IA v JI [2019] 4 SHLR 16

Syariah High Court (Shah Alam)

Outstanding Maintenance Payments to the Wife

1.      The Appellant (‘husband’) appealed against the decision of the Syariah Subordinate Court of Petaling Selangor regarding an order to pay RM115,400.00 in arrears for the maintenance of the former wife and children.  The payment was to be made either in cash or through monthly installments over twelve (12) months into the Respondent’s (‘wife’) bank account.

2.      However, the Appellant argued on the grounds that the trial judge had erred in such decisions as follows:

(a)         disregard of the Appellant’s confession and financial capability;

(b)         the Appellant’s expenses with his second wife and two children were imminent as they were dependant on the Appellant;

(c)         the Appellant’s failure to present companies shares, despite the Appellant’s income being solely attributed to Ismail Adam & Co.  The Respondent did not provide evidence regarding the development of another company owned by the Appellant; and

(d)         the outstanding maintenance payment without fully considering the Appellant’s confession and accordingly decided on a reduced sum of RM69,000.00 instead.

3.    Hence, the primary issue for determination by the Syariah High Court Shah Alam (‘the Court’) is whether there were outstanding maintenance payments owed by the husband to the wife.

(a)      The concept of a wife’s maintenance is highlighted in the Kamus Istilah Fiqh, at page 23, which provides that-

“’Nafkah,’ or its original term ‘infaq,’ is the provision by someone, whether in the form of food, clothing, shelter, or the tranquillity and enjoyment of life (spiritual sustenance), provided to someone due to marriage, family ties, and ownership of dependents, based on capability and suitability. There are five types of maintenance: self-maintenance, parental (father or grandfather) maintenance to offspring (children or grandchildren), offspring maintenance to parents, husband’s maintenance to wife, and other forms of maintenance.”

                                [Emphasis Added]

(b)      Hence, the determination of the wife’s maintenance is based on the husband’s capability as the provider and also depends on the wife’s needs as the recipient of maintenance.  This aligned with the Islamic viewpoint as referenced in the book of Al-Fiqh Al-Manhaji which was translated as Kitab Fikah Mazhab Syafie Vol. 4, at page 941, which states that –

“The maintenance required to be provided to the wife has a specific amount. However, the quantity and type differ based on the husband’s capability.”

 

(c)      It indicates that the evaluation of the requested maintenance amount must be assessed based on the income of the husband as the provider, considering the capability, regardless of the actual requirements of the maintenance of the recipient, as provided in section 62  of the Islamic Family Law (State of Selangor)  (‘Enactment No.2 of 2003) as follows:

“Assessment of maintenance

62. In determining the amount of any maintenance to be paid, the Court shall based its assessment primarily on the means and needs of the parties, regardless of the proportion the maintenance bears to the income of the person against whom the order is made.”

(d)      Therefore, in the present appeal, to evaluate any outstanding obligations concerning the Respondent’s maintenance, the Court must consider two key aspects–

(i)     the nature of the wife’s maintenance needs; and

(ii)    the husband’s capability.

(e)      The order for the outstanding maintenance was issued by the trial judge on 12 August 2016 (‘Perintah Tunggakan Nafkah 2016’), following a joint agreement regarding child and spousal maintenance.  However, the Appellant failed to fulfil the order.

(f)        Nevertheless, the Appellant contended that he had also informed the court that his name has been blacklisted from obtaining any loans from financial institutions in Malaysia due to the records in Central Credit Reference Information System (‘CCRIS’) and the Credit Reporting Agency in Malaysia (‘CTOS’), according to the latest CCRIS & CTOS report dated  25 August 2016.

(g)      The Appellant argued that if he were declared bankrupt due to debts, his companies Ismail Adam & Co, and IAC Tax (‘the companies’) would be closed down, leaving the Appellant without any source of income to support all needs, including the payment of the children’s maintenance.

(h)      This will undoubtedly worsen the situation and  impact on the Appellant’s current wife, children, and employees of Ismail Adam & Co and IAC Tax. The Appellant submitted that he had no choice but to settle their substantial debts with financial institutions to ensure the continuity of the companies that were the sources of the Appellant’s income and sustain operations.

(i)        The Appellant also contended that the trial judge had decided on child maintenance of RM2,000.00 per month, as stated in the Perintah Tunggakan Nafkah 2016 without proper evidence provided by the Respondent.  Therefore, the Appellant claimed that it was an invalid (‘fasidah’) allegation.

(j)        In the current appeal, the Court received evidence highlighting the stable financial status of the Appellants’ companies. The companies have successfully obtained multiple loans from banks, which indicates their solid financial standing. Additionally, it was noted that any records of ‘late payments’ from the past twelve months have been resolved.

(k)       In fact, the Court found that financial institutions have approved new credit applications of the companies, which showed that it was unlikely that the bank would readily approve and allow such loans to be processed if the companies’ positions were unstable.

(l)        Therefore, the Court held that the Respondent’s claim was not a fasidah claim, affirming the trial judge’s decision and confirming the outstanding amount of maintenance of RM 115,400.00.

(m)    The Court was also of the view that the companies registered under the Appellant’s name were sufficient to prove the existence of the companies.  Hence, the Appellant’s denial of the companies’ lack of income was presented later in a subsequent document.  Nevertheless, the Appellant failed to sufficiently prove through documents, transactions, or witness statements that the companies indeed generated no profit, thereby weakening their assertions.

(n)      The Respondent successfully proven that the Appellant’s companies were profitable.  The Respondent strongly rebutted the Appellant’s claim of excessive financial flows.  Moreover, the Appellant’s failure to substantiate being blacklisted was highlighted as the attached report only contained the Appellant’s personal information and credit details from the Bank Negara. Additionally, the Appellant’s consistent monthly payments showed no outstanding arrears.

(o)      The Court found no justifiable reason to reduce the assessed amount, as it had been thoroughly reviewed and determined by the trial judge in a prior hearing on the unpaid arrears.

(p)      The Appellant’s application to pay RM 200.00 monthly was deemed unreasonably low by the Court.  However, in acknowledging the potential hardship of the Appellant and their family, the Court extended the payment period, ensuring the former wife and children’s well-being by securing their financial support.

(a) The Court allowed the Respondent’s claim based on section 70 of Enactment No. 2 of 2003 on the recovery of arrears of maintenance;

(b) The Court ordered the Appellant to pay both outstanding amounts of child and spousal maintenance, totalling RM115,400.00, in monthly instalments of RM2000.00 for a period of fifty-eight (58) months, directly into the Respondent’s RHB bank account, Account Number XXX, until the entire amount is settled; and

(c)  the Court held that the order is effective from the date it is received by the Appellant.

1.    Under the Syariah law, the determination of a wife’s maintenance is grounded in two primary considerations which focus on the husband’s capability as the provider, and the wife’s needs as the recipient of the maintenance.

2.    As such, the Syariah law recognised that the husband’s financial capacity might vary, hence the obligation in providing maintenance to the wife might not always be fixed at a specific amount.  It can be assessed based on the husband’s earnings, assets and overall financial stability so to fulfil the responsibility.