The Respondent must demonstrate a material change in circumstances to vary or rescind a maintenance order, failing which the application will be dismissed.

Introduction

[1] This is an application by the Respondent Husband ("RH") via Enclosure 162 dated 24 February 2023 ("Enclosure 162") to rescind para 1 of the Decree Nisi dated 21 November 2016 ("the Decree Nisi").

[2] Paragraph 1 of the Decree Nisi read as follows:

"1. Responden membayar nafkah kepada Pempetisyen sebanyak RM5,000.00 sebulan sehingga Pempetisyen berkahwin semula atau Responden tidak peroleh pendapatan lagi."

[3] RH claimed that several material changes of circumstances rendered the need to rescind para 1 of the Decree Nisi on the following grounds:

(i) That the RH is an elderly 68 years of age, with old age sickness and cardiovascular disease and had suffered 2 heart attack; and

(ii) That the RH no longer has a fixed income and has sold the Poliklinik Kanna which was the RH's sole income.

Background Facts

[4] The RH was self-employed as a doctor at Poliklinik Kanna ("the Clinic"). The RH had pursuant to the Decree Nisi paid the monthly maintenance to the PW since 2016 until March 2022.

[5] The RH had however ceased payment of the PW's monthly maintenance when the RH allegedly sold the Clinic to Care Clinic Groups effective from 1 May 2022.

[6] The Clinic has now been renamed as Care Clinics Poliklinik Kanna ("Care Clinic").

The Law

[7] It is well established that s 83 of the Law Reform (Marriage and Divorce) Act 1976 ("LRA") confers court the power to vary orders for maintenance on the grounds of misrepresentation, mistake of fact or where there has been material change in circumstances. Section 96 and 97 of the LRA read as follows:

"83. Power for court to vary orders for maintenance

The court may at any time and from time to time vary, or rescind, any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or of the person against whom the order was made, or, in respect of secured maintenance, of the legal personal representatives of the latter, 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."

[8] The "change in circumstances" requires there to be a material change in an essential part and not just mere assumptions, inferences, or conjectures. In Sivajothi K Suppiah v. Kunathasan Chelliah ; ; Azahar Mohamed JC (as he then was) had held as follows:

"The section says any "material change" and not simply "change". There is no ambiguity whatsoever. It means a change in an essential part. In considering whether there has been any "material change" within the meaning of this section regard must be had to all the relevant circumstances. including, in the context of the present case, the judgment of Faiza Tamby Chik J. On a proper construction, the requirement in this section does impose a legal obligation on the defendant to prove on the balance of probability that there had been a material change in the circumstances as at 24 August 2001. There is no requirement at ail for the plaintiff to disprove anything."

[Emphasis Added]

[9] In Jane Dripin v. Charan Jit Singh Santokh Singh , it was held:

"[19] Material Change in Circumstances:

(a) The legal definition of material change in circumstances is not cast in stone. It is ultimately dependent upon the facts and circumstances of each case. No one case is similar to the other. Generally material change in circumstances is something that alters the conditions of the child's life significantly enough that it may change the court's decision as to what is in the child's best interests. Black's Law Dictionary 10th Edition, Thomson Reuters, 2014 definition of:

Change in Circumstances:

A modification of the physical, e