MKBA V SFMS [2023] 2 ShLR 1

 

MKBA V SFMS [2023] 2 ShLR 1

Syariah High Court of Selangor

Application to strike out maintenance order.  

Facts of the case

1.    Mustaffa Kamal bin Basir Ahmad, the Applicant, and Shasha Farina bt Mohd Shapie, the Respondent, were formerly married on 18 August 2007. They subsequently divorced outside the Court on 11 June 2013, with the divorce being officially recognised by the Syariah Subordinate Court of Northeast, Penang, on 27 June 2013.  From their marriage, the parties were blessed with two children.

2.    On January 22, 2018, the Syariah High Court (Appeal) in Shah Alam, through Appeal No. 10500-024-0052-2017, issued an order/judgment as follows:

(a)    The Court accepted the Appellant’s appeal;

(b)    The Court revised the judgment in the case of Judge Tuan Shaharudin Bin Selamat, as per Suit No.: 10002-024-0866-2014.

(c)     The Court had ordered the Respondent to pay monthly maintenance of Six Thousand Malaysian Ringgit (RM6,000) for two (2) children named SZMK (Mykid No.: xxxxx) and AZMK (Mykid No.: xxxxx) (hereinafter referred to as ‘the said Children’);

(d)    The monthly maintenance for the aforementioned Children was to be paid by the Respondent by depositing it into the Appellant’s account every second day of the month starting from February 2017 and onwards;

(e)     The Court had ordered the Respondent to cover the Annual Maintenance costs for the Children’s early school preparation, totalling Seven Thousand Malaysian Ringgit (RM7,000) per year, two (2) weeks before the start of the school session; and

(f)      The Court had ordered the Respondent to cover the annual maintenance for the Children’s Eid preparation costs, totalling Three Thousand Malaysian Ringgit (RM3,000) per year.

3.          The Respondent submitted the petition to modify the Child maintenance order on 20 April 2021 under Suit No. 10019-022-0063-2021 (henceforth referred to as “the Modification Case of the Respondent”).  The initial objection raised by the Applicant, who was represented by their Syarie Lawyer, against the Respondent’s modification case was accepted by the Court. The Respondent, dissatisfied with the Court’s ruling, filed an appeal in the Syariah High Court challenging the Modification Case of the Respondent.  However, the appeal was later withdrawn.

4.         Concurrently, the Respondent initiated legal proceeding for Child Maintenance Arrears under Suit No. 10021-023-0445 Year 2021 (referred to as ‘the Arrears Maintenance Case’) as a result of the Applicant’s failure to fulfil his obligation to pay Child maintenance. The case is currently in the trial phase for the Plaintiff (Respondent).

Issue 1.    Whether the Children would be prejudiced if maintenance order was struck out?

2.    Whether legal costs should be fully borne by the other party?

Ratios 1.    Whether the Children would be prejudiced if maintenance order was struck out?

(a) According to Section 76 of the Islamic Family Law (State of Selangor) Enactment 2003 (Enactment No.2 of 2003)-

“76. Power of Court to vary order for custody or maintenance of a child.

 The Court may, on the application of any interested person, at any time and from time to time vary, or at any time rescind, any order for the custody or maintenance of a child, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.”

(b) From the technical point of view, the Court believed it was unreasonable to allow the Applicant’s request, and the appeal order for maintenance should have been revoked.  If the maintenance appeal order had been annulled, the Court believed the right to maintenance for the Children would have been automatically void, and the Children would have suffered harm.

(c)  If the Applicant would want to argue about the high amount of maintenance for the Children and the Applicant’s ability to pay that amount, the Applicant could have done so during the trial for the modification of the maintenance order.  As a matter of fact, It was an agreed-upon fact that the first child, named SZMK (MyKid No.: xxxxx), who was then 13 years old, and the second child, named AZMK (MyKid No.: xxxxx), who was then 10 years old, were growing children, receiving education, at an age requiring financial support, and not yet able to sustain themselves.  Therefore, the Applicant’s request to cancel the child maintenance order was not deemed reasonable for approval by the Court.

2.    Whether legal cost should be fully borne by other party?

(d)   Both parties argued that the other party should have fully born legal costs. The rationale was that the requests made by both the Applicant and Respondent in this action were highly irrelevant and burdensome, causing inconvenience and wasting of time.

(e)   In the Court’s evaluation, neither party fully argued in favor of the awarding of costs to them.  However, in the interest of justice for both the Applicant and Respondent, costs were to be borne by each party.

Decision

1.    The Court dismissed the application following Section 76 of the Selangor Islamic Family Law Enactment 2003.

2.    The Court ordered that each party bear costs.

 

Key Take Away

1.    Upon the request of any interested party, the Court has the authority to amend, at any given time and periodically, or revoke an order related to the custody or maintenance of a child. This is permissible if the Court is convinced that the original order was founded on a misrepresentation or factual error or if there has been any change in circumstances.

 

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