JUDGMENTBY: ABDUL KADIR SULAIMAN J

This is an appeal by the applicant against the decision of the learned magistrate dismissing her claim on behalf of the infant daughter for maintenance against the respondent made under s 3(2) of the Married Women and Children (Maintenance) Act 1950 (the 1950 Act). Her claim is contained in her affidavit affirmed on 3 April 1987. Section 3(2) of the Act states:

If any person neglects or refuses to maintain an illegitimate child of

his which is unable to maintain itself, a court, upon due proof

thereof, may order such person to make such monthly allowance as to the

court seems reasonable.

Under the said subsection, the onus is on the appellant to satisfy the court that the respondent is the father of the illegitimate child and not for the respondent to prove that he is not the father. See s 102 of the Evidence Act 1950. According to the affidavit of Wong Nyet Yoon, the mother, as a result of her intimate relationship with the respondent, she conceived a child in May 1985 and on 7 February 1986 she gave birth to the child and the said birth was duly registered with the respondent duly named as the father. The respondent has not maintained the child in any way at all since her birth leaving the sole responsibility to the mother. Hence, the claim for maintenance of RM600 per month from the respondent.

Upon the filing of the said complaint, the magistrate on 9 April 1987 issued a notice to the respondent to appear in person or by advocate and solicitor before the court to show cause why an order pursuant to the said section of the 1950 Act should not be made against him. In response, the respondent filed in all three affidavits opposing the complaint. The respondent denied the allegation of intimacy between him and the appellant and the fact of having any sexual relationship with the appellant. He verily believed that at all material times the appellant was a legally married woman being married sometime in 1975 and is still married to one Phang Mow Yew (the husband) and that there is one child of the family, Phang Chen Yee, born on 20 October 1976. He further deposed that the child born to the appellant on 7 February 1986 (the subject child) is deemed to be the legitimate child of the appellant and the husband and that his name was used as the father of the child in her birth certificate without his consent or knowledge.

After several adjournments, the hearing before the learned magistrate commenced on 22 November 1990. The appellant gave evidence before the learned magistrate. In her evidence, she admitted that she was married to Phang Mow Yew in 1975. As their relationship was not cordial, they lived apart sometime in the middle of 1982. On 24 December 1982, they entered into a separation agreement exhibited as P-3. The agreement, inter alia, provides the custody of child born to them, Phang Chen Yee, shall be with the appellant but the husband shall have access to the child once a month after due prior notice to the appellant. It is also provided that the husband shall pay to the appellant a monthly sum of RM500 on the first day of each month for the education of the child and maintenance effective from December 1982. They also agree to file a joint petition for dissolution of their marriage by mutual consent. There is no evidence before the magistrate that their marriage has been dissolved. But she believed that she had been divorced because on her part she had signed a joint petition for divorce though her lawyer told her that the husband refused to sign the same. She knew that she had not been divorced when she filed this complaint for maintenance on behalf of the subject child, Ng Chian Perng. Therefore, for all intend and purpose they are still husband and wife. After the separation, the appellant went to stay with her parent. In cross examination, the appellant testified that the husband provided her monthly maintenance of RM1,500 to M2,000 until August 19

Click Here to Read the rest of this document