Question (a)

The issue is whether there are grounds available to Rajah to petition for a divorce

against his wife, Sinniah.

There are three grounds for divorce;(1) conversion to Islam, (2) dissolution by mutual

consent and (3) breakdown of marriage.

The first ground available to Rajah is under breakdown of marriage. Section 53(1) of

Law reform (Marriage and Divorce) Act 1976 stated that either party to a marriage may petition

for a divorce on the ground that the marriage has irretrievably broken down. Section 53(2)

stated that it is duty of the court to enquire into the facts alleged and the circumstances must be

just and reasonable in order for the marriage to be dissolved. Section 54(1)(a) is on the

grounds of breakdown of marriage where the respondent has committed adultery and the

petitioner finds it intolerable to live with the respondent. In Clarkson v Clarkson (1930),

adultery can be defined as voluntary sexual intercourse between a man and woman who are not

married to each other but one of whom is at least a married person.

There are two views with regard to this aspect. The first view is the word ‘and’

interpreted as ‘or’. In Goodrich v Goodrich (1971),1 the principle of the case is the petitioner

must satisfy that the respondent has committed adultery and that the petitioner finds it

intolerable to live with the respondent. It is not necessary to show that he finds it intolerable to

live with the respondent in consequence of the adultery but it is sufficient if the petitioner

genuinely finds it intolerable to do so for whatever reason.

Goodrich decision was affirmed by the Court of Appeal in Clearly v Clearly (1974),2

where the principle is a petitioner cannot rely on his own adultery as leading him to find

intolerable to live with the respondent. The fact of this case is the wife committed adultery and

after a few weeks come to husband. However, after a while left her husband and live with her

mother and took their two children along. Her husband petition under irretrievable breakdown of

marriage on the reason that she committed adultery and refuse to live with him. The husband

also claim that he tried to save the marriage for sake of the children. The wife still keeps in

touch with the man and went out with the man and her husband feel intolerable to live with the

wife. Here, the court look at separate ground and interpreted ‘and’ as ‘or’.

1 2 All ER 13402 1 WLR 73

The second view is the word ‘and’ interpreted as ‘and’. In Roper v Roper (1972),3 the

principle is as consequence of the adultery, the petitioner finds it intolerable to live with the

respondent. This principle is applied in Malaysia.

In applying to this situation, it is clearly stated that in the middle of 2000, Sinniah had

indulged extra marital relations with Muniandy where her children often witnessed that

Muniandy used to visit their home when their father, Rajah was at work and that during those

visits she and the other children were asked to leave the flat while Muniandy and Sinniah stayed

there for about an hour and so. She also constantly absence from the matrimonial home.

Therefore, with regard to this situation, any right thinking person will assume that Sinniah and

Muniandy commit adultery because they were alone in the flat while her husband away.

Furthermore, the children also were asked to leave the flat.

In conclusion, Rajah may petition for a divorce under the ground of adultery under

section 54(1)(a) and by virtue of Roper case where in consequence of the adultery, Rajah

finds it intolerable to live with Sinniah. This principle is applied in Malaysia.

Moreover, Rajah may claim damages for adultery against co-respondent, Muniandy

provided that the allegation of adultery must be proved beyond reasonable doubt. This is clearly

mentioned in section 58(1). Further, section 59(3) stated that whenever in any petition

presented by a husband, the alleged adultery has been established against the co-respondent,

the court may order the co-respondent to pay the whole or any part of the costs of the

proceeding.

In Leow Kooi Wah v Ng Kok Seng Philip & Anor (1995)4 the husband had committed

adultery and his wife claim damages from the co-respondent. In this case, the co-respondent

knew that the petitioner had married with the respondent but she still commit adultery with the

respondent, therefore the court granted the damages.

In Kang Ka Heng v Ng Mooi Tee & Anor (2001)5 the husband claimed that he filed for

divorce under the ground of breakdown of marriage and the wife file to dismiss the husband

petition. During the petition, the husband admitted that he had affair with another woman. The

court allowed the wife petition to claim damages from other party provided that the allegation of

adultery must be proved beyond reasonable doubt.

3 1 WLR 734 1 MLJ 8525 3 MLJ 331

Similarly, in the case of Karen Cheong Yuen Yee v Phua Cheng Chuen (2004)6 the

court decided that for an allegation of adultery, the standard of proof should be beyond

reasonable doubt. Based on the fact of this case, the court held that the petitioner had failed to

prove that the husband has committed the act of adultery.

The second ground available is also under breakdown of marriage under section 54(1)

(b) where the respondent has behaved in such a way that the petitioner cannot reasonably be

expected to live with the respondent. In Katz v Katz (1972)7the court held that behaviour is

something more than a mere state of affairs or a state of mind. It is an action or conduct by one

which affects the others.

There are two views in this aspect. The first view is the sole test to be prescribed as the

nature of behaviour is that it must be such as to justify a finding that a petitioner cannot be

reasonably expected to live with the respondent. In Thurlow v Thurlow (1975)8, the court held

that only behaviour of one party of the marriage has to be considered. However, in other cases

as will be mentioned later, the test was held to be objective.

The second view is in determining whether the petitioner can or cannot reasonably be

expected to live with respondent, the court must take into account the character, personality,

disposition and behaviour of the petitioner and the respondent as alleged and establish in

evidence.

There are three objective tests that can be applied to prove breakdown of marriage.

Firstly is reasonable man’s test. Dunn J formulated this test in Livingstone Stallard v

Livingstone Stallard (1974)9 that would any right-thinking person come to the conclusion that

this husband has behaved in such a way that this wife cannot reasonably be expected to live

with him, taking into account the whole world of circumstances and the characters and

personalities of parties.

Secondly is the behaviour test whereby the behaviour of both parties must be

considered. In Ash v Ash (1972)10, Bagnall J held that the court must not consider only on the

behaviour of the respondent but also the character, personality, disposition, as well as the

behaviour of the petitioner.

6 291 MLJU 17 3 All ER 2198 2 All ER 9799 2 All ER 76610 1 All ER 582

Lastly is whether there is a breach of the obligation between both parties as applied in

Pheasant v Pheasant (1972)11. In this case, the petitioner husband alleged that the wife had

not given him the spontaneous demonstrative affection, which his nature demanded and for

which he claimed that it caused the marriage to be irretrievably broken down. It was held that it

was nothing in the wife’s behaviour which could be regarded as a breach on her part of any of

the obligations of the marriage or effectively contributing to breakdown of the marriage. The

husband’s petition for divorce was dismissed.

These tests were followed in the Malaysian case of Joseph Jeganathan v Rosaline

Joseph (1989)12, where KC Vohrah J referred to the test formulated in the case of Livingstone

Stallard in assessing what is reasonable in context of section 54(1)(b) of the LRA, before

granting a decree nisi. In this case, the husband seeking the dissolution of the marriage,

alleging that the marriage had broken down irretrievably in that the respondent had behaved in

such a way that he could not reasonably be expected to live with her. The evidence adduced

showed that the matrimonial home was filled with the bitterness, strive, suspicion, and tension,

generated by frequent violent quarrels. There were virtually daily absences of several hours by

the respondent from the matrimonial home and at times for period up to 70 to 80 days. Efforts of

reconciliation had been a failure. The court held that the test which can be applied is whether a

right-thinking man would come to the conclusion that the respondent had behaved in such a

way that the petitioner could not reasonably be expected to live with the respondent. The court

had to consider the whole circumstances and the characters as well as personalities of the

parties. The court in this case granted the decree nisi to the petitioner and held that the

marriage had in this matter, irretrievably broken down.

In other words, it shows that the court must assess the impact and effect of the

respondent’s conduct or behaviour on the petitioner on the light of their marriage and their

relationship and also consider the petitioner’s behaviour.

Similarly, in Hariram Jayaram v Saraswathy Rajahram (1990)13, the court has adopted

the decision in Katz v Katz and Pheasant v Pheasant on the question of standard behaviour in

section 54(1)(b) of the LRA.

In applying to this situation, there are several circumstances in the fact that shows on the

bad character on part of Sinniah where Rajah or any right-thinking person cannot reasonably be

11 1 All ER 58712 3 MLJ 10613 1 MLJ 114

expected to live with her. Firstly in the middle of 2000, Sinniah had indulged in extra marital

relations with Muniandy. Moreover, Sinniah had constantly absence from the matrimonial home

had inflicted on the traumatic wound upon Rajah’s mind until it reached a stage beyond

endurance. To worsen the situation, in 2003 she again left the matrimonial home for 10 months.

Further, she finally left from the matrimonial home.

Here, the constant leaving on part of Sinniah has shown that she is no longer interested

in continuing the marriage and Rajah or even any right-thinking person would come to the

conclusion that Sinniah has behaved in such a way that Rajah cannot reasonably be expected

to live with her. The fact also has shown that Sinniah’s acts or behaviours of constantly absence

from the home had inflicted a traumatic wound upon Rajah’s mind until it reach a stage beyond

endurance. Hence, the reasonable man’s test applied.

Therefore, Rajah may petition for divorce under section 54(1)(b) if he can proved that a

right-thinking man in all the circumstances would conclude that his wife had behaved in such a

way that he could not be reasonably expected to live with his wife after considering the whole

circumstances and the characters as well as personalities of the parties.

In conclusion, the best ground for divorce could be breakdown of marriage by virtue of

section 54(1)(b) on the ground of behaviour since Sinniah’s acts or behaviours of constantly

absence from the home had inflicted a traumatic wound upon Rajah’s mind until it reach a stage

beyond endurance. Hence, the reasonable man’s test applied.

It is undeniable that there is a possibility on the allegation of adultery. However, Rajah

was away for work, he may not know that his wife had committed adultery with another man,

Muniandy and the allegation of adultery must be proved to the satisfaction of the court and

beyond reasonable doubt. Therefore, since Rajah was away, their children were asked to leave

the flat while Muniandy and Sinniah were alone in the flat and no other witnesses it is hard to

prove the adultery had been committed by Sinniah.

Question (b)

The issue is whether Rajah could get custody over his three children aged twelve,

eleven and nine.

According to Section 5(1) of Guardianship of Infants Act 1961, parents must be given

equal rights of guardianship over their children. Section 11 of the same Act states court shall

have regard primarily to the welfare of the infant.

Section 88(1) of Law Reform (Marriage and Divorce) Act 1976 (LRA) states that the

court may at any time make an order of custody. It means that an application for custody could

be made without a petition for divorce. Section 88(2) of the same Act states that in deciding

custody of child, welfare of the child should be given paramount consideration. Apart from

wishes of the parents of the child14, wishes of the child who of an age to express independent

opinion also need to be considered15.

In the case of Re Satpal Singh, An Infant16 which referred to English case, Re Thain17,

the court held that welfare of the child as a whole must be considered. It is more than merely a

question of whether or not the child would be happier in one place compared to another place

but his general well-being. ‘Welfare’ has been defined as physical as well as moral welfare in

the case of Allen v Allen18.

In the case of Goh Kim Hua v KhooSweeHuah (1986), the court recognised that there

was immoral upbringing when the father brought mistress home. Even so, custody of son was

granted to the father based on wishes of the son himself who wanted to stay with his father

since he was in the age to express independent opinion. In Winnie Yong v William Lee Say

Beng (1990), court had granted custody to the father even though he had brought mistress

home because he contended that his wife refused to give divorce thus caused him to have

mistress.

Judgment of Laura Dorris a/p Laurence v Thuraisingam a/l James (1995) was in

favour of the father when the mother was having free lifestyle and adopt adultery as a way of

life. In the case of Wakeham v Wakeham19, the husband was granted a divorce on the ground

of desertion by the wife and the father, an innocent party, had been given the custody of the

children.

14 S 88 (2)(a) Law Reform (Marriage and Divorce) Act 197615 S 88 (2)(b) Law Reform (Marriage and Divorce) Act 197616 [1958] MLJ 28317 [1926] Ch 67618 [1951] All ER 72419 [1954] 1 WLR 366

Referring to the case beforehand, Rajah has 7 children where 4 of the children are living

with him while the other 3 are living with the mother. As according Section 88(1) of LRA, Rajah

can make application of custody even though there is no petition of divorce yet. Welfare of the

children aged 12, 11 and 9 will be given paramount consideration by court in delivering

judgement as according the case of Re Satpal Singh,20Section 11 of Guardianship of

Infants Act as well as Section 88(2) of LRA.

Physical and also mental well-being of the children plays an important factor in deciding

custody as in the case of Allen v Allen21. In this case, Sinniah had constantly leaving the 3

children and the matrimonial home when she found the moment propitious. It can be assumed

that Sinniah is an irresponsible mother since she was not reluctant to leave the children

unattended at home. Besides, she is living in immoral lifestyle since it can be assumed that she

had committed adultery when she brought Muniandy home while Rajah was at work and she

also asked the children to leave the house.

Furthermore, it was immoral upbringing since Sinniah had brought Muniandy home and

the children knew about this since they were asked them to leave the house while they stayed

there about an hour and so. This immoral upbringing had been acknowledged in the case of

Goh Kim Hua v KhooSweeHuah (1986) since the father had brought mistress home. This will

affect the upbringing of the children as they will be nurtured with bad moral values since there

are all still young and not mature enough to differentiate good and bad things.

In applying Allen v Allen22, it can be said that the moral welfare of the child is badly

affected by Sinniah’s behaviour. She should not give a bad example to her children since she is

the mother who responsible to paint the children’s attitude. In giving paramount consideration to

the welfare of the children as a whole, as according to Re Satpal Singh23, custody should be

given to Rajah. In contrast with Winnie Yong v William Lee Say Beng (1990), there is nothing

to justify the act of Sinniah to bring Muniandy home since Rajah is an innocent party as there is

nowhere stated negative conduct on Rajah’s part.

To conclude, Rajah could get custody over his three children aged twelve, eleven and

nine since according to Dorris a/p Laurence v Thuraisingam a/l James, the mother who

makes adultery as a way of life and having a free lifestyle should not be granted custody.

20 [1958] MLJ 28321 [1951] All ER 72422 ibid23 [1958] MLJ 283

Sinniah can be said to commit adultery more than once because she is pregnant of Muniandy’s

child. The assumption that she is pregnant of Muniandy’s child is made because she had

carried out abortion as she might be afraid if one day Rajah could discover about her

pregnancy. Rajah might get suspicious that Sinniah had had sexual intercourse with someone

else since she had left the matrimonial home more than the age of her pregnancy.

However, it must be noted, inter alia, the order of custody will depends on the wishes of

the 3 children because they are of an age to express their own independent opinions.

Question (c)

The first issue in this problem is whether Rajah has obligation to continue paying

maintenance to Sinniah in the event that he failed in his claim for a divorce.

Due to this situation, it can be inferred that the marriage is still subsisting and Married

Women and Children (Maintenance) Act 1950 will be applicable to his situation. According to

the general rule, section 3(1) in this act states that the court may order a man to pay

maintenance to his wife if he neglects or refuses to do so.

In the case of Raquiza v Raquiza (1947), Justice Brown stated that “it is a common law a

duty of the husband to maintain his wife and honest is upon him to prove that some good

reasons for him not to perform his duty.” Some illustrations for ‘good reasons’ can be made are

if the wife is living in adultery or refuses to live with the husband without any sufficient reason. It

is strengthened by section 5(2) whereby no wife shall be entitled to receive any allowance from

her husband if she is living in adultery or she refuses to live with her husband without any

sufficient reason.

In applying to the situation, the court may order Rajah to pay maintenance to his wife if

he refuses to do so as under Section 3(1) mentioned above. However, the fact states that

Sinniah had indulged in extra marital relations with Muniandy shows Sinniah had committed

adultery and as the reason she refused to live with Rajah because of stress and strain of their

relationship as a wife and a husband did not justified a sufficient reason to invoke section 5(2).

In addition, it must be identified as to the act of adultery is sufficient with a single act or it

must be done continuously. In Fries v Fries (1951), it was held that a single action of adultery is

sufficient and the husband has right not to pay maintenance to his wife. On the contrary, in

JalendraNath Mohan Banerjee v GauriBala Devi, it was held that it cannot be held from a single

act of adultery unless there is continuity of conduct that the wife is living in adultery. Accordingly,

in the Malaysia’s case of Raja Lakshmi, the court dismissed the wife’s maintenance because of

her act of adultery and left home without sufficient reason.

Since the application of Section 5(2) would be a continuous act of adultery, it seems that

when Sinniah’s children often witnessed Muniandy used to visit their home and during those

visits the children were asked to leave the flat while Muniandy and Sinniah stayed there or

about an hour and so, there is a continuous act of adultery and Rajah can fulfill the element in

section 5(2) that he can deny to pay maintenance to his wife.

On the other hand, if the court still orders Rajah to pay maintenance to his wife, Section

4 of the act24 should not be overlooked. It provides that if the husband willfully neglects to

comply the order to pay maintenance to his wife, he can be fined or be sentenced to

imprisonment. So, if Rajah failed to prove continuous act of adultery on part of Sinniah and the

24Married Women and Children (Maintenance) Act 1950.

reason Sinniah refused to live with him is sufficient, Rajah can be punished accordingly. Yet, the

court may order him to pay fine only instead of imprisonment based on the case of Yap

KeeSwee v KuaTiang Lai whereby the court refused to send the husband to prison but have to

pay fine only because they are still in marriage relationship.

Therefore, since Rajah failed in his claim for divorce so that he and Sinniah still a

husband and wife, what he can do is to rely on Section 5(2) if he refuses to continue paying

maintenance to Sinniah. As the facts clearly showSinniah’s act of adultery is continuous and

she refused to live with Rajah without sufficient reason, Rajah has right not to continue paying

maintenance to Sinniah.

The other issue is whether Rajah is in obligation to continue paying maintenance to

Sinniah in the event where there is a divorce between him and Sinniah.

Law Reform (Marriage and Divorce) Act 1976 will be applicable for this situation as there

is a petition for divorce. Specifically, it will fall under section 77(1)(b) whereby the court may

order a man to pay maintenance to his former wife subsequent to the grant of a decree of

divorce.

Furthermore, the assessment of maintenance will be in Section 78 whereby the husband

is liable to pay maintenance of his ex-spouse according to the means and needs of the parties.

In Koay Cheng Eng v Linda HerawatiSantoso25, the court took into account the standard of living

of the parties, the duration of the marriage, whether they were any children of the marriage and

so on.

In this problem, since this couple has 7 children, the basic needs would be higher than

other ordinary family. Plus, as they live in the flat, the court should consider Rajah’s earning

capabilities before determining the amount of any maintenance to be paid by Rajah to Sinniah.

It can be presumed that Rajah earned low income since they only afford to live in flat so the

assessment amount of maintenance should be accordance to the means and need of Rajah

and Sinniah.

The second ambit of Section 78 is then about the effect of breakdown of marriage. It

provides that if the other party to the marriage causes the breakdown of the marriage, the

amount of maintenance would be affected. It is supported by the principle in the case of Lee Yu

25[2004] 6 MLJ 395.

Lan v Lim ThainChye26where the court took into account the responsibility on the part of

respondent husband or the breakdown of the marriage before arriving at an appropriate sum of

maintenance.

With regard to this situation, since it is obviously stated that Sinniah’s act of adultery with

Muniandy is the causes for breakdown of marriage, the amount of maintenance she could get

will be lesser than the amount of maintenance she get before she committed adultery.

In conclusion, Rajah’s obligation to continue paying maintenance to Sinniah will not be

ceased upon the petition of divorce between him and Sinniah but it only affected the amount of

maintenance to Sinniah. It will become lesser because ofSinniah who causes the breakdown of

marriage. If there is arrear of maintenance by Rajah due more than 3 years before the petition

of divorce due to his doubtful of his obligation to continue pay maintenance to Sinniah,

Sinniahcan only claim the amount due within 3 years before the divorce was granted by the

court. It is clearly stated in section 86(3) of the act27.

Question (d)

Under the law, maintenance of the spouse and child are provided separately, the spouse

under Part VII of the LRA and the child under Part VIII of the said Act. Besides, Section 3 of

Married Woman Act states that court may make order for maintenance of wife and children in

proportion to the means of such person, as to the court seems reasonable.

26 [1984] 1 MLJ 5627Law Reform (Marriage and Divorce) Act 1976

It is a general duty of a parent to maintain the children as clearly stated under Section 92

of the LRA. Further, in Section 93, it is power of the court to order maintenance for benefit of

child which supplementary explained in subsection (1)(a) until (d) that in situation where parent

neglected child, desertion circumstances, during pendency of any matrimonial proceeding and

at the time of making decision determining custody. Section 93(3) also highlighted that the court

may order payment be made to the person having custody or care of the child.

However, it must be noted that the maintenance of children also contained an expiration

order as stated under Section 95. The provision indicated that the duty to maintain child shall

expire upon two circumstances namely, on the attainment of 18 years old or the ceasing of

child’s physical and mental disability.

This principle was illustrated in the case of Karunai Rajah a/l Rasiah v Punithambigai a/p

Puniah (2004)2 CLJ 365. The petitioner and the respondent's marriage was dissolved in 1997.

They had three children from the marriage. Pursuant to a consent order dated 30 January 1997,

the respondent made monthly maintenance payments for all the three children (at RM 1,400 per

child) until April 1998. In May 1998, the respondent indicated that he would cease payment for

the eldest child, Anitha a/p Karunairajah, as she had attained the age of 18 years. The consent

order, however, did not stipulate that the maintenance payments should cease upon the child

attaining the age of 18 years.

Thus, the petitioner sought an order from the court to compel the respondent to continue

making maintenance payments to Anitha, and by necessary implication to the other two children

until the completion of their tertiary education. The issue before the Court was whether the

involuntary financial dependence of a child of the marriage for the purposes of pursuing and/or

completing tertiary education in order to obtain a first degree came within the exception of

physical disability under section 95 of the LRA so as to entitle the child to maintenance beyond

the age of 18 years.

The Federal Court's decision in the present case has limited the interpretation given by

the High Court and the Court of Appeal to the phrase "physical or mental disability" in section 95

of the LRA.  It was held that the respective husband need not to continue pay the maintenance

because the court follows strictly the intention of the Act. Whatever Act has decided, the Court

will not go to interpret further. The word “disability” only invokes to physical and mental disability

but not including financial difficulty. Therefore, the judgment was given on behalf of the

respondent.

Nevertheless, this case must be distinguished with the case of Ching Sing Woah v Lim

Shook Lin [1997] 1 MLJ 109, where the father had took oath to his two daughters to pay the

maintenance until they completing tertiary education in order to obtain a first degree. The court

in this case held that eventhough the involuntary financial dependence of a child of the marriage

for the purposes of pursuing and/or completing tertiary education in order to obtain a first degree

does not came within the exception of physical disability under section 95 of the LRA so as to

entitle the child to maintenance beyond the age of 18 years, but the father has moral obligation

to fulfilled his promise made to his daughters. Therefore, the father must continue pay

maintenance regardless the children have attained beyond the age of 18 years old.

To apply in the situation before hand, the fact of the question is silent on whether the two

sons are still pursuing their education. Besides, the fact also does not state whether Rajah had

made any promise to them nor the sons were suffering any physical or mental disability.

Therefore, based on the general rule in Section 95 and the case of Karunai Rajah, it can

be assumed that  Rajah’s duty to maintain the two sons shall expire since the sons already

attained the age of 19 and 20 years old respectively.

Question (e)

The issue is whether Rajah can claim a share in the matrimonial house since it was a

wedding gift from Sinniah’s mother.

Section 76(1) of Law reform (Marriage and Divorce) Act 1976 stated that the court

shall have power, when granting a decree of divorce or judicial separation to order the division

between the parties of any assets acquired by them during the marriage either by their joint

efforts or the sale of any such assets and the division between the parties of the proceeds of

sale. Section 76(2) (a)-(c) stated that the court may order for the division of the property based

on the extent of the contributions made by each party, debts owing by either party which were

contracted for their joint benefit, and the needs of the minor children.

Section 76(3) and section 76(4) are on the sole effort where if the asset is acquired by

the sole effort of one party, the party by whose effort the assets were acquired shall receive a

greater proportion. The court will look into the extent of contribution by the other party who did

not acquire the assets to the welfare of the family by looking after the home or caring for the

family.

In Lee Yu Lan v Lim Thian Chye (1984)28 the principle of the case is if the asset is

acquired by the sole effort of one party, the party by whose effort the assets were acquired shall

receive a greater proportion. The court will look into the extent of contribution by the other party

who did not acquire the assets to the welfare of the family by looking after the home or caring

for the family. In this case, the wife had claimed that she had contributed to the matrimonial

home by caring and rearing the children at home and other general duties attended by her as a

housewife. The house was worth RM 191,000 and the court granted the wife RM 60,000 which

was one third of the proceeds of sale.

In Lim Bee Cheng v Christopher Lee Joo Peng (1996), the court held that if the

property obtained by sole effort of respondent, it is mandatory that it should be given a greater

proportion of it to him. This is because section 76(4) mention that in any case, the party by

whose effort the asset is acquires shall receive a greater proportion.

Further, in Ching Seng Woah v Lim Shook Lin (1997)29 the husband together with his

mother bought property and later his mother transfer all her share to her son and this has made

him as sole owner of the house. His wife looks after the house and bought furniture. Here,

Justice Shankar stated that house was not a home without furniture therefore the wife was given

half of the undivided share from the house.

In applying to this situation, since the matrimonial house was a wedding gift from

Sinniah’s mother this is the property of Sinniah. Here, Rajah had made necessary extension on

the house after their marriage. By virtue of section 76(4)(a), Rajah may claim for the house

even though it was a wedding gift from Sinniah’s mother because he had made a necessary

28 1 MLJ 5629 1 MLJ 125

extension on the house after their marriage. In an ordinary event, the extension of a house will

increase the value of the house itself. Hence, in this situation it can be presumed that the

extension of the house will give rise to the value of the house and the court may order for share

of the matrimonial house to Rajah based on his contribution to the extension of the house that

had raised the value of the house.

This can be clearly seen in the case of Shirley Khoo v Kenneth Mok Kong Chua

(1989) where the wife in this case had cared for the house so well and caused the value of the

house from RM 29,000 appreciated to RM 175,000. Therefore, the court granted her one third of

RM 175,000.

Moreover, the fact that Rajah only earns RM 800 every month and has the obligation to

maintain the children are another reason for the court to consider in order to grant share in the

matrimonial house to Rajah by virtue of section 76(4)(b).

In conclusion, Rajah may get a share in the matrimonial house by virtue of section 76(4)

and the case of Lee Yu Lan and Shirley Khoo.