marriage and Divorce) Act 1976 (Act 164). Section 77 of the Act states that:

“Section 77 Power For Court To Order Maintenance Of Spouse

(1) The court may order a man to pay maintenance to his wife or former wife;-

(a) the course of any matrimonial proceedings;

(b) when granting or subsequent to the grant of a decree of divorce or judicial separation;

(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.”

This court in assessing whether a wife is entitled to such a payment is guided by the wordings in Section 78 of the Act. The section provides:

“Section 78 Assessment Of Maintenance

In determining the amount of 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 iti 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.”

The Applicant submitted that:

(a) the Respondent is fully capable of paying maintenance as he works in the United Kingdom and draws a salary as shown in his bank account. The Respondent also has funds in Malaysia and is a director of Lexus Consultancy UK Limited.

(b) the Applicant had also closed her firm in view of the joint decision made between the parties that she was to join him in Essex as a married couple after she had obtained her visa to United Kingdom. In this light, the Applicant submitted the case of Parakunan Achulingam v. Kalaiyarasy Periasamay [2004] 7 CLJ 175 where the Respondent Wife gave up her full time employment as a result of a joint decision between the parties.

The Respondent submitted that:

(a) the wife is not entitled to any maintenance because the marriage was not consummated and the Respondent had even filed the nullity petition which was subsequently struck off on technical grounds. In this regard, the respondent submitted the case of V Sandrasagaran Veerapan Raman v. Dettarassar Velentine Souvina Marie [1999] 5 CLJ 474 which states:

“S.77 of the Act might not be strictly applicable in view of the fact that the parties never lived together since the marriage and the marriage was never consummated. It was a policy and trend of the court that on the breakdown of a marriage, if possible, a clean break financially should be achieved. Where there is a short marriage which “lacked any permanence”, the approach of the courts in achieving a “clean break” is by awarding a small lump sum so as to enable the party in a weaker financial situation to adjust herself to her financial situation“.

(b) The Respondent further submitted that the Applicant should firstly be considered “the party in a weaker financial situation”, and as the couples were together only for 17 days the Applicant could not have made such changes in her life within the short span of time. In the case of Khan v Khan [1980] All ER 497 where Ormrod J. said:

“… where a marriage was of short duration and the parties were young a nominal order was the appropriate order unless there were children or the wife was handicapped in some way which prevented her from working. At the time of the hearing before the justices the wife was not working but she was a state enrolled nurse and the justices should have taken into account her potential earning capacity. The wife was now employed full time in a hospital.”

(c) the Applicant is a qualified professional and is gainfully employed thereby capable of earning a good living. She continued to live with her parents in an affluent area in Bangsar which indicates that she comes from a well to do family and as such there is no financial adjustment needed to warrant a payment of any maintenance. To support the submission that no maintenance should be ordered, learned counsel quoted the case of Rose v Rose [1950] 2 All ER 311 and Choong Yee Fong v Ooi Seng Keat [2006] 5 CLJ 144.

Section 78 of the Act provides that the court shall base its assessment of the amount of any maintenance primarily on the means and needs of the parties regardless of the portion such maintenance bears to the income of the husband or wife as the case maybe. This was illustrated in the case of Leow Kooi Wah v Ng Kok Seng Philip & Anor [1995] 1 MLJ 582.
In the case of Loke Wan Tho v. Christina Loke [1961] 27 MLJ 254, Buttrose J held that the issue of a fair and reasonable maintenance must be determined by reference to the standard of living enjoyed by the wife before her husband failed, neglected or refused to provide her with reasonable maintenance ie, an amount which would be sufficient to maintain the wife in the rank and position of life which she has hitherto occupied, in order to supply her with the necessaries, comfort and advantages incidental to her station in life.
In the case of Sivajothi a/p K Suppiah v Kunathasan a/I Chelliah [2006] 6 MLJ 48, the court held as follows:

“Maintenance signify any form of material provision that will enable an adult to live a normal life and a child to be brought up properly. Thus maintenance cannot mean only mere subsistence, i.e the food she puts in her mouth but also means the clothes on her back, the house in which she lives and the money which she has to have in her pocket, all of which vary according to the means of the man who leaves a wife behind. Moreover, it is settled law that it is the duty of the father to maintain the standard of living the children had enjoyed in the past, i.e during the existence of the marriage.”

What is required to be determined now is the sum of maintenance to be awarded to the Applicant. It is an established principle that in deciding what amount of maintenance the husband should pay the wife, the court must take into consideration the means and needs of the parties. With regard to this case, in assessing the means and needs of the parties the court has to consider the parties earning capabilities.
The Applicant had set out her current net salary as in enclosure 27 at paragraph 7.2 amounting to RM 2,882.25 per month. The Applicant further set out her current expenses in the said enclosure at paragraph 7.1 amounting to RM 3,950.00 per month, resulting in a monthly shortfall of RM 1,067.75. T
The Respondent filed his affidavit of means on 9 November 2009. The Respondent stated that his net monthly income is £2,533.01 (£2,533.01 x 5.48231= RM 13,886.74) per month as a lecturer at the Anglia Ruskin University in Essex United Kingdom. The Respondent further set out his current expenses as in the enclosure 31 at paragraph 7 amounting to £2,159.00 per month, leaving a surplus of approximately £374.01 (£374.01 x 5.48231= RM 2,050.00).
What is maintenance is defined in Re Borthwick (Deceased), Borthwick v. Beauvais [1949] Ch 395 where at p. 401, His Lordship Harman J held:

“It is said that maintenance is the only thing that you can look at. What does that mean? It does not mean that you can only give the dependant just enough to put a little jam on his bread and butter. It has been already held that what is reasonable for one may not be reasonable for another. It must depend on the circumstances of the case. It certainly depends to some extent on the circumstances of the widow, but I think it may also depend on the circumstances of the testator, that is to say, whether he dies a rich man or no, because a rich man may supposed to have made better provision for his wife’s maintenance than a poor one. Maintenance does not only mean the food she puts in her mouth, it means the clothes on her back, the house in which she lives, and the money which she has in her pocket, all of which vary according to the means of the man who leaves a wife behind him. I think that must be so. Maintenance cannot mean only a mere subsistence.”

This court of the opinion that the amount of maintenance the Respondent should pay to the wife must depend on the means and needs of the parties, taking into account their standard of living.
This court is in agreement with learned counsel for the Applicant with regard to the issue of maintenance. The Respondent’s contention that no maintenance should be paid is on shaky ground. In our present case, the parties had been married for the past 4 years. From the evidential point of view the Respondent had failed to adduce any evidence in support of his claim that the marriage was not consummated. The Applicant had sacrificed her career by closing her firm in order to join the husband in Essex, United Kingdom. Surely the husband cannot just desert the wife by refusing to pay maintenance to her. This court will not be doing justice if no maintenance is ordered against the husband. However, this does not mean that the Applicant’s demand of RM3.500.00 a month as maintenance should be approved fully.
The Applicant in the application herein contends that she needs RM3, 500.00 per month in maintenance. However, the Applicant has not satisfied or discharged her duty to satisfy this court that she does indeed need this sum of money. Further, the matters detailed in the breakdown (enclosure 27) have not been fully evidenced by any receipts or bills or any form of documentation or other evidence whatsoever. It is therefore this court’s finding that the Applicant has not adequately and/or properly evidenced her needs and that the figure of RM3, 500.00 claimed by the Applicant in the application herein is excessive and unjustified.
In the light of the husband’s net salary of RM13,886.74 which leaves a surplus of approximately RM2,050.00, this court of the view that a monthly maintenance of RM1,500.00 for the wife would be within the means of the husband and would meet with the needs of the Applicant. This court orders the payment of maintenance to take effect from January 2009 (and to be paid by the husband on or before the 15th of each month).

Second Issue: Claim For Damages By The Applicant

This court now deals with the claim for damages in the sum of RM250,000.00 by the Applicant for lost of reputation and mental distress suffered in consequence of the conduct of the respondent.
The Applicant referred to the case of Yeo Bee Lin v. Lee Eng Chee [2004] 1 CLJ 691 and submitted that Section 4A of Married Women Act 1957 (Act 450) provides a statutory remedy to her to sue her husband for personal injury caused by him aside from other remedies set out in the Law Reform (Marriage & Divorce) Act 1976.
This court is of the opinion that from the evidential point of view the Applicant has failed to adduce any evidence in support of her claim for damages and accordingly this court did not make any order for damages in her favour.

CONCLUSION

On the factual background and circumstances of this case, this court allowed prayer 1 for the wife’s maintenance to the amount of RM1,500.00 per month, effective from January 2009, to be paid on or before the 15th of each month. Prayer 2 for damages however is disallowed. Cost will be in the cause.

Source: Sharmini Pillai v Nanthivarman A/L Pichamuthu @ Mokkiah [2009] MLJU 1243. High Court Kuala Lumpur. Suraya Othman J.

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