Sunday, June 15, 2008

Why let a child suffer sins of adults?

"I didn't marry you because you were perfect.
I didn't even marry you because I loved you.
I married you because you gave me a promise.
That promise made up for your faults.
And the promise I gave you made up for mine.
Two imperfect people got married and it was the promise that made the marriage.
And when our children were growing up, it wasn't a house that protected them; and it wasn't our love that protected them - it was that promise."
Thornton Niven Wilder (1897-1975)
American playwright and novelist

INDEED, the institution of marriage is the preservation and fulfilment of that promise. Sadly, once that promise is breached and the marriage is dissolved, more often than not, the children will become the pawns and casualties of the breakdown.

Therefore, every state will have laws to deal with marriage and divorce. Here, we have the Law Reform (Marriage and Divorce) Act 1976, which is also numbered as Act 164 in our statute books ("the act"). To the superstitious Cantonese-speaking readers, it is hardly auspicious to number the act "164" as it means "to die all the way!"

The act applies to all non-Muslims in this country except any native of Sabah or Sarawak and aborigine of Peninsular Malaysia whose marriage and divorce is governed by native customary law or aboriginal custom unless he elects to marry under the act or he has contracted his marriage under the Christian Marriage Ordinance of Sabah or the Church and Civil Marriage Ordinance of Sarawak.

Currently, pursuant to Section 95 of the act, a non-Muslim parent's obligation to provide for a child financially expires when the child attains the age of 18, or where the child is under physical or mental disability, on the ceasing of such disability, whichever is the later.

In 2004, the Federal Court ruled in Karunairajah Rasiah v Punithambigai Poniah that the word "disability" in section 95 only covers "physical" and "mental" disability and does not cover financial dependence.

Federal Court judges Datuk (now Tun) Abdul Hamid Mohamad, Datuk Mohd Noor Ahmad and Datuk Pajan Singh Gill held that there was no legal basis to interpret the exceptions to Section 95 to include voluntary financial dependence for the purpose of pursuing tertiary and/or vocational education after the child had attained the age of 18.

The Federal Court, therefore, overruled the Court of Appeal which had attempted in that case, and in an earlier case of Ching Seng Woah v Lim Shook Lin 1997, to use creative interpretation to equate financial dependence to "disability".

In Ching Seng Woah, the Court of Appeal held that a child's inability to fend for himself on the job market without completing tertiary education amounted to involuntary financial dependence which could constitute "physical disability" under Section 95.

In Karunairajah Rasiah, Dr Punithambigai filed a divorce petition at the High Court against Dr Karunairajah in 1994. The latter was then ordered by the High Court to pay maintenance of RM4,200 a month to his three children who were all below 18 at that time.

In May 1998, Dr Karunairajah stopped paying maintenance when one of the children turned 18. This led the mother to file an application to the High Court asking that maintenance for all three children be continued until they completed their tertiary education.

The High Court allowed the application which was later upheld by the Court of Appeal. The Court of Appeal ruled that involuntary financial dependence was not only "physical disability" but it was also tantamount to "mental disability" under section 95.

Delivering the Court of Appeal judgment, justice Datuk Abdul Kadir Sulaiman said: "We may even go a step further in saying that this involuntary financial dependence can also be taken as a mental disability under the section for the purpose of the child of the marriage pursuing his tertiary education in order to be better equipped in his future working life. It needs able body and mind to undergo a tertiary education... The pertinent question to ask is, if their marriage had not gone to the rocks, would the appellant have left his children to wander in the streets to fend for themselves upon their attaining the age of 18 years?

"Surely not. No sensible parents would have done that to their children... The future of the children's well-being would be his paramount consideration. It is our view, therefore, that it could not have been the intention of the legislator in incorporating the provisions of Section 95 into the act to make the children worse off in the event of the break-up of the marriage of their parents compared with children living together with their parents under the same roof."

However, in delivering the decision of the Federal Court, Abdul Hamid said: "A case has to be decided according to the law as it stands, irrespective of a judge's personal view on it and moral obligations can never take precedence over the law. What the law should be is a matter for the legislature."

I am saddened by this, not so much over the decision, but rather with the inaction and tardiness on the part of the authorities in not taking steps to remedy the situation since the 2004 Federal Court decision. I have also spoken up regarding this matter on several occasions but there does not appear to be any sense of urgency on the part of our legislators to redress this injustice caused to many children caught in this predicament.

Our laws must be progressive and keep up with the times. In this case, tertiary education might not appear to be a necessity in the 1970s when the act was first enacted, but times have changed and a child will now find it difficult to make it in life without having any tertiary education.

It is, therefore, a parent's responsibility to educate his children beyond 18 notwithstanding the fact that the act has defined a "child of marriage" to be a child who is below 18.

In fact, the age limit of 18 is inconsistent with other legal provisions which regard more accurately in practice the age of 21 as the age a minor is capable of assuming an adult's responsibilities even though the Age of Majority Act 1971 determines the age of majority at 18.

For example, Article 119 of the Federal Constitution provides that only a person who has attained the age of 21 is entitled to vote in a general election. Also, Section 12 of the act requires a person below 21 to seek his/her father's consent if he/she wants to marry. This shows a child below 21 is still a dependent of his parents.

Similarly, under Section 3 of the Guardianship of Infants Act 1961, for example, the guardian is responsible for the support, health and education of the child until he/she reaches 21. In this respect, Section 95 unfairly discriminates against children of divorced parents.

Further, our income tax legislation allows a taxpayer to continue to claim relief for his child beyond 18 years of age who is pursuing tertiary education. This indirectly acknowledges a parent's responsibility to maintain his children beyond the age of 18.

Interestingly, the syariah law is more advanced than the civil law in this respect. Section 79 of the Islamic Family Law (Federal Territory) Act 1984 (which has been adopted for application in other states) specifically provides that the Syariah Court may, on application by the child or any other person, extend the order for maintenance "to cover such further period beyond the child's age of 18 years old as it thinks reasonable to enable the child to pursue further or higher education or training."

In Singapore, Section 69(5) of the Women's Charter, which was amended in 1997 reads as follows:

"The court shall not make an order under subsection (2) for the benefit of a child who has attained the age of 21 years or for a period that extends beyond the day on which the child will attain that age unless the court is satisfied that the provision of the maintenance is necessary because:

(a) of a mental or physical disability of the child;

(b) the child is or will be serving full-time national service;

(c) the child is or will be or (if an order were made under subsection (2)) would be receiving instruction at an educational establishment or undergoing training for a trade, profession or vocation, whether or not while in gainful employment; or

(d) special circumstances, other than those stated in paragraphs (a), (b) and (c), exist which justify the making of the order."

All said, it is hoped that our legislature will step in as soon as possible to amend this antiquated provision in Section 95 to compel the obligation to pay maintenance for children beyond 18 if they are receiving education or training.

This makes good sense not only on humanitarian grounds, but also because it is fair and consistent with other jurisdictions. Otherwise, irresponsible parents can refuse to do so by seeking refuge behind the Federal Court's decision of Karunairajah.

It is indeed a sad thing that these children who are at the threshold of their education are denied a chance to realise their true talent and potential. This will not only cause them to sacrifice their future, but ultimately also a loss to us as a nation.

On this Fathers Day, I sincerely hope that parents of such children will reflect upon this and spare a thought for their children because children are never to be blamed when a marriage breaks down.

The children's interest must always be of paramount consideration, and it is inhuman to punish and dump them when they reach 18 all because the marriage between the adults fails to work out.

Having brought them to this world, we as parents do not only owe it to ourselves and our children but also to the creator in fulfilling our parental duties on this earth.

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