MAINTENANCE OF WIFE, CHILDREN AND OTHERS

Part VI

MAINTENANCE OF WIFE, CHILDREN AND OTHERS

Power of Court to order maintenance of wife, and the effect of nusyuz

60.

(1) The court may, subject to Hukum Syarak, order a man to pay maintenance to his wife or former wife.

(2) Subject to Hukum Syarak and confirmation by the Court, a wife shall not be entitled to maintenance when she is nusyuz or unreasonably refuses the lawful wishes or commands of her husband, that is to say, inter alia�

(a) when she withholds her association with her husband;

(b) when she leaves her husband´s home against his will; or

(c) when she refuses to move with him to another home or place, without any valid reason according to Hukum Syarak.

(3) As soon as the wife repents and obeys the lawful wishes and commands of her husband, she ceases to be nusyuz.

Power of Court to order maintenance of certain persons

61. The Court may order any person liable thereto according to Hukum Syarak, to pay maintenance to another person where he is incapacitated, wholly or partially, from earning a livelihood by reason of mental or physical injury or ill-health and the Court is satisfied that having regard to the means of the first- mentioned person it is reasonable so to order.

Assessment of maintenance

62. In determining the amount of any maintenance to be^ paid, the Court shall base its assessment primarily on the means and needs of the parties, regardless of the proportion the maintenance bears to the income of the person against whom the order is made.

Power of Court to order security for maintenance

63. The Court may, when awarding maintenance, order the person liable to pay the maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay the maintenance or a part thereof out of the income from the property.

Compounding of maintenance

64. An agreement for the payment, in money or other property, of a capital sum in settlement of all future claims to maintenance shall not be effective until it has been approved, with or without conditions, by the Court, but when so approved shall be a good defence to any claim for maintenance.

Duration of orders for maintenance

65. Except where an order for maintenance is expressed to be for any shorter period or is rescinded, and subject to section 66, an order for maintenance shall expire on the death of the person against whom or in whose favour the order was made, whichever is the earlier.

Right to maintenance or pemberian after divorce

66.

(1) The right of a divorced wife to receive maintenance from her former husband under any order of Court shall cease on the expiry of the period of ´iddah or on the wife being nusyuz.

(2) The right of a divorced wife to receive a pemberian from her former husband under an agreement shall cease on her remarriage.

Power of Court to vary orders for maintenance

67. The Court may at any time and from time to time vary, or may at any time rescind, any subsisting order for maintenance, whether secured or unsecured, on the application of the person in whose favour or against whom the order was made, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

Power of Court to vary agreements for maintenance

68. Subject to section 64, the Court may at any time and from time to time vary the terms of any agreement as to maintenance made between husband and wife, whether made before or after the appointed date, where it is satisfied that there has been any material change in the circumstances, notwithstanding any provision to the contrary in the agreement.

Maintenance payable under order of Court to be inalienable

69. Maintenance payable to any person under any order of Court shall not be assignable or transferable or liable to be attached, sequestered, or levied upon for, or in respect of, any debt or claim.

Recovery of arrears of maintenance

70.

(1) Arrears of unsecured maintenance shall be recoverable as a debt from the defaulter and, where they accrued due before the making of a receiving order against the defaulter, shall be provable in his bankruptcy and, where they accrued due before his death, shall be a debt due from his estate.

(2) Arrears of unsecured maintenance that accrued due before the death of the person entitled thereto shall be recoverable as a debt by the legal personal representatives of the person.

Interim maintenance

71.

(1) Where the Court is satisfied that there are grounds for payment of maintenance, the Court may make an order against the husband for payment of interim maintenance to take effect at once and to be in force until an order of Court is made on the application for maintenance.

(2) The husband may adjust the interim maintenance paid against the amount ordered to be paid for maintenance under the order of the Court, provided that the amount received by the wife, after any deduction, is sufficient for her basic needs.

Right to accommodation

72.

(1) A divorced woman is entitled to stay in the home where she used to live when she was married, for so long as the husband is not able to get other suitable accommodation for her.

(2) The right to accommodation provided in subsection (1) shall cease�

(a) if the period of ´iddah has expired;

(b) if the period of guardianship of the children has expired;

(c) if the woman has remarried; or

(d) if the woman has been guilty of open lewdness (fahisyah),

and thereupon the husband may apply to the Court for the return of the home to him.

Duty to maintain children

73.

(1) Except where an agreement or order of Court otherwise provides, it shall be the duty of a man to maintain his children, whether they are in his custody or the custody of any other person, either by providing them with such accommodation, clothing, food, medical attention, and education as are reasonable having regard to his means and station in life or by paying the cost thereof.

(2) Except as aforesaid, it shall be the duty of a person liable under Hukum Syarak to maintain or contribute to the maintenance of children if their father is dead or his whereabouts are unknown or if and so far as he is unable to maintain them.

Power of Court to order maintenance for children

74.

(1) The Court may at any time order a man to pay maintenance for the benefit of any child of his�

(a) if he has refused or neglected to provide reasonably for his child;

(b) if he has deserted his wife and the child is in her charge;

(c) during the pendency of any matrimonial proceedings;

(d) when making or subsequent to the making of an order placing the child in the custody of any other person; or

(e) when permitting him to solemnize another marriage under section 23.

(2) The Court shall have the corresponding power to order a person liable under Hukum Syarak, to pay or contribute towards the maintenance of a child where it is satisfied that having regard to his means it is reasonable so to order.

(3) An order under subsection (1) or (2) may direct payment to the person having custody or care and control of the child or to the trustee for the child.

Power of Court to order security for maintenance of a child

75.

(1) The Court may, when ordering the payment of maintenance for the benefit of any child, order the person liable to pay the maintenance to secure the whole or any part of it by vesting any property in trustees upon trust to pay the maintenance or a part thereof out of the income from the property.

(2) Failure to comply with the order requiring the person liable to vest any property in trustees for the purpose of subsection (1) shall be punishable as a contempt of Court.

Power of Court to vary order for custody or maintenance of a child

76. The Court may, on the application of any interested person, at any time and from time to time vary, or at any time rescind, any order for the custody or maintenance of a child, where it is satisfied that the order was based on any misrepresentation or mistake of fact or where there has been any material change in the circumstances.

Power of Court to vary agreement for custody or maintenance of a child

77. The Court may at any time and from time to time vary the terms of any agreement relating to the custody or maintenance of a child, whether such agreement was made before or after the appointed date, notwithstanding any provision to the contrary in the agreement, where it is satisfied that it is reasonable and for the welfare of the child so to do.

Recovery of arrears of maintenance of a child

78. Section 71 shall apply, mutatis mutandis and according to Hukum Syarak, to orders for the payment of maintenance for the benefit of a child.

Duty to maintain child accepted as member of family

79.

(1) Where a man has accepted a child who is not his child as a member of his family, it shall be his duty to maintain the child while he or she remains a child, so far as the parents of the child fail to do so, and the Court may make such orders as may be necessary to ensure the welfare of the child.

(2) The duty imposed by subsection (1) shall cease if the child is taken back by either of his or her parents.

(3) Any sum expended by a man in maintaining a child as required by subsection (1) shall be recoverable from the father or mother of the child.

Duration of order for maintenance of a child

80. Except�

(a) where an order for the maintenance of a child is expressed to be for any shorter period;

(b) where any such order has been rescinded; or

(c) where any such order is made in favour of-

(i) a daughter who has not been married or who is, by reason of some mental or physical disability, incapable of maintaining herself; or

(ii) a son who is, by reason of some mental or physical disability, incapable of maintaining himself,

the order for maintenance shall expire on the attainment by the child of the age of eighteen years, but the Court may, on application by the child or any other person, extend the order for maintenance to cover such further period as it thinks reasonable, to enable the child to pursue further or higher education or training.

Duty to maintain illegitimate children

81.

(1) If a woman neglects or refuses to maintain her illegitimate child who is unable to maintain himself or herself, other than a child bom as a result of rape, the Court, upon proof thereof, may order the woman to make such monthly allowance as the Court thinks reasonable.

(2) A monthly allowance under this section shall be payable from the date of commencement of the neglect or refusal to maintain or from such later date as may be specified in the order.