Wednesday, February 2, 2011

Family Law 2005 Q1(b)

Shanti and Mustafa lived together for five years and they have a daughter aged two. Mustafa has now left Shanti and is married to another woman. Mustafa wants to take Shanti’s daughter away from Shanti. Shanti wishes to know what are her rights of guardianship over her child and whether she can obtain maintenance for her child from Mustafa.

Advise Shanti.

The Guardianship Act 1961 cannot be applied for the illegitimate child (Re Balasingam & Parvaty). However, the s.24(d) of the Court of Judicature Act 1964 allows the Court to appoint guardian for an illegitimate child (Low Pak Huang v Tan Kok Keong). The nature mother i.e. Shanti of the illegitimate child is the person in whom the parental rights and duties will vest exclusively. Mustapa being the putative father cannot apply for guardianship as s.5 of the Guardianship Act 1961 only applies to lawful father and further he is being a Muslim the Act does not apply for him (Section 1(3) Guardianship of Infants Act 1961). The Common law stand is that the law place upon the mother of an illegitimate child an obligation which ought to in my opinion do bring with then corresponding rights. The Court of equity that the mother’s wish to be consulted, if she has not forfeited the right to consult by any misconduct. Shanti cannot convert the child into other religion upart from what had been practiced on the birth until the child attain the age of 18 (Tan Kong Meng v Zainon Md Zain).

Section 88(3) of LRA provides that where a child is below the age of seven should be placed with the mother for the good of the child unless it is otherwise proven wrong. In Shanta Kumari v Vijayan, the child was 20 months old when he was taken away by this father from his mother, who was at the time living with her own mother. The court held that an infant of tender age should remain with his mother for a period of nurture, and for a natural mother’s love, care and affection. Further, court of the view that should a change of custody takes place it might unsettle the mind of the child and it might develop a permanent emotional scar in the child (Masam v Salina Saropa & Anor). Therefore, Shanti would be successful in obtaining guardianship of the daughter. However, Mustapa would be conferred with right to access, to enable him to visit the child in a specific time (Foo Kok Soon v Leong Rosalina).

Section 93(1) of LRA provides that the court may at any time order a man to pay maintenance for the benefit of his child. There is no necessity for a divorce petition to be filed before section 93 could be invoked in favour of children (Saraswathy v Palakrishnan). It is a settled law that the father has a duty to maintain the standard of living the children had enjoyed in the past, that is, during the subsistence of the marriage and the plaintiff was said to be entitled to claim arrears of maintenance and also a mantle maintenance (Sivajothi a/p K Suppiah v Kunatharan).  This maintenance will be effective until the child attains the age of 18 years (s95 LRA).  Further, if Shanti’s child suffers disability, she can get continuance of the maintenance under s.95(b) of the LRA until ceasing of the disability or alternatively if the child is excel in studies until the child obtain her first university degree (Ching Seng Woah v Lim Shook Lin). Shanti also can claim an arrears of maintenance payment up to three (3) years [s.98 & s.86 of LRA], if any.

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