Moses Susayan J:

GROUNDS OF JUDGMENT

Introduction

[1]This court is called upon to determine the petitioner’s application under Enclosure 188 for enforcement of arrears of maintenance, premised on the decree nisi dated 21 November 2016, which ordered the respondent to pay RM5,000 monthly to the petitioner until she remarries or the respondent “no longer has income”. The respondent contends that his obligation has

ceased as of 30 April 2024, when his consultancy with Careclinics Healthcare Services Sdn Bhd was terminated. The petitioner, however, maintains that the respondent has failed to prove the cessation of income and has withheld disclosure of the Sale and Purchase Agreement of his clinic, rendering him in breach of the subsisting order.

Issues

a) Whether the decree nisi obligation for maintenance remains enforceable against the Respondent after April 2024.

b) Whether the Respondent has established that he no longer has income within the meaning of the order.

Petitioner’s case

[2]The petitioner maintains that the respondent remains in continuing default of the maintenance order dated 21 November 2016. She emphasises that the respondent’s earlier attempt to vary or rescind the maintenance obligation was rejected by both the High Court and the Court of Appeal. Those courts found that the respondent had failed to make full and frank disclosure, in particular by refusing to produce the alleged Sale and Purchase Agreement relating to the sale of the clinic, and had therefore not demonstrated any genuine inability to continue paying maintenance. On that footing, the petitioner contends that the

maintenance order remains valid, binding, and enforceable against the respondent.

[3]The petitioner further argues that the respondent’s present stance is inconsistent with his conduct. She points to the renewal of his practising certificate in 2025 as indicative of continuing professional capacity and potential income. In support of this contention, she places reliance on the case of Chew Vee Lyn v David Mauricio Velez Hernandez [2023] CLJU 2701 ; Amarjit Kaur Atma Singh v Gurbachan Singh Wazir Singh [2023] CLJU 2154 ;

Respondent’s case

[4]The respondent contends that the maintenance obligation is not absolute but conditional. He relies on the precise wording of the decree nisi dated 21 November 2016, which stipulates that maintenance is payable only as long as he has an income. He says that he sold his clinic in 2022 and was retained only as a consultant for a limited transition period. That retainer as a consultant came to an end on 30 April 2024, after which he no longer received any income. He further contends that bank

statements support his current financial status, and that at his advanced age, coupled with significant medical conditions, he is no longer able to continue working or generate earnings.

[5]The respondent also relies on the statutory principle governing maintenance. Under the Law Reform (Marriage and Divorce) Act 1976 (LRA), particularly section 78Section 78

“In determining the amount of any maintenance to be paid by a man to his wife or former wife or by a woman to her husband or former husband, the court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion such maintenance bears to the income of the husband or wife as the case may be, but shall have regard to the degree of responsibility which the court apportions to each party for the breakdown of the marriage.”

The respondent submits that where a party no longer has the means to pay, the court cannot compel continued payment beyond that party’s financial capacity. Accordingly, once his income ceased, the condition upon which the maintenance order was founded also came to an end. The application of section 78of the Act is reflected in the cases referred to below.

[6]In Parkunan Achulingam v. Kalaiyarasy Periasamy

[3] “In determining the amount of maintenance to be paid, the assessment is based primarily on the means and the needs