JUDGMENT

Siti Norma Yaakob J:

On March 24, Mohamed Azmi J. as he then was decreed that the marriage between the petitioner and the respondent in these proceedings be dissolved and following this, on May 4, 1979, Anuar J., ordered that with effect from January 1, 1979, the respondent make monthly payments of $1,500 to the petitioner as maintenance for herself and the two children of the marriage, custody of whom was subsequently given to the petitioner.

Subsequent to this maintenance order, when the respondent defaulted in arrears of maintenance, the petitioner (on September 23, 1979), obtained a court order attaching the respondent's earnings due to him from his employers, Conzinc Riotinto Malaysia Sdn. Bhd. This order remained good until May 31, 1983 when he was retrenched by his employers. For six months after that he was unemployed until January 1, 1984 when he secured employment with Malayan United Management Sdn. Bhd. and on April 5, 1984, the petitioner obtained another attachment order attaching the respondent's earnings due to him from his new employers and to date, payment of the maintenance due to the petitioner is affected by this attachment order.

For the period June 6, 1983 until January 6, 1984, when the respondent was not gainfully employed, he was in arrears of seven months' maintenance totalling $10,500 and he now applies

(1) to vacate the maintenance order made against him on May 4, 1979 for the period June 6, 1983 to January 6, 1984, and

(2) to vary the amount of such maintenance order after January 6, 1984.

This application is made under section 83 of the Law Reform (Marriage and Divorce) Act 1976 where jurisdiction is given to the court to vary or rescind any subsisting order for maintenance "where it is satisfied that the order was based on any mispresentation or mistake of fact or where there has been any material change in the circumstances" of the person against whom the order was made. The respondent relies on the second limb of the section that his financial position has materially changed since June, 1983 as to prevent him from meeting his legal obligation under the maintenance order.

It is not disputed that in 1979 he was earning a salary of $5,000 a month and that between June, 1983 to January 1984, he was out of employment and evidence was led to show that during this period of time, he had to shoulder the following liabilities in addition to meeting payment of the maintenance order.

(1) He had to discharge a loan which he obtained from United Asian Bank, the collateral for which was provided by the petitioner in the form of her house known as No. 3 Jalan Tebu, Ukay Heights, Kuala Lumpur. Initially all instalment payments due on the loan were paid for by the petitioner but when she was advised that the respondent was the principal debtor, she stopped payments altogether and the respondent was forced to meet the outstanding balance of the loan plus accrued interest which amounted to well over $124,000. As he was threatened with bankruptcy by the Bank, he borrowed money from his mother to settle this loan and this is evidenced by an I.O.U. chit executed in favour of his mother and his mother's bank statement also showed the amount as having been paid to United Asian Bank.

(2) He also borrowed other sums of money from his mother and sister to meet payments for

(i) taxed costs of his divorce petition amounting to $8,414.62 & cent;

(ii) settlement of a judgment sum due to the petitioner amounting to $2,469.67 & cent;

(iii) legal fees due to Messrs. Sundra & Low amounting to $10,415.27 & cent; and

(iv) the deposit for the seven months arrears of maintenance.

All these payments are either supported by documentary proof or in any event not disputed and I have no reason to doubt that the respondent had made such payments.

His only asset then was the 302/917 undivided share of a farm land in Beranang over which the petitioner had obtained a writ of seizure and sale to ensure payment of the seven months' arrears of mainten