Zaleha Zahari J:

The central issue in this application is whether custody, care and control of two children, both girls aged 7 years and 4 years respectively at date of hearing, should be given to the mother ('plaintiff') or the father ('defendant'), and the related issue of whether the defendant should be directed to pay maintenance towards the plaintiff and the children, and if so, in what sum.

In dealing with this application this Court must of necessity keep in the forefront of its mind Part VIII of the Law Reform (Marriage and Divorce) Act 1976 of which ss. 88 , 89 and 92 are especially relevant.

The paramount consideration on the issue of custody is always the welfare of the child and there is the rebuttable presumption that it is for the good of a child below the age of seven years to be with his/her mother.

The case for the plaintiff has been argued on the premise that the former matrimonial house is not a conducive place for the children to be brought up. The plaintiff alleges the defendant guilty of marital misconduct.

According to the plaintiff problems surfaced when the defendant brought another woman into the matrimonial home sometime in 1993.

In a nutshell, she attributed the breakdown of the marriage to the defendant's adulterous relationship with that other woman commencing sometime in 1994 despite her vehement objection; and thereafter, on 4 August 1985, being forcibly and violently chased out of the matrimonial home by the defendant.

She has no personal income of her own and throughout the marriage had been totally dependant on the husband.

Currently she is staying and is being looked after by her parents.

From then onwards the plaintiff contended that she encountered difficulties in gaining access to the children.

She alleged the defendant of being deliberately obstructive.

According to para. 5 of her affidavit affirmed on 16 June 1996 (Encl. 1) her attempt to gain access to the children in November 1995 resulted in her being assaulted by the defendant.

She had to resort to engaging solicitors to take legal action.

It is not in issue that the first application filed by the plaintiff for access i.e. Penang High Court No. 24-154-1996 was struck off by the Court when it was withdrawn pending settlement.

There were some attempts at reconciliation as evidenced by letters exchanged in the months of May, June and July 1996 (Exhs. 'K-10', 'K-8', 'K-9', 'K-11'). Following that however, instead of settling their differences, the plaintiff received a letter dated 15 July 1996 i.e. Exhibit 'K-12' Encl. 6, whereby the plaintiff was informed of the defendant's intention to divorce her and that the issue of custody and maintenance be determined in the divorce proceedings.

The defendant denies these allegations of marital misconduct.

He denies having an adulterous relationship with the woman who was brought into the matrimonial house.

It was the defendant's case that the alleged relationship was but a figment of the plaintiff's imagination.

He contends the woman referred to by the plaintiff was but a helper and a paid servant to assist him in his business.

He also denies the allegation of having forcibly and violently chased the plaintiff out of the matrimonial home but instead alleged that she left the same out of her own free will.

With regard to the plaintiff's allegation of denial of access to the children, the defendant's stand was that after leaving the matrimonial home sometime in August 1995, the plaintiff made no attempt whatsoever to return or to see the children.

By this he would like the Court to conclude that the plaintiff was an uncaring mother and therefore was not fit to have custody of the children.

I would like to deal with this issue of whether the plaintiff did or did not attempt to see the two children since August 1995.

On this issue I hold that there were ample evidence before me of the plaintiff's continuing attempts to see her children.

There is firstly Seberang Jaya Police Report No. 2490/95 on 6 November