A note on Foo Dui Geng's case

The High Court struck off 22-year old Foo Dui Geng's application. Foo applied for the court order to compel his father to pay maintenance (tuition fees over RM80K, accommodation and allowances) until he completes his first degree in United Kingdom.


Issues: Should the Maintenance for the children have ceased upon their reaching 18?

Conclusion: Base on the authority of KARUNAIRAJAH RASIAH V. PUNITHAMBIGAI PONIAH (Federal Court) and the spirit of stare decisis, Foo's case was struck out.

Chronology of judgements:
1. CHING SENG WOAH V. LIM SHOOK LIN (COURT OF APPEAL, KUALA LUMPUR)
[1997] 1 CLJ 375

The Court of Appeal held that in appropriate cases, involuntary financial dependence was a physical disability under s. 95.

The Court of Appeal has the following observation:
"An 18 year old computer whiz-kid who is a wheel chair case and therefore well able to earn a living at that age could here be contrasted with another 18 year old who is physically and mentally fit but is otherwise totally unable to fend for himself on the job market. In the present case we have no evidence of the accomplishments of the two daughters. However we must take note that unlike the United Kingdom and many other European countries, Malaysia is not a welfare state. Whilst the married women's claim to a share of the matrimonial assets is now entrenched in our laws, the rights of the dependent young persons in these assets is yet to receive proper articulation. Kulasingam v. Rosammah [1981] 2 MLJ 36 was not cited to us, but that 20 year old daughter was claiming under the Married Women and Children (Maintenance) Ordinance 1950. Notwithstanding the definition of disability, under s. 17 of the English Children's Act 1989 (also not cited to us but see Bromley Family Law 8th Edn., p. 643) we are inclined to the view that in appropriate cases involuntary financial dependence is a physical disability under s. 95 of the Act . There are far reaching social implications here and we would prefer to say no more now as to whether English attitudes are suitable to Malaysian conditions in such a case or its corollary which is the duty to aged and dependent parents by their progeny."


2. PUNITHAMBIGAI PONIAH V. KARUNAIRAJAH RASIAH (High Court) 15 OCTOBER 1999
High Court followed the decision in Ching Seng Woah (Court of Appeal).

3. Court of Appeal reaffirmed the decision of High Court.

4. KARUNAIRAJAH RASIAH V. PUNITHAMBIGAI PONIAH
FEDERAL COURT, KUALA LUMPUR
ABDUL HAMID MOHAMAD FCJ, MOHD NOOR AHMAD FCJ, PAJAN SINGH GILL FCJ
9 APRIL 2004 [2004] 2 CLJ 365

FC over-ruled the judgement of the court below.

The Federal Court distinguished the case of Ching Seng Woah on the ground that in that case, the husband agreed in his evidence in chief to pay maintenance to his daughters until they received their first degree. The ratio decendendi is that a person could not be permitted to reprobate what he had approbated.

The FC also strictly interepreted the word "disability" in s. 95 of the 1976 Act covers only "physical" and "mental" disability. It did not cover financial dependence. According to FC, there is no legal basis for interpreting the exceptions in s. 95 to include financial dependence for the purpose of pursuing tertiary education after the child attains the age of 18.

FC also made an observation that The Islamic Family Law (Federal Territories) Act 1984 is more advanced than its civil counterpart. Section 79 of 1984 Act specifically provides that the court is empowered to make a maintenance order beyond the child's age of 18 "to cover such further period as it thinks reasonable, to enable the child to pursue further or higher education or training".