(delivering the Judgment of the Court): The appellant/plaintiff sought the custody of her infant son as well as for maintenance from her husband, the respondent. The parties were married on November 30, 1974 at the Registry of Marriages, Kuala Lumpur and later underwent a Hindu marriage ceremony on September 6, 1975. Their only issue, the infant son and the subject matter of this appeal was born on February 6, 1979, which makes him just short of 7 years at the time of the hearing of this appeal. In December 1980 the appellant was forced to take him away from the matrimonial home to her parents' home following matrimonial problems she had with her husband. However in an effort to save her marriage she moved back to her matrimanial home together with the infant in 1981. This effort proved to be of no avail and two years later, in December 1983 the appellant, with the consent of the respondent, moved to her parents' house, taking the infant son with her. Mother and child have been living there ever since.

Appellant makes this application under section 88(3) of the Law Reform (Marriage and Divorce) Act 1976 (hereinafter referred to as the "Act"), seeking to take advantage of the rebuttable presumption under that section that custody of a child below the age of 7 years should go to the mother. The learned trial judge held that there was no pending action for divorce between the parties, and we quote "I do not consider that section 88(3) of the Act can be invoked. This is so as the preamble of the Act in part says that the Act is to amend and consolidate the laws relating to divorce; and to provide for matters incidental thereto."

The learned trial judge went on to say that that subsection can only be invoked if the custody application forms part of the ancillary relief sought by the appellant in a petition for divorce. She added that since the present application is not such an application, appellant cannot resort to the subsection.

The learned trial judge went on to say that since the marriage between the parties was still subsisting, the appellant should have made this application under section 5 of the Guardianship of Infants Act 1961 which, she noted, confers guardianship of the infant to the father with the mother having care and control of the infant. She also remarked that nowhere in the affidavit in support of the application had the appellant averred to any act of the respondent which indicated that the care and control of her son was being threatened. Neither did it allege that the respondent was a father unfit to retain custody of the infant son. Indeed, she noted that on the contrary the affidavit admits that the husband has visited the child from time to time. There was no reference to any adverse effect to the child, or any hint that the respondent had threatened to take the child away from the appellant's care and control. In consequence, the learned judge inferred from the foregoing that the husband had not abandoned custody of the infant altogether.

The judge then remarked that since the prayer for maintenance of the infant was also made under section 93(1) of the Act and for the same reasons already given, she ruled that the appellant cannot resort to this section, but held she should have made the application under section 3 of the Married Women and Children (Maintenance) Act 1950, in which case, she added, the appellant must show that the respondent neglected or refused to maintain the son. However there was no such allegation in her affidavit.

Therefore she added, "both on procedure and on the merits, I had dismissed this Originating Summons".

Mr. Ranjan for the appellant concedes that the only issue in this appeal is whether the Law Reform (Marriage and Divorce) Act 1976, in particular section 88 thereof applies, where the parties to the proceedings have not filed any petition for divorce, but are only separated.

We were referred to Halsbury's Laws of England 4th Edn. Vol. 44 page 491, where u