1/18/2021 Case:[1995] 1 LNS 21

[1995] 1 LNS 21

B. RAVANDRAN A/L BALAN v. MALIGA A/P MANI PILLAI

HIGH COURT, JOHOR BAHRU
HAIDAR MOHD NOOR; J
DIVORCE APPLICATION NO. 33-191 OF 1994
18 OCTOBER 1995

FAMILY LAW - Divorce - guardianship and custody of Children, Maintenance and division of Matrimonial
Property - considerations

Counsel:
For the plaintiff - George Mathews; M/s. Gana Muthusamy & Co.
For the defendant - Navamani; M/s. Navamani Arumugam

JUDGMENT:
In this divorce petition, as amended (Encl.34), the petitioner, B.Ravandran a/l Balan prays for:

(a) that the marriage be dissolved;

(b) custody of the children Menaga a/p B. Ravandran, Rajiv a/l B Ravandran, Shanti
a/p B. Ravandran and Logkes a/p B. Ravandran be granted to the petitioner;
(c) the costs of the proceedings be borne and paid by the respondent;
(d) such further or other relief that this honourable Court deems fit and just.

The petitioner and the respondent were lawfully married on 22 February 1984 and their marriage was
registered at the Pejabat Pendaftaran Perkahwinan, Johor Bahru (see Exh.RB1). They had since March 1988
cohabited at No. 0480, Block 8, 04-80, Taman Cempaka, SEDC, Tampoi, Johor ('matrimonial home').
There are four children arising out of the said marriage. They are:

(a) Menaga a/p B. Ravandran (f)

- 9 years 4 months
(b) Rajiv a/l B. Ravandran (m)
- 8 years 5 months
(c) Shanti a/p B. Ravandran (f)
- 1 year 11 months
(d) Logkes a/p B. Ravandran (f)
- 9 months
(See Exh.RB2ad).

They are all presently living with the respondent. Subsequently, the petitioner and the respondent had
matrimonial difficulty and it was referred on 1 November 1993 to the Reconciliatory Tribunal under s.106 of
the Law Reform (Marriage and Divorce) Act, 1976 ('the Act') and a certificate of non-reconciliation of the
marriage was issued (Exh.RB4). The said marriage has broken irretrievably. Hence the present petition.
In the meantime, sometime on 10 March 1994 the respondent filed Saman Pemula No. 24-517 of 1993 for the
custody, guardianship and maintenance of the children etc. The parties, by consent, agreed to the following
orders (Exh.RB3):

(1) The custody of the four children be given to the respondent until they attain the
age of majority.
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(2) The guardianship of the four children remains with the petitioner.
(3) Petitioner is given free access to visit the four children.
(4) Petitioner to pay RM1,000 per month as maintenance to the respondent and the
four children, such payment to be made before the 10th of each month commencing
from the month of March 1994 with liberty to apply and the respondent to keep an
account of the monthly expenses and the petitioner is given the right to check at the
end of each month.
(5) The respondent and the children given the right to stay in the matrimonial home
peacefully without any interference from the petitioner and the respondent is barred
from permitting a third party from staying in the matrimonial home except with the
permission to be obtained from the petitioner first.
(6) The respondent and the petitioner are barred from attacking, harassing,
threatening and insulting each other whatsoever.
(7) The petitioner to pay costs of RM2,000 to the respondent through her solicitors,
M/s. John Ang & Jega.

It appears that the petitioner way back in 1991 contemplated divorce proceedings. However, on the advice of
his solicitors, the petitioner attempted to reconcile for the sake of and in the interests and welfare of the
children. Apparently this failed and the petitioner filed this petition for divorce.
In view of the alleged misconduct of the respondent, the petitioner applied for amendment of the consent
order to have the custody of the four children. As a result, by consent, prayer 12(b) and (c) of the petition was
amended for the custody of the children to be given to the petitioner (see Encl. 34). It was agreed by the
parties that the order of the Court dated 10 March 1994 was an interim order only.
The respondent in her answers to the amended petition denied the allegation of her misconduct by the
petitioner. She counter-alleged the misconduct of the petitioner. She further alleged that though divorce action
was contemplated in 1991 the petitioner did not proceed with divorce proceedings then. They continue to live
together and the respondent claimed that if at all there were matrimonial offences, they had been condoned
by the petitioner. In fact the allegations and counter-allegations remained mere allegations only.
When the petition came for hearing, the parties consented to have their marriage dissolved and I made an
order accordingly. However, the respondent contested the custody issue and also prayed for the petitioner to
pay a monthly sum of RM2,500 as maintenance for herself and her four children until the youngest child
reaches the age of majority and that the matrimonial home be transferred to her as registered proprietor free
of all encumbrances and also the petitioner be condemned in costs (see Encl. 31).
As a result oral evidence was led by both parties in respect of these other issues.
Custody
In respect of custody of a child, the relevant law is s.88(2) of the Act which reads:

88 (2) In deciding in whose custody a child should be placed the paramount

consideration shall be the welfare of the child and subject to this the Court shall have
regard:

(a) to the wishes of the parents of the child; and

(b) to the wishes of the child, where he or she is of an age to express an
independent opinion.

Section 88(2) would be relevant to consider in respect of the first two children, namely, Menaga a/p B.
Ravandran (f), aged 9 years and 4 months and Rajiv a/1 B. Ravandran (m), aged 8 years and 5 months.
However, in respect of the other two children, Shanti a/p B. Ravandran (f), aged 1 year and 11 months and
Logkes a/p B. Ravandran (f), aged 9 months, according to s.88(3) there shall be a rebuttable presumption that
it is good of a child below the age of seven years to be with his or her mother but in deciding whether that
presumption applies to the facts of any particular case, the Court shall have regard to the undesirability of
disturbing the life of a child by changes of custody.
From my observation of the evidence before me it would appear that the petitioner is not pressing for the
custody of the two younger children presumably because of their ages and the fact that they had been staying
with the respondent. In the event I am satisfied that the presumption had not been rebutted and I therefore
order that the respondent be given the custody of the two younger children.

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In respect of the two elder children, the wishes of the parents are clear cut; each wants custody of the
children.
In that event, in considering the issue of custody of the two elder children, it would appear that the paramount
consideration should be the welfare of the children. However, the 'paramount consideration' factor does not
mean that it should be as first on the list of factors to be considered but rather that it must be the overriding
consideration. The mere desire of a parent to have his children must be subordinate to the consideration of
the welfare of the children, and can be effective only if it coincides with their welfare (see Mahabir Prasad v.
Mahabir Prasad [1982] 1 MLJ p. 193).
According to s.88(2) of the Act the Court besides considering the welfare of a child should have regard to the
wishes of the parents and the wishes of the child where he or she is of an age to express an independent
opinion. In considering the wishes of the two elder children, it behoves upon me then to interview each of
them in my chambers in the absence of their parents and Counsels. I then took the action to interview each of
them separately in my chambers with the assistance of my Indian interpreter.
The first child, Menaga d/o B. Ravandran told me in no uncertain terms that she would prefer to stay with her
mother, the respondent. According to her, the petitioner was always working and had no time for her. From my
observation of her I formed the opinion that though she was only about 9 years old, she could express an
independent opinion as to her preference.
On the other hand, the second child, Rajiv s/o B. Ravandran told me that he would prefer to be with the
petitioner. He alleged that his mother, the respondent, did not look after him. According to him, his father told
him that he (the father) would engage somebody to look after him. Rajiv is 8 years old. My own observation of
Rajiv is that he is quite incapable of expressing an independent opinion or to appreciate the consequences of
his opinion. I am of the opinion that he is rather influenced by material gains in expressing his preference to
be with his father, the petitioner. Further, in all probability, he was influenced by the petitioner.
The petitioner contended that if he is given the custody of the children, he would get his mother to look after
them. In addition thereto he would get his niece who is not married to take care of them. The petitioner himself
being a busy businessman, in my view, could not effectively spend much time to look after the children.
Neither could his unmarried niece look after them indefinitely. She would one day get married and has a family
of her own. Because of her age, I doubt whether the petitioner's mother could really take care of the children.
In any event she did not say that she was prepared to take care of them either. On the other hand, the
respondent is not working and could spend more time to look after the needs of the children and to shower
her love and care for them. I do not think the love and care of the unmarried niece or for that matter of the
grandmother would be the same as that of the natural mother! The four children have been living with the
respondent all these years and I do not think it is appropriate that their togetherness should be disturbed
because of the matrimonial problems of their parents. They are still very young. However, I am not suggesting
that the petitioner has no love for his children. He has the financial means to make them happy but that is not
the criteria for my consideration on the custody issue.
In the circumstances I order that the respondent be given custody of all the four children with reasonable
access to the petitioner.
As regards reasonable access, I order that the petitioner be given the liberty to visit the children daily during
daytime and that he is entitled to take the children every Saturday to spend the weekend with him and to
return the children on the following Sunday.
Guardianship
Ordinarily, the father of an infant shall be the guardian of the infant's person and property until the infant has
attained the age of majority (see s.5 of the Guardianship of Infants Act 1961). However, by virtue of s.10 of the
Guardianship of Infants Act 1961, the Court or a Judge may at any time remove from the guardianship of the
father and appoint any person to be guardian in his place.
I see no grounds why the father should not be the guardian of all the infants under s.5 thereof and I therefore
make an order that the petitioner be the guardian of all the four children until they reach the age of majority.
Maintenance for the Respondent and Children
In view of my order in respect of the custody of the children, I would then have to consider what is the
appropriate maintenance to be given to the respondent and her children.
Power of Court to order maintenance of spouse is provided under s.77 and that of a child under s.93 of the
Act.
Assessment of maintenance is provided by s.78 of the Act which reads:

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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 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.

The law is clear that the petitioner has to pay maintenance to the respondent and her children. The question is
how much?
The respondent in her answer to the petition and in her evidence in Court asked for maintenance of RM2,500
per month comprising of:

(i) RM400 per month for the 2 younger children.

(ii) RM500 per month for the other 2 children.
(iii) RM800 per month for household expenses.
(iv) RM100 per month for utilities bills.
(v) RM300 per month for herself.

The sum of RM400 and RM500 per month for the 4 children, in my view, would be slightly on the high side
and further the claim under item (iii) would to a certain extent overlap the claims under items (i) and (ii). I
would therefore propose to consider items (i), (ii) and (iii) together. The claim for item (iv) is quite reasonable
and for item (v) the respondent maintained the same sum in her oral evidence. The petitioner is not seriously
disputing the claims under items (iv) and (v).
In respect of the consent order dated 10 March 1993, it was agreed by the respondent that the monthly
maintenance be at RM1,000 per month. Counsel for the petitioner contended that the respondent did not
complain that the said sum was inadequate. However, the petitioner himself admitted that he would pay for
the school expenses and pocket money for the two elder children and also toys and clothing for the children
and he used to pick up the medical bills also. As these extra expenses were met by the petitioner personally,
there is a possibility therefore that the sum of RM1,000 per month would be adequate then. The petitioner
admitted that his nett income per month is RM5,000 without taking into account RM1,000 he paid to the
respondent as per the consent order. In addition, he is paying the monthly installment of the matrimonial home
which is RM202.52. As a businessman I agree with the petitioner that his monthly income varies. He is not a
salaried man. However, the petitioner was prepared to pay an additional sum of RM350 per month.
Having regard to the means and needs of the parties and the income of the petitioner and I would say that
each party is equally responsible for the breakdown, I order the petitioner to pay maintenance to the
respondent and the 4 children a sum of RM1,500 per month from the date of this order.
Matrimonial Home
Presently the matrimonial home is jointly registered under the name of both the petitioner and the respondent.
Section76(2) of the Act stipulates the considerations for the Court to order division of matrimonial assets.
Section76(2) reads:

2. In exercising the power conferred by sub-section (1) the Court shall have regard to
-
(a) the extent of the contributions made by each party, in money, property or work
towards the acquiring of the assets;
(b) any debts owing by either party which were contracted for their joint benefit;
(c) the needs of the minor children, if any, of the marriage,
and subject to those considerations, the Court shall incline towards equality of
division. (Emphasis is mine).

It is not disputed that the respondent contributed towards the initial payment of the matrimonial home. In fact
according to her she had to take loan from her mother and the petitioner agreed but contended that he had
settled the loan though denied by the respondent. In addition, the respondent during the period she worked,
surrendered her whole pay packet to the petitioner and this evidence was not denied by the petitioner though
he asserted that the money was used towards the household expenses. I cannot accept this aspect of the
petitioner's evidence as household expenses should be his responsibility.

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No doubt the petitioner contributed substantially towards the purchase of the matrimonial home and even now
continuing to pay the monthly installment but taking into consideration of the contribution of the respondent
and the needs of the children, I am inclined to the view that it would not be appropriate to transfer the whole of
the matrimonial home to the respondent as prayed by her. Further, there could be a probability that if it is
registered solely under her name, there would be nothing to stop her from selling it.
In the circumstances the proper order would be to let the status quo remains and in the event the children
attained the age of majority the matrimonial home could be sold and the proceeds be divided equally between
the parties. (See Chamberlain v. Chamberlain [1974] 1 ALL ER 33).
Costs
It is not disputed that the respondent's Counsel was assigned to her by the Bar Council's Legal Aid Bureau
because the respondent had no means to pay. The petitioner is financially strong and the allegations were
unsubstantiated. In the circumstances I am of the view that the costs of the proceedings should be borne by
the petitioner and I do so order.
The parties are at liberty to appeal in the event of change of circumstances.

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