The Court must find a material change in circumstances for modifying a maintenance order under the Law Reform (Marriage and Divorce) Act.

JUDGMENT

There are two applications before me. The first application (Enc. 55) is made pursuant to Section 83 of the Law Reform (Marriage and Divorce) Act 1976 (the Act) by the respondent who seeks to vary, rescind or suspend a Maintenance Order (hereafter the Maintenance Order) made on 11th January 1996 by the Ipoh High Court wherein the respondent was ordered to pay by way of maintenance a sum of RM100.00 per month to Wong Ah Mooi his former wife (hereafter the petitioner) and RM200.00 per month to his daughter Chooi Sum Yee (the daughter) until she reached the age of majority. The respondent was also ordered to pay a further sum of RM150.00 a month towards arrears of instalments which the respondent had not paid for the two years preceeding the order.

The second application (Enc. 57) is made pursuant to Section 102 (1) (c)(i) of the Act by the petitioner, who seeks to set aside a disposition by the respondent of his 1/2 undivided share in two parcels of land. The first is a parcel of land measuring some 3 hectares which is planted up with fruit trees and held under title LM 2207, Lot No. 67936 (hereafter the orchard). The second is a parcel of land on which stands a double storey brick house where the respondent lives which is held under title LM 2069, Lot No. 57200 (hereafter the homestead). The disposition was made in favour of the respondent's three sons; one of these sons is from a previous marriage and two are from the marriage to the petitioner.

The background facts to both applications are common.

In 1981 the petitioner and the respondent separated. There were three children from their union. In 1983 the petitioner applied for custody and maintenance for the three children but failed in her application. That same year, the respondent began cohabiting with a former wife and in 1987 another child was born to the respondent. In 1990 the petitioner commenced divorce proceedings. On 11th January 1996, the Ipoh High Court granted the petitioner her divorce and made the Maintenance Order. By then, only the daughter was still an infant and the petitioner was granted custody of her.

The Maintenance Order was to take effect from 1st February 1996 but the respondent did not comply with its terms. On 24 July 1996 the respondent made one payment of RM3,900.00 but no payments thereafter. When the respondent failed to make any further payments, the petitioner's lawyer wrote to the respondent's solicitors on 30 July 1996 and 14 July 1997 requesting compliance with the maintenance order but the respondent ignored such request.

As a result, the petitioner on 27 April 1998 issued a Judgment Summons against the respondent, after the hearing of which an Order was made on 29 July 1999 granting the respondent time to pay all the sums due under the Maintenance Order then amounting to RM6,600.00 by three equal instalments on 13.10.99, 30.11.99 and 30.12.99.

While the Judgment Summons was being heard, the respondent on 28 June 1999 filed his application to vary, rescind or suspend the Maintenance Order and on 8th July 1999 the petitioner filed her application to set aside the disposition of the aforementioned properties.

The respondent contends that the Maintenance Order should be varied as he has experienced a change of circumstances since the making of the Order in 1996. The respondent was then a vegetable farmer and farmed a piece of land until 17 October 1996 when by an Order of Court he was ordered to deliver possession to the registered owner thereof. The respondent alleges that since then, he has been deprived of a source of income. The respondent also alleges that he can no longer work as a vegetable farmer as he has become allergic to insecticides. With little education and no other skills, the respondent alleges he is not able to seek employment elsewhere. He is now 58 years old, and he needs to be supported by his sons. In view of his changed circumstances, and bearing in mind that he has been separated from the petitioner for so long,