MOOSA SEETHI Vs. MARIYAKUTTY

JUDGEMENT

(1.) This second appeal arises out of a suit by a divorced Muhammadan wife against her former husband for recovery of past maintenance, expenses of the delivery, mahr and return of dowry. The only question that was argued at the time of hearing in this court was whether the decree given by the Trial Court and confirmed by the lower appellate court for past maintenance is sustainable.

(2.) According to the plaint allegations the plaintiff has one child by her husband, the 1st defendant. She went to her father's house for her second delivery and the second child died some time after its birth. While the plaintiff was living in her father's house after the second delivery the 1st defendant divorced her on 11.5.1123. Past maintenance was claimed in the plaint for the plaintiff and her first child from Makaram 1122 to 11.5.1123 at the rate of Rs. 25 per month. The 1st defendant contended that he was not liable to pay past maintenance at all. The Trial Court allowed past maintenance at the rate of Rs. 15 per month, Rs. 5 being for the child and Rs. 10 being for the plaintiff. The lower appellate court also confirmed that award. The first defendant has therefore filed this second appeal. In the second appeal the only item objected to is the past maintenance and no objection has been taken to the other amounts decreed to the plaintiff.

(3.) The contention in this court was that under the Muhammadan Law a wife is not entitled to get a decree for past maintenance. This question was argued in the lower appellate court also. That court held that, as under the Shafi Law a wife is entitled to get a decree for arrears of maintenance and as there is no evidence in this case to show whether the parties are governed by the Shafi Law or the Hanafi Law the decree passed by the Trial Court could not be interfered with.