Mohd Ghazali Yusoff JCA:

The appellant filed this petition on 11 March 1999 and prayed for, inter alia, that his marriage with the respondent be dissolved on the ground that the marriage has broken down irretrievably. The marriage was registered on

26 January 1977.

There are four children from the marriage, namely:

(i) Chan Wai Leng (f) (date of birth 3 November 1978);

(ii) Chan Weng Yew (date of birth 10 January 1981)

(iii) Chan Wai Sarn (f) (date of birth 15 December 1982); and

(iv) Chan Wai Yi (f) ((date of birth 7 December 1987).

The appellant also prayed for an order that he be given custody and guardianship of the 3rd and 4th child.

A decree nisi was granted on 18 January 2000 by the learned judge, High Court, Ipoh. It was ordered, by consent, that the parties be granted joint custody of the 3rd and 4th child with the respondent having care and control thereof and the appellant having liberal access thereto. The appellant was also ordered to pay RM200 per month as interim maintenance to the respondent commencing 18 January 2000.

Subsequently, on 28 June 2000 the appellant was ordered by the court to, inter alia, pay to the respondent the following:

(a) 40% of his employment provident fund;

(b) 30% of his gratuity;

(c) a monthly maintenance of RM500.

He was further ordered to transfer 40% interest of the matrimonial home to the respondent. By consent, he was ordered to pay a sum of RM1,500 per month as maintenance for three children of the marriage who were still schooling or pursuing further education at that material time.

The appellant, being dissatisfied with the decision of the learned judge appealed to this court. We dismissed the appeal and ordered that each party was to bear its own costs and that the deposit be refunded to the appellant.

At the outset of the appeal, learned counsel for the appellant informed the court that the appeal was confined to only the following:

(a) the order relating to the monthly maintenance of RM500 to be paid to the respondent commencing 1 July 2000;

(b) the order relating to the division of the matrimonial home.

In his grounds of decision in relation to the monthly maintenance of RM500 to be paid to the respondent, the following was what the learned judge said:

Faktor 'kemampuan dan keperluan' kedua-dua pihak seperti yang dinyatakan dalam s. 78 Law Reform (Marriage and Divorce) Act 1976, adalah menjadi asas bagi Mahkamah ini membenarkan satu amaun yang munasabah sebagai nafkah yang perlu diberikan kepada responden. (Lihat kes Leow Kooi Wah v. Ng Kok Seng ; [1995] 1 MLJ 853). Seksyen 78 disalinkan untuk kesenangan rujukan.

78. Assessment of maintenance

In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.

After taking into account that the appellant was earning an income of RM3,179 per month at the material time, the amount of maintenance for three children of the marriage who were still schooling or pursuing further education, the fact that she has to look after two school-going children who were living with her, the fact that the respondent was not gainfully employed and her claim that she would need RM800 for her monthly expenses and the fact that she used to be an insurance agent and hence was in a position to look for work in that field, the learned judge said:

Dengan mengambilkira segala faktor-faktor yang disebutkan diatas saya memutuskan agar nafkah RM500 sebulan mulai 1.7.2000 dibayar oleh pempetisyen kepada responden, dengan kebebasan untuk memohon kepada kedua-dua pihak. Dalam menetapkan amaun RM500 sebulan ini Mahkamah juga telah mengambilkira bahawa pempetisye