Suit No : MS 4546/2002, DA 2/2003 Decision Date : 08 Apr 2003 Court : District Court Coram : Laura Lau Chin Yui Counsel : B Uthayachanran for the Complainant, Vijay Kumar Rai for the Respondent
1 The Complainant, Kalutara Archarige Dharshani Chrishanthi Herbert (“Ms Kalutara”) is a Sri Lankan. She is presently a Singapore permanent resident. She married the Respondent, P L B Sarath Manukularatne (“Mr Sarath”) in Colombo, Sri Lanka, on 15 August 2001. After the marriage, the parties returned to Singapore on 19 August 2001. They resided with Mr Sarath’s parents at No 36 Jalan Taman, Singapore. Owing to unhappy differences, the parties had ceased to live together since 27 July 2002. There are no children to the marriage.
2 On 3 August 2002, Ms Kalutara lodged a complaint in Maintenance Summons No 4546 of 2002, alleging that Mr Sarath had failed to maintain her since January 2002. On the same day, she lodged another complaint in Summons No 1826 of 2002 seeking a personal protection order against Mr Sarath. At the hearing on 29 November 2002, Ms Kalutara was granted leave to withdraw her summons for a personal protection order. The maintenance summons proceeded for a full trial at the end of which I made an order requiring Mr Sarath to pay Ms Kalutara maintenance of $400 per month on the 1st day of every calendar month with effect from 1 December 2002. Mr Sarath was further ordered to pay costs fixed at $1,000 to the Director of Legal Aid. In this connection, Ms Kalutara was represented at the trial by Mr B Uthayachanran, to whom the Legal Aid Bureau had assigned her case. Mr Sarath has appealed against the orders made in the maintenance summons.
The positions taken by the parties
3 In her complaint and in her affidavit filed in the maintenance summons, Ms Kalutara claimed maintenance of $2,000 per month for herself. She reduced her claim to $800 per month at the trial. Mr Sarath’s contention, in short, was that Ms Kalutara was financially capable of supporting herself and that she did not have needs which could not be met by the income she was capable of earning. Accordingly, he made no offer of maintenance throughout the trial.
Analysis of the evidence
4 After her arrival in Singapore, Ms Kalutara lived with Mr Sarath, his parents and his 2 brothers in the property known as No 36, Jalan Taman, Singapore (“the house”). Mr Sarath’s mother claimed that she was the owner of the house which she had apparently, inherited from her mother. On 27 July 2002, Ms Kalutara left the house and has since been staying in rented accommodation. The reason for Ms Kalutara’s departure from the house is the subject of her application for a personal protection order which Mr Sarath had contested. Mr Sarath vehemently denied the allegations of family violence and both parties have proffered different versions for Ms Kalutara’s departure. In view of Ms Kalutara’s withdrawal of her summons for a personal protection order, the court was not required to adjudicate upon the summons. Accordingly, no finding was made on the conduct of the parties. Apart from Mr Sarath’s failure to maintain Ms Kalutara, the conduct of the parties during the marriage was not raised at the hearing of the maintenance summons. There being conflicting versions as regards the parties’ conduct which are as yet unresolved, it would suffice to state for the purpose of the maintenance summons that the parties had ceased to live together since 27 July 2002 by reason of unhappy differences.
5 Ms Kalutara is 32 years old. She has not been employed since her arrival in Singapore on 19 August 2001. She said that she had completed her GCE ‘O’ level education in Sri Lanka. As regards Mr Sarath’s allegation that she “has completed her education till the level of polytechnic”, Ms Kalutara clarified at the trial that she had studied typewriting and English at the polytechnic and that she was issued a certificate, not a diploma, by the polytechnic. She had worked in Sri Lanka as a secretary for about 6 years, a fact that was confirmed by Mr Sarath. After she arrived in Singapore, Ms Kalutara attended 3 short courses on information technology at Sinda and NTUC. She is able to use and operate the computer. For 8 months from January to August 2002, she attended a private secretaries diploma course for which she sat for the examinations in some modules leading to a LCCI/CIE certificate. Ms Kalutara claimed that she did not know whether she had passed the examination as the results were sent to the house and she is no longer living there.
6 From the evidence, Ms Kalutara is not without marketable skills and working experience. Her knowledge and skills in information technology, past secretarial experience and possibly, her recent secretarial qualifications (depending on whether she has passed the examinations) are assets she can count on in securing a secretarial or clerical position. Further, Ms Kalutara is fairly proficient in the English language as she had testified in English at the trial with no problems. Hence, whilst she claims to be unemployed, her earning capacity, as evidenced by her skills and working experience, must be taken into consideration by the court when ordering maintenance (applying section 69(4)(b) of the Women’s Charter).
7 On further examining the facts, I cannot exclude the possibility that Ms Kalutara’s current unemployed status could well have been self-induced. The fact that she did not even bother to find out the results of her LCCI/CIE examination from her instructors or the examining authority is indicative of her lack of interest in securing a job commensurate with her skills and experience. Although she asserts that she “tried so many times to get a job”, Ms Kalutara has adduced no evidence of her efforts since 27 July 2002. She has not produced any letters of application, rejection letters, job advertisements, newspaper cuttings of jobs that she had applied for or evidence of her alleged registration with “Internet”, a job-matching agency. She admitted that she had not registered with the Ministry of Manpower’s job placement service. If in fact Ms Kalutara had tried hard to get a job to no avail, it is inexplicable that she has nothing to show for all her efforts. In view of the glaring lack of evidence, it would not be unreasonable to infer that Ms Kalutara had made little or no effort to secure a job following her departure from the house.
8 Ms Kalutara’s nonchalance towards employment is further borne out by her rejection of a job offered to her by C K Tang Departmental Store (“C K Tang”) prior to her departure from the house on 27 July 2002. Ms Kalutara says that she was offered the position of cashier at C K Tang sometime in mid-July 2002. Ms Ng Yen Ping, human resource executive of C K Tang (“Ms Ng”) testified that cashiers with ‘O’ level qualifications and “without experience” are paid a monthly salary of $855 whilst those “with experience” may be paid more on recruitment. In addition to monthly salary, cashiers are paid for overtime work “on a case to case basis”. C K Tang would issue a letter of appointment only upon the cashier reporting for work and in this case, no letter of appointment was issued to Ms Kalutara. Given that Ms Kalutara would have been paid at least $855 per month and possibly more, depending on experience and eligibility for overtime payments, Ms Kalutara’s evidence that the “highest salary” offered by C K Tang was only $800 per month cannot be true. Accordingly, I find it hard to believe Ms Kalutara’s evidence that she had declined the offer because her father-in-law had prevented her from taking the job as he felt that the salary of $800 was too low. Be that as it may, Ms Kalutara made no attempt to find out if the job was still available after 27 July 2002. Her explanation that she had “no time” because of the pending maintenance and personal protection summonses is but a flimsy excuse as she was only required to work a 5-day week at C K Tang. Even if her father-in-law had forbid her from accepting the job (which I doubt he had), Ms Kalutara might have been gainfully employed at the time of trial had she returned to C K Tang after 27 July 2002. In this connection, Ms Ng had told the court that C K Tang had 2 vacancies for cashiers as of 29 November 2002 (the date of trial).
9 Apart from the offer made by C K Tang, Ms Kalutara was offered the position of computer sales coordinator by Microtec Private Limited (“Microtec”) which Mr Sarath again contended, Ms Kalutara had no reason to refuse. Ms Kalutara explained that she did not respond to Microtec’s offer because she had not applied for the job and had not gone for any interviews with Microtec. She also believed that the job involved sales work which she was not suited for and she was concerned that her services could be terminated within 24 hours, as stated in Microtec’s letter. In my opinion, Ms Kalutara’s belief that this offer may not be a genuine offer is not unfounded and accordingly, I do not propose to place much weight on the offer for the purpose of assessing the quantum of maintenance. I will explain. Goh Poh Joo, one of the directors of Microtec (“Mdm Goh”) is a friend of Mr Sarath’s father. According to Mdm Goh, Mr Sarath’s father had approached her to ask if Microtec could offer Ms Kalutara a job. Mdm Goh’s evidence shows that the position was offered to Ms Kalutara solely on the basis of her curriculum vitae which was provided not by Ms Kalutara herself but by Mr Sarath’s father. Microtec was prepared to pay Ms Kalutara a salary of $1,200 per month without first conducting an interview to assess her abilities, aptitude and suitability for the position. On her part, Ms Kalutara received an offer out of the blue. She knew nothing about Microtec, she was not apprised of the nature of the job, her duties and the business of the company before the offer was made. At trial, Mdm Goh’s description of Ms Kalutara’s intended role in Microtec was vague – she could only say that Ms Kalutara was “to help out in the office and the computer business”. It is noted that Microtec’s main business activities which involve the supply of ATM machines to banks overseas, are concentrated overseas. Mdm Goh stated that Microtec has only 2 employees in Singapore, one of whom is her niece who manages the day to day running of the company and the other is a delivery man. The company has only had 2 employees since it was incorporated about 5 years ago. As it was Mr Sarath’s father who approached Mdm Goh to seek a job for Ms Kalutara and not Mdm Goh who approached Mr Sarath’s father with a vacancy to be filled and taking into account the extraordinary manner in which the offer was made and the business and employment history of the company, I am of the view that the offer was deliberately created and that Microtec did not have a genuine need for an additional employee. The timing of the offer is also significant – the offer was made on 9 September 2002 after it became apparent that the maintenance summons was proceeding for trial. There is no evidence that Mr Sarath or his parents had tried to secure a job for Ms Kalutara during the 11 months that she was living with them, yet Mr Sarath’s father had deemed it necessary to assist Ms Kalutara (without her consent) after she ceased to live with them. To my mind, the offer was probably made for the purpose of bolstering Mr Sarath’s defence to Ms Kalutara’s claim. Given the obvious acrimony between the parties, Ms Kalutara’s suspicion and wariness is a natural reaction and I do not think it would be fair to fault Ms Kalutara for not responding to the offer. In fact, I doubt if Mr Sarath, his parents and Mdm Goh had seriously expected Ms Kalutara to accept the offer and even if she did, there are termination clauses set out prominently in the letter of offer.
10 From the evidence, I am satisfied that Ms Kalutara is capable of commanding a salary of $800 to $900 per month and possibly more. Whilst I accept that she may take more time to secure suitable employment, being a foreigner and having no knowledge of the Chinese language, the lack of effort on her part is inexcusable.
11 As for Ms Kalutara’s financial needs, she has estimated her total monthly expenses at $2,000. Her rental is an astronomical $900 per month. Apart from the fact that the sum allegedly incurred is unsubstantiated, she has given no satisfactory reason as to why she needs to use and occupy an entire 4-room HDB flat (save for one bedroom) which costs $900 per month in rental. Her explanation that she needs her privacy and wants to be alone is implausible as she is currently sharing her rented flat with 2 other ladies who in return, share their food with her. I am prepared to allow Ms Kalutara the cost of renting a room in a HDB flat which would be about $300 to $400 per month. As a tenant, Ms Kalutara would have exclusive possession of the room and hence, her privacy. She conceded that the rental for a room in a flat would include utilities. During cross-examination, Ms Kalutara stated that she presently incurs $150 to $200 on food every month which, I note, is a significant reduction from the $450 stated in her list of expenses. She agreed with Mr Rai, counsel for Mr Sarath, that $240 per month would be sufficient for her food expenses if she were gainfully employed. Her transport expenses of $150 per month would be considered reasonable only if she has to commute to and from work It is hard to justify such an expense while she remains unemployed. In my view, there is no requirement for new clothes at a cost of $150 every month even if Ms Kalutara is working and even less reason to incur this sum if she is not. In this connection, Ms Kalutara had arrived in Singapore with a trousseau of clothes and as a secretary in Sri Lanka, she already had office attire which could be shipped to Singapore. As for her medical expenses, the figure of $100 per month is clearly overstated in the absence of any medical condition which requires long-term treatment. Ms Kalutara has produced no receipts to substantiate her alleged medical expenses and could not even recall the last time she saw a doctor. I would not consider the telephone charges of $50 per month unreasonable in the light of Ms Kalutara’s evidence that she telephones her parents in Sri Lanka about 5 to 6 times a month in addition to her local calls. Finally, her miscellaneous expenses of $100 are in my view not excessive as these would include her haircut, toiletries, detergents, household items, appliances and outings. By computing her monthly expenses at $2,000 per month, Ms Kalutara in my view, grossly exaggerated her financial needs. From my reckoning, Ms Kalutara’s reasonable expenses would be in the region of $800 to $900 per month whilst she remains unemployed and $1,000 to $1,100 per month after she obtains gainful employment.
12 Although the husband’s income and property are not expressly listed amongst the factors which the court should take into consideration under section 69(3) of the Women’s Charter when ordering maintenance for a wife, the husband’s earnings and assets are in my view, important matters which the court cannot disregard. In this connection, the wordings in section 69(3) which read, “shall have regard to all the circumstances of the case including…”indicate clearly that the factors expressly listed are not exhaustive. Hence, I had taken into account Mr Sarath’s income and property in determining the amount of maintenance to be awarded to Ms Kalutara. Mr Sarath, aged 39, is an aircraft engineer employed by Singapore Airlines. His gross monthly salary, inclusive of allowances, is $6,527 and net salary after CPF deduction, is $5,300 per month. He claimed that annual increments and annual bonuses are “frozen”, meaning “zero bonus” but has produced no verification from his employers.
13 It is Mr Sarath’s evidence that his personal, car and household expenses including monies given to his parents, amount to $5,378 per month. As his expenses exceed his net income, there is a deficit of $78 per month. I am of the opinion that this deficit is artificial and that even if the expenses are not exaggerated but are actually incurred, these can be trimmed down. It is noted that from his net salary of $5,300, Mr Sarath gives his parents with whom he is residing, $1,500 every month for household expenses and maid’s salary. In addition, he pays the SCV charges and Max on-line subscription of $140 per month for the house. The household expenses alone take up 30% of his net salary. Although Mr Sarath’s mother is now retired, his father has been re-employed as a part-time business manager after retirement and is currently drawing a salary of $3,100 per month. During cross-examination, Mr Sarath’s father candidly admitted that he is able to bear the cost of the maid as well as his own expenses on his own salary. Mr Sarath has 2 siblings who are also contributing to the household, albeit at a much lesser sum of $400 per month. Since by his own admission, Mr Sarath’s father is self-sufficient, his parents do not need his contribution of $1,500 every month and they should be able to run the household on a significantly lower contribution from him.
14 Mr Sarath purchased a new car, a Honda Civic, on 12 June 2002 which is less than 2 months before Ms Kalutara applied to the Family Court for maintenance. The purchase price was $108,920 for which he paid a deposit of $68,920. Mr Sarath’s ability to pay $68,920 indicates that he probably has some savings, the particulars of which he has not disclosed to the court. He presently incurs a hefty $1,143 per month on hire-purchase instalments for the car. With the costs of car maintenance, petrol, parking and insurance, Mr Sarath claims that he spends $1,800 per month on his car alone. I accept that Mr Sarath probably needs a car for his work in view of his explanation that he could be recalled at any time to attend to aircraft emergencies. As he put it, “imagine passengers stuck in an aircraft about to depart and needing immediate assistance to get the aircraft going. You have to be there to solve the problem”. What is questionable is the need to change his car in June 2002. Mr Sarath’s old car had been fully paid up. There is nothing to support Mr Sarath’s assertion that the old car “was starting to give a lot of problems” and that the “potential repair costs were very high”. The old car, also a Honda Civic was probably only 5 to 6 years old and from the car maintenance invoices, had probably chalked up a fairly low mileage of about 20,000 kilometres when it was disposed of. I note that the old car was serviced regularly and there is no evidence as to what problems the car was giving. If the old car had proved unreliable in quality and performance, Mr Sarath would not have purchased yet another car of the same make and model. In the circumstances, there is reason to believe that Mr Sarath’s purchase of the new car was calculated to tie up his finances so that he could, at least to some extent, avoid payment of maintenance for Ms Kalutara. As of June 2002, when Mr Sarath purchased his new car, he would have known that his marriage was not working and as he was not providing Ms Kalutara with maintenance, this application could not have been unexpected or unforeseen.
15 As for Mr Sarath’s personal expenses, the sums of $100 and $250 which he allegedly incurs for clothing and telephone charges every month respectively, are in my view, excessive. The same argument pertaining to Ms Kalutara’s clothing expenses would apply equally to Mr Sarath: having worked for many years, Mr Sarath would already have office and work attire. Mr Sarath had unreasonably taken objection to Ms Kalutara’s monthly telephone charges of $50 whilst his own are clearly exorbitant. He has provided no explanation to justify the expense of $250 per month. In view of Mr Sarath’s clarification that the legal fees he is incurring at $500 per month relate to the maintenance and family violence proceedings, it is envisaged that these payments would cease in the near future with the conclusion of these proceedings.
16 Apart from the car, Mr Sarath’s other major asset is a freehold property at Block 27, Diary Farm Estate #01-05, Singapore. The property was purchased in 1990 and has an estimated market value of $800,000. There is an outstanding loan of $350,000. He is paying the mortgage instalments of $2,111 per month through his CPF account. The property is rented out for which he receives rental income of $2,500 per month. Mr Sarath states that the expenditure on the property amounting to $3,167 per month inclusive of the mortgage instalment, maintenance fee, property tax, repairs and replacements plus miscellaneous expenses exceeds the rental income of $2,500 and there is a recurring deficit of $667 every month. Mr Sarath had clearly been untruthful when he stated that he incurs $400 per month on repairs and replacements and miscellaneous expenses as the invoices he has produced show that for the whole of year 2002, he had spent only $378.04 on these items. Hence, the deficit is not $667, but only about $300 per month and even so, it is not an “out of pocket” loss in that the mortgage instalment of $2,111 is paid from Mr Sarath’s CPF monies.
17 Mr Sarath is a professional and even if bonuses are excluded from the computation (in view of Mr Sarath’s assertion, albeit unsubstantiated, that Singapore Airlines have “frozen” his bonuses), he earns a reasonably good income. From my assessment of the evidence, he has exaggerated or incurred unnecessarily high payments in some aspects of his expenditure. The new car is a doubtful expense, given that apart from his bare assertions, there is no evidence to show that he could not continue using his old car. With some adjustments to his expenses, Mr Sarath would have more than sufficient money to provide reasonable maintenance for Ms Kalutara.
The quantum of maintenance
18 Section 69(3) of the Women’s Charter provides that the duration of the marriage is a relevant factor to be considered when ordering maintenance for a wife. In Sengol v De Witt  1 SLR 323 , the husband and the wife began to live apart 9 months after their marriage. The wife, a police constable, sought maintenance from the husband, a flight steward. The wife’s gross salary was $998.98 per month, and the husband’s, $2,173 per month inclusive of meal allowances. In his judgment, Chan Sek Keong J C (as he then was) applied the principle stated by Balcombe J in Hayes v Hayes (1981) 11 Fam Law 208 as follows:
“Where there was a very short marriage between two young persons, neither of whom had been adversely affected financially by the consequences of the marriage and each was fully capable of earning his or her own living, the approach which the court should adopt was to allow for a short period of periodical payments to allow the party who was in the weaker financial position (usually the wife) to adjust herself to her situation and thereafter to achieve a ‘clean break’ facilitated if necessary by a small lump sum.”
Chan J C considered the loss of the wife’s CPF savings amounting to $7,241.50 arising from the surrender of the matrimonial flat to the HDB to be relevant in determining the wife’s entitlement to maintenance and the amount thereof. The husband was ordered to pay the wife $300 per month for a period of 2 years.
19 The principle distilled from Sengol v De Witt is that in short, childless marriages where the wife is capable of earning her own living, the court would usually made an award of nominal maintenance for a specified period to enable the wife to adjust to her situation and to achieve a clean break thereafter. In the present case, Mr Rai argued however, that nominal maintenance includes a case of no maintenance. He relied on Tham Khai Meng v Nam Wen Jet Bernadette  2 SLR 27 where the Court of Appeal, having considered the wife’s earning capacity, property and other financial resources ordered no maintenance, either by way of periodic of lump sum payment, for the wife. Mr Rai pointed out that the court awarded the wife no maintenance notwithstanding that the marriage had lasted 8 years and the parties had 2 children. I am of the view that Tham Khai Meng’s case can be distinguished from the present case on the facts. Although the wife in Tham Khai Meng’s case was then unemployed, the court was of the view that she could easily find employment. She had tertiary education and her family was not without connections. The Court of Appeal had expressly stated that in making no order for maintenance, the Court had taken into account what she was awarded by way of division of the matrimonial home i.e. that the husband was ordered to transfer to the wife the matrimonial home which was valued at $6.5 million for the sum of $1 million to be paid by the wife to him, Ms Kalutara obviously, does not possess the financial advantages which the wife in Tham Khai Meng had. There is no question of division of matrimonial property in the present case, let alone a division which leaned substantially in the wife’s favour. Nowhere in Tham Khai Meng’s case did the Court of Appeal suggest that nominal maintenance is synonymous with, or includes, no maintenance. To my mind, the terms “nominal maintenance” and “no maintenance” should be given their literal meaning. Hence, nominal maintenance refers to the payment of a small sum and no maintenance would mean that nothing at all is payable.
20 Mr Rai further contended that Ms Kalutara’s application for maintenance was motivated by greed or avarice and not from any real need for maintenance. I do not think Mr Rai’s submission is borne out by the evidence. In this connection, Mr Sarath’s maid testified that Ms Kalutara had confided in her as to the property her father owned in Sri Lanka and his financial commitments arising from the construction of this property. But even if Ms Kalutara’s father was indebted to the bank in Sri Lanka for a loan he had taken to construct the building, it is not the evidence of Mr Sarath’s maid that he could not afford to repay 40,000 rupees per month to the bank as required. The maid stated that she was informed by Ms Kalutara that the loan repayments were made from monies her father earned in business dealings which he had with her former boss and one other person. In the premises, Mr Sarath has not proved that Ms Kalutara had sought maintenance to enable her father to pay off her father’s financial commitments.
21 I am mindful that this is a short, childless marriage. The parties started to live separate and apart 11 months after their marriage. Ms Kalutara came to Singapore only because she had married Mr Sarath. The marriage has not worked out. Although Ms Kalutara may face some obstacles in seeking employment as she is a foreigner without professional qualifications, she has earning capacity and would be capable of sustaining herself to a considerable extent. On the authority of Sengol v De Witt, it would be appropriate to make an order for nominal maintenance. What is nominal must, in my view, be determined in accordance with Mr Sarath’s income and financial commitments. A nominal sum for a wife whose husband earns a very substantial income cannot be the same as a nominal sum for a wife whose husband earns only a few hundred dollars a month. Taking all the circumstances into account, I awarded Ms Kalutara maintenance of $400 per month which, being less than 8% of Mr Sarath’s net monthly salary, is in my view, a nominal sum. As the marriage has not been dissolved, I was not inclined to cap the maintenance payments to a specified duration. The court would probably limit maintenance to a specific duration upon divorce so that the parties can eventually achieve a clean break.
22 On the question of costs, I was of the view that Mr Sarath had acted unreasonably and in total disregard of his obligations to maintain his wife when he refused to make any offer of maintenance throughout the trial. The trial lasted 1.5 days. As Ms Kalutara had proved her entitlement to maintenance, albeit that the order made fell short of the amount she was seeking, I awarded her solicitors, the Director of Legal Aid, the costs of the proceedings fixed at $1,000.
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