NSE v MSH [2023] SLRHU 3

Syariah High Court (Shah Alam)

Interim Child Maintenance

1. The Applicant was the former wife of the Respondent. They were married on 7 February 2008 but their marriage was dissolved on 3 December 2019 by a single pronouncement of talaq. During the course of their marriage, they were blessed with four children (“the said children”).

2. After that, the Applicant has filed a Child Maintenance Claim at the Syariah Subordinate Court (“SSC”) Shah Alam, under Summons No: 10002-XXX-XXXX-2022.

3. On 5 August 2022, the Applicant also filed an Inter Parte application for Interim Child Maintenance and respectfully submitted the following claims before the Syariah High Court (“SHC”):

(a) The Court ordered the Respondent to pay Interim Child Maintenance in the amount of RM2,000 per month for each child, pursuant to section 202 of the Syariah Court Civil Procedure Enactment (State of Selangor) 2003.

(b) This Order shall remain in effect until varied or discharged by a subsequent order of the Court, or until the final determination of the main case.

4. This application is made by the Applicant on the following grounds:

(a) The Respondent has failed to provide reasonable and consistent maintenance for the said children; and

(b) To ensure that the said children receive regular and appropriate maintenance pending the determination of the final child maintenance amount by the SSC Shah Alam.

Issues

1. Whether the Court has the jurisdiction to hear and determine this matter?

2. Whether the Respondent has the financial means and is in good health to provide maintenance for the welfare and education of the said children?

1. Whether the Court has the jurisdiction to hear and determine this matter?

(a) The Court has the jurisdiction to hear and determine this matter. This is pursuant to sub-paragraph 61(3)(b)(iii) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003, which provides that:

‘61. Jurisdiction of Syariah High Court.

(1)  The Syariah High Court shall—

(b) in its civil jurisdiction, hear and determine all actions and proceedings if all the parties to the actions or proceedings are Muslims and the actions or proceedings relate to—

(iii) the maintenance of dependants, legitimacy, or guardianship or custody (hadhanah) of infants;’

(b) In addition to the general jurisdiction that provides for the Syariah Court’s authority to hear, try, and determine disputes related to Islamic family matters, including child maintenance, there are also specific provisions that outline the obligation to provide for the maintenance of children. This can be seen in the provisions of sections 73 and 74 of the Islamic Family Law Enactment (State of Selangor) 2003.

(c) The section 73 of the Islamic Family Law Enactment (State of Selangor) 2003 provides as follows:

‘73. Duty to maintain children.

(1)  … it shall be the duty of a man to maintain his children, whether they are in his custody or the custody of any other person, either by providing them with such accommodation, clothing, food, medical attention, and education as are reasonable having regard to his means and station in life or by paying the cost thereof.

(2)  … it shall be the duty of a person liable under Hukum Syarak to maintain or contribute to the maintenance of children if their father is dead or his whereabouts are unknown or if and so far as he is unable to maintain them.’

(d) Furthermore, section 74 of the Islamic Family Law Enactment (State of Selangor) 2003 also provides that:

‘74. Power of Court to order maintenance for children.

(2)  The Court shall have the corresponding power to order a person liable under Hukum Syarak, to pay or contribute towards the maintenance of a child where it is satisfied that having regard to his means it is reasonable so to order.’

(e) In this case, the Applicant has applied for an Interim Child Maintenance Order as provided under Section 202 of the Syariah Court Civil Procedure Enactment (State of Selangor) 2003, which stipulates as follows:

‘202. Interim order as to maintenance.

(1)  Subject to the Islamic Family Law (State of Selangor) Enactment 2003, if the Court is satisfied, on the application of any party entitled to maintenance in any cause or matter, that the circumstances require an interim order for maintenance to be made against the person liable under Islamic Law to pay maintenance, the Court may make such an order which shall have immediate effect and shall continue in force until the Court has made a decision on the cause or matter.

(2)  Where the application referred to in subsection (1) is in respect of an interim order for the maintenance of a child, the Court shall not make such an order unless it is satisfied that the father or the person liable under Islamic Law for the maintenance of the child has the capability to pay for the maintenance applied for.’

(f) Therefore, the Court is satisfied that it has the jurisdiction to hear and determine this matter. The Court further finds that the issue of jurisdiction has neither been challenged nor disputed by the Respondent, as the Respondent has failed to file any Statement of Defence in response to the Applicant’s Statement of Claim.

2. Whether the Respondent has the financial means and is in good health to provide maintenance for the welfare and education of the said children?

(a) The Respondent is deemed to have the financial means to provide maintenance for the said children, based on the reference made in Fiqh dan Perundangan Islam, Volume VII, page 1019, which states that:

‘Para fuqaha bersependapat bahawa sesungguhnya nafkah kerabat daripda naka, dan anak kepada cucu ditetapkan dengan kadar yang mencukupi merangkumi roti atau bahan-bahan pelengkap bagi makanan, minuman, pakaian, tempat tinggal dan penyusuan jika ia sedang menyusu, ia adalah mengikut kemampuan pembiaya dan kebiasaan setempat kerana ia diwajibkan dengan sebab keperluan andainya anak yang membiaya nafkah itu kepada khadam (orang gaji) maka ke atas bapa hendaklah menyediakannya kerana ia adalah antara yang mencukupinya dengan sempurna.’

(b) The Applicant reiterates the submissions made in Paragraph 10, asserting that the Respondent is employed as a police officer and is therefore under a legal obligation to provide maintenance for the livelihood and needs of the said children, as clearly stated by the Applicant in her testimony.

(c) At the time this matter was decided, the Respondent was 40 years old, had never been declared bankrupt, was in good health, and was financially capable and able to bear the necessary expenses for the said children.

(d) The standard of proof is essential in determining the extent to which evidence is required for a case to be established. As the Applicant’s case is a civil claim concerning interim child maintenance, it can be submitted that the Applicant is only required to adduce evidence sufficient to meet the threshold of dzan (preponderance of probability).

(e) Moreover, this case involves a claim by the Applicant concerning the basic expenses and necessities of the said children’s livelihood. The Applicant is merely seeking to assert the said children’s rightful entitlements, which are maintenance claims made against their biological father.

1. The Court allows the Applicant’s claim pursuant to Section 202 of the Syariah Court Civil Procedure Enactment (State of Selangor) 2003.

2. The Court orders the Respondent to pay interim monthly maintenance in the amount of RM200 for each child, amounting to a total of RM800 per month for the expenses of the said children.

1. The Syariah High Court has clear jurisdiction over child maintenance matters under sub-paragraph 61(3)(b)(iii) of the Administration of the Religion of Islam (State of Selangor) Enactment 2003, covering “maintenance of dependants, legitimacy, or guardianship or custody (hadhanah) of infants.”

2. Interim child maintenance orders can be sought under Section 202 of the Syariah Court Civil Procedure Enactment (State of Selangor) 2003, providing immediate relief pending final determination of the main case.

3. Courts must be satisfied that the father or liable person has the capability to pay the maintenance applied for before granting interim orders for child maintenance.