RUSLI KAMARUDDIN lwn. SITI MARIYAM SAID [2022] SLRAU 3

RUSLI KAMARUDDIN lwn. SITI MARIYAM SAID [2022] SLRAU 3

SYARIAH COURT OF APPEAL, NEGERI SEMBILAN

Syariah Court Mal Procedure Law – Appeal – Debtor’s claim judgment

Facts

1.      This is an appeal made by the Appellant against the ruling issued by the Syariah High Court in Seremban pertaining to the issue regarding payment of child maintenance.  The Appellant and the Respondent got married in 1994 and had their divorced in 2005.

2.      On 12 March 2009, both parties had agreed for a settlement agreement regarding payment for child maintenance wherein the Appellant was obliged to remit RM150.00 monthly for Azeatul Syarina binti Rusli and RM350.00 monthly for Azeera Sharkila binti Rusli which amounted to RM500.00 per month for both. Such agreement has been recorded as an an order at the respective Court.

3.      However, on 28 March 2018, the Respondent had initiated legal action against the Appellant for non-compliance with the said order, citing an outstanding sum of RM 32,550.00.

4.      During the proceeding at the Syariah High Court, the Appellant contested the amount demanded by the Respondent and asserted to have made the payment.   However, no evidence of payment was provided.  The court decided that there was an admission of failure to fulfill the payment as directed.  Consequently, the judge decreed that the Appellant should promptly settle the debt as requested by the Respondent.

5.      Aggrieved by the decision of the Syariah High Court, the Appellant filed an appeal to the Syariah Court of Appeal.

Issues

1.      Whether the trial judge had erred in law for taking into account the needs and maintenance for one of the child that had already reached the age of 18 years old.

2.      Whether the trial judge was wrong for not taken into consideration the fact that the Appellant did not pay for the maintenance of the child because the said child at that moment had lived with the Appellant and all the expenses of the child were borne by the Appellant.

Ratios

1.    Whether the trial judge had erred in law for including the needs and maintenance for one of the child that had already reached the age of 18 years old.

(a)  The contention of the Appellant regarding this issues is based on  Section 80 of the Islamic Family Law (Negeri Sembilan) Enactment 2003 (“Enactment No. 11 of 2003”) which provides that –

“Section 80. Duration of order for maintenance of a child

Except –

(a)      Where an order for the maintenance of a child is expressed to be for any shorter period;

(b)         Where any such order has been rescinded; or

(c)         Where any such order is made in favour of :

(i)        A daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself; or

(ii)      A son who is, by reason of some mental or physical disability, incapable of maintaining himself

The order for maintenance shall expire on the attainment by the child of the age of eighteen years, but the Court may, on application by the child or any other person, extend the order for maintenance to cover such further period as it thinks reasonable, to enable the child to pursue further or higher education or training.”

(b)  It was a fact agreed upon by the parties that when the order of child maintenance regarding a child named Azeera Syarqila was made, she was already 19 years old.  Therefore, the Appellant argued that no order can be made pertaining to children who is over 18 years old as the claim must be made by the child himself.

(c)  However, the Court held that the said order was made by mutual agreement between the Appellant and the Respondent and the Appellant never voice out his objection towards the agreement. Since no objection was made by the Appellant, the Court’s inference was that the Appellant had agreed and shall obey with the order.

(d)  Furthermore, if the Appellant wanted to raise the issue of the maintenance of child who had exceed 18 years old, the Appellant should have done so during the previous settlement before the order was made.

(e)   The Court referred to Section 94 of the Syariah Court Civil Procedure (Negeri Sembilan) Enactment 2003 (“Enactment No. 14 of 2003”) which provides that –

“Section 94. Settlement of action

Where by agreement of the parties an action has been settled, the Court may at any time, by consent of the parties, record the fact of such settlement with the terms thereof, and the record of the settlement shall afford a defence by way of res judicata to subsequent proceedings from the same, or substantially the same, cause of action.”

(f)     The Court also referred to ‘Arahan Amalan No. 5 Tahun 2006’ which clearly mention about the effect of agreed Sulh agreement as follows :

Kesan perjanjian Sulh yang menepati kehendak Hukum Syarak yang telah direkodkan dan disahkan oleh Mahkamah tidak boleh ditarik balik dan tidak boleh dirayu oleh pihak-pihak yang terlibat dengan perjanjian-perjanjian tersebut.”

 

2.    Whether the trial judge was wrong for not taken into consideration the fact that the Appellant did not pay for the maintenance of the child because the said child at that moment had lived with the Appellant and all the expenses of the child were borne by the Appellant.

(a)  The duty of a man towards the maintenance of his children was clearly provided in Section 73 of the Enactment No. 11 of 2003. This provision stated that –

“Section 73. Duty to maintain children

(1) Except where an agreement or order of Court otherwise provides, 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) Except as aforesaid, 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.”

(b)  The power of Court to order maintenance for children is vested in Section 74 of the Enactment No. 11 of 2003 –

“Section 74. Power of Court to order maintenance for children.

(1) The Court may at any time order a man to pay maintenance for the benefit of any child of his—

(a) if he has refused or neglected to provide reasonably for his child;

(b) if he has deserted his wife and the child is in her charge;

(c) during the pendency of any matrimonial proceedings;

(d) when making or subsequent to the making of an order placing the child in the custody of any other person; or

(e) when permitting him to solemnize another marriage under section 23.

(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 the Court is satisfied that having regard to his means it is reasonable so to order.

(3) An order under subsection (1) or (2) may direct that payment be made to the person having custody or care and control of the child or to the trustee for the child.”

(c)  Based on the provisions above, the Court held that the responsibility of paying child maintenance did not subject to who is the guardian of the children. It is important to note that even if the children were living and taken care by the party who is responsible in paying the maintenance, the maintenance order must be complied as long as there is no any other order that cancels it.

Decision

The Appellant’s appeal dismissed and the decision of the Syariah High Court was upheld.

Key Take Away

1.      This is a judgment debtor summon that had been filed by the Respondent against the Appellant for his failure to comply with the Court’s order in paying for the maintenance of the children. Although the Appellant contended that he had made several payments rather than not making any payment at all, it was wrong for the Appellant to not provide any proof of the said payments.

2.      Furthermore, the act of the Appellant questioning the order that he himself had agreed and had not make any objection throughout the making of the order was improper and not appropriate as the case is regarding the violation of the Court’s order, not to dispute the validity of the existing order.

3.      The appropriate way for the Appellant to argue about his dissatisfaction on the amount of the maintenance if he no longer able to bear such amount is by applying for variation orders for the court to change the amount of maintenance that he has to pay, not merely by refusing to pay maintenance that has been agreed by himself with various excuses.

4.      Even if the children are staying with the Appellant, such fact does not absolve the Appellant from his responsibility to pay maintenance as per Court order because such responsibility is not subject to who is the guardian of the children.

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