JUDGMENT

Abdul Hamid Mohamad JCA:

In this judgment the respondent (husband) in the High Court proceeding will be referred to as "the appellant" and the petitioner (wife) in the High Court will be referred to as "the respondent". They are both medical doctors. They were married on 1 May 1983. They were separated on 27 October 1990. A decree nisiwas issued on 17 September 1993 and was made absolute on 9 May 1994.

This appeal is against the order of the court regarding the division of their matrimonial assets.

At the time of the marriage both parties were employed as medical doctors at the Mentakab District Hospital. After two years of marriage the appellant resigned from government service and joined a group practice in Shah Alam. They set up their matrimonial home in Shah Alam, at a rented house. During that period the respondent (wife) travelled from Mentakab to Shah Alam during weekends. Shortly thereafter she joined the Keretapi Tanah Melayu (KTM). She was given quarters at Kenny Hills. However, they continued to live at the rented house in Shah Alam. The KTM house was occupied by the respondent's parents for about nine months. In December 1986 the parties used the KTM house as the matrimonial home until their separation in October 1990.

On 21 August 1987 the appellant opened a clinic at No. 43, Jalan Silang, Kuala Lumpur under the name of "Klinik Inter-Med". However, the respondent remained in the KTM service, in view of the stable income and the benefits of housing and its free maintenance. In early 1990 the appellant purchased a property, the Crescent Court Apartment for RM117,000.

The terms of the order made by the learned Judicial Commissioner (as he then was) on 12 May 1997 are as follows:

(1) That the apartment be valued by a qualified valuer to be agreed by the parties and after deduction of the redemption sum of RM90,000 the respondent is awarded one half of the value in cash.

(2) That the appellant do pay the respondent RM20,100 together with interest at 4% per annum from October 1992 to 12 May 1997, being one half of the rental shortfall.

(3) That the appellant pay the respondent RM43,000 being rental due to the respondent from 1 October 1993 until to date and still continuing until such time as the said property is valued and the respondent given her half share.

(4) That the appellant do pay the respondent RM1,133 from the Maybank Savings Account.

(5) That, within seven days of the date of the order, the appellant nominate the sole daughter of the marriage, Shaleen d/o Sivanes, as sole beneficiary of the two Great Eastern Life Assurance insurance policies.

(6) That the appellant pay the respondent RM200,000 being the respondent's entitlement to one-third of the income from Klinik Inter-Med.

Before us, learned counsel for the appellant challenged items (1), (2), (3) and (6).

However, before dealing with each of the items challenged, there is one general argument that has to be considered first. Learned counsel for the appellant argued that the approach of the learned Judicial Commissioner (as he then was) was wrong. The learned Judicial Commissioner (as he then was), especially in awarding the rental shortfall (item (2)), occupation rent (item (3)) and one third share of the income of Klinik Inter-Med (item (6)) had contravened the provisions of s. 76 of the Law Reform (Marriage and Divorce) Act 1976. He argued that that section envisaged the division of assets acquired during the marriage and available at the time of the divorce, not the division of past income which was no longer available for distribution at the time of the divorce. He submitted that it was wrong for the court to "do an accounting between the parties" as in the case of, say, two partners in a partnership business in a civil suit. The division of matrimonial assets in a divorce petition is governed by s. 76 of the Act, he submitted.

I find this a very interesting argument. Section 76 of the Act provides:

76. Power for court to order division of