Faiza Tamby Chik J:

[1] The application before me today is the respondent wife's ('the wife') application for interim maintenance. The particular facts of this case and the legal position of the parties are peculiar to this case and this application for maintenance must be viewed against those facts. Here, the petitioner husband ('the husband') had de facto custody, care and control of the two children of the marriage since 6 August 2000 and interim guardianship, custody, care and control of the two children since the order dated 18 August 2000 (which order was subsequently extended on 30 August 2000 and 13 September 2000 with the wife's consent). The children had remained in the custody, care and control of the husband, living with the husband in his parent's home for three years, with access to the wife. This was the status quo until 15 April 2003 when the children were not returned to the husband after the wife's access. Thereafter the wife has retained the children. On 14 October 2003, a final order was made by the court granting guardianship, custody, care and control of the two children to the husband. The wife has filed an appeal and obtained a stay pending appeal. The appeal is fixed for hearing on 11 October 2004 at which point this whole issue of maintenance pending suit may become moot and academic. The status quo that currently exists and which forms the basis of the wife's application has been created by the wife by her own actions in retaining the children since 15 April 2003 in direct contravention and with total disregard of orders made by this court, giving guardianship, custody, care and control to the husband.

[2] I think the wife cannot be allowed to have her actions condoned in retaining the children in contravention of court orders by now asking this court to order maintenance against the party who in fact has legal guardianship, custody, care and control of the children. Cognizance must be taken of the fact that the court of Appeal ordered a stay of the final custody order because they were of the view that the husband's rightful action to enforce the order should have been to engage in committal proceedings against the wife (see para 7 of the husband's second affidavit affirmed on 7 September 2004). I am of the opinion that the stay in no way reversed the existing final order, and in no way condoned the actions of the wife in wrongfully keeping the children with her. In fact, the order for stay compels me to leave the de facto status as it stands pending the appeal. It does not give custody or any legal rights to the wife. In the light of the legal positions and the fact that the appeal is coming on for hearing on 11 October 2004, in exactly two weeks from Monday 27 September 2004, this issue of interim maintenance may become academic. There is ample authority for the proposition that this court should be slow to sanction a party's wrongful behaviour which has the effect of consolidating the position created by that party's wrongdoing and to create a situation which, in the long run, might well give rise to prolonged uncertainty in relation to the children's situation (see Townson v. Mahon [1984] FLR 690 at p 697).

[3] The law on the provision and assessment of maintenance in Malaysia is clearly set out our Law Reform (Marriage and Divorce) Act 1976 ('LRA'). In relation to spousal maintenance, s 78 of the LRA states that:

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.

[4]Section 78 of the LRA is clear in that the criteria that the court needs to consider when considering maintenance for the