JUDGMENT

Siti Norma Yaakob JCA:

These two appeals were heard together as they stem from the same matrimonial proceedings commenced by the wife, the appellant in Civil Appeal Q-02-165-2000, against the husband, the appellant in Civil Appeal Q-02-195-2000.

The parties were married on 29 August 1986, and cohabited at No. 70, Brooke Drive, Sibu, the matrimonial home. They have four children namely:

(1) Stefany Valerie Tiong Fhong (f) ("Stefany") born on 6 June 1987.

(2) Kenneth Tiong Yung Yee ("Kenneth") born on 1 May 1988.

(3) Clara Tiong Siew Ee (f) ("Clara") born on 8 March 1991 and

(4) Kelvin Tiong Yung Yiing ("Kelvin") born on 30 November 1992.

As at the hearing of these appeals before us, the four childen were aged 13, 12, 9 and 8 respectively.

In February, 1999, the husband left the matrimonial home together with Kenneth, Clara and Kevin ("the three children") and they took up residence at 17 1/2 Mile, Ulu Oya Road, Sibu, (the farmhouse) together with one Madam Yong and her four children. The wife continued to reside at the matrimonial home together with Stefany.

On 6 September 1999, seven months after the husband moved out of the matrimonial home, the wife commenced proceedings against the husband claiming inter alia, the following three reliefs.

(1) The guardianship, custody, care and control of the four children.

(2) Monthly maintenance of RM50,000 for herself to take effect from 1 January 1998.

(3) An additional monthly maintainance of RM50,000 for all the four children once custody has been given to her.

Upon the filing of her originating summons, the wife also filed and obtained an ex parteorder restraining the husband from removing or taking away the four children out of Malaysia.

Not to be outdone, the husband also filed an application seeking inter alia, custody, care and control of all the four children.

The wife's originating summons and the husband's application for custody were heard jointly at the end of which Tee Ah Seng, J dismissed both applications and ordered that each party bear its own costs. In considering the wife's application for maintenance the trial judge ruled that she could not take advantage of s. 77(1)(a) of the Law Reform (Marriage and Divorce) Act 1976, ("the Act") as the requirement of para. (a) of sub-cl. (1) of that section had not been met. Alternatively he had no jurisdiction to entertain such an application under ss. 3(2), and 9 of the Married Women and Children (Maintenance) Act 1950, as the jurisdiction to hear such application is vested only to the Magistrates or Sessions Courts.

As for the issue of who should get the guardianship, custody, care and control of the four children, since the affidavits affirmed by both parties conflict each other on all material particulars, the trial judge held that the disputed question of custody be ventilated at the hearing of the petition for divorce. He also took into consideration of the fact that the wife took no positive step to obtain custody after the husband left the matrimonial home but was content to let seven months pass by before filing the originating summons. This delay, he contended, worked against the wife's interests.

It is not disputed that at the hearings of the two applications in the court below, no divorce proceedings had been commenced by any of the parties, although the wife had already taken the necessary step of filing a reconciliation application with the registrar of marriages at Sibu District, Sibu, in accordance with s. 106 of the Act as a prelude to the filing of a divorce petition. It is this absence of a pending divorce petition that had influenced the trial judge to rule that the wife had failed to satisfy the provisions of s. 77(1)(a) of the Act, under which her application for maintenance is made. Section 77(1)(a) in its entirety reads as follows:

77. Power for court to order maintenance of spouse

(1) The court may order a man to pay maintenance to his wife or former wife -

(a) during the course of any matrimonia