ABDULLA Vs. KATHEESA

JUDGEMENT

(1.) THE only question for decision in this second appeal is as to whether a Mohammedan Wife is entitled to past maintenance from her husband. THEre is no dispute that the 1st plaintiff is the wife and the 2nd plaintiff is the son of the defendant. THEre is also no dispute in this second appeal regarding the defendant's liability for past maintenance to the 2nd plaintiff. THE defendant denied his liability for past maintenance to the wife on the ground that she had no satisfactory reasons for separate residence and also for the reason that under Mohammedan Law a wife is not entitled to claim past maintenance. THE trial court held that the 1st plaintiff had no justification for separate residence and a decree was granted for past maintenance to the 2nd plaintiff alone at the rate of Rs. 40/-per mensem. THE plaintiffs appealed against the decree of the trial court declining past maintenance to the 1st plaintiff. THEre was an appeal also by the defendant against the award of past maintenance to the 2nd plaintiff. THE lower appellate court believing the evidence of pw. 1, the 1st plaintiff, found that she had justifiable reasons for separate residence and hence past maintenance cannot be denied to her for the reason mentioned by the trial court. This finding of fact based on the evidence in the case cannot be interfered with in Second Appeal.

(2.) THE only other question is whether in Mohammedan Law a wife is entitled to a decree for past maintenance against the husband. Both the courts below have concurrently found that the parties to the suit belong to the shafie sect among Sunni Muslims. Learned Counsel for the appellant relies on the following passage at page 443 of Baillie's Digest of Mohammedan Law: "when a woman owes her husband for maintenance for a time antecedent to any order of the judge, or mutual agreement of the parties, the judge is not to decree maintenance for the past. " He relies also on the decision in Mt. Ismabai v. Umar Mahomad Sidik (AIR. 1930 Sind 11) in support of his proposition that a mohammedan wife is not entitled to past maintenance except on the basis of an order of court or on agreement between the parties. THE Judicial Commissioner after finding that the wife had no justifiable reasons to claim future maintenance, stated thus at page 12: "i would, however, give her past maintenance for some of the time that she has spent in her father's house, but I am notable to do so. THE Mohammedan Law on the point has been declared in the case Abdul fateh Moulavie v. Zebunessa Khatum ( (1881) 6 Cal. 631) that arrears of maintenance cannot be decreed. Mr. Tyabji queries this ruling but it is quoted without comment by mr. Wilson, and I must follow it". In Mulla's Mohammedan Law, 18th Edn. at page 300, S. 278 it is stated as follows: "278. Order for maintenance. If the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on a specific agreement. Or, she may apply for an order of maintenance under the provisions of the Code of Criminal Procedure, 1908, s. 488, in which case the Court may order the husband to make a monthly allowance in the whole for her maintenance not exceeding five hundred rupees. " It is further stated at page 301: "according to the Shafie school, the wife is entitled to past maintenance though there may be no agreement in respect thereof". In the decision of the Madras High Court in Mohammed Haji v. Kalimabi (ILR. 41 Mad. 211) a Division Bench consisting of Abdul Rahim and srinivasa Ayyangar JJ. , held as follows: "that in the Shafi Law which governs the parties to this case the wife is entitled to recover arrears of maintenance, though not due under a decree of Court or a mutual agreement, contrary to the Hanafi Law, admits of no doubt. For according to the theory of the former system, maintenance is a debt and not in the nature of a gratuity as is the doctrine of Hanafi lawyers. " THE Madras decision quotes the following passage of Hedaya (Hamilton Vol. I page 398) as the rule of Hanafi Law on the subject. " If a length of time should elapse during which the wife has not received any maintenance from her husband, she is not entitled to demand any for that time except when the Kazee had before determined or decreed it to her". But a different rule applies to the Shafi as quoted in the same judgment. "shafi says that the maintenance is in all circumstances to be considered as a debt upon the husband in conformity with his tenet that it is not a gratuity but a return, wherefore it cannot drop like demands of the former description". THE learned judges refer also to Tahfatal Mierhaj as an authoritative commentary on the Mirhaj by Shahabuddin Ahmad Ibu Hayanul Hailini who flourished in the sixteenth century, in the English translation of which there is a statement that maintenance is a debt on the husband "even if it was not decreed by the Kazee". In Tyabji, 3rd Edition on Muhammedan Law, page 324 Para. 307 it is stated as follows: "307. (1) Under Shia and Shafi law the wife is entitled to maintenance notwithstanding that she has allowed it to get into arrears without having had the amount fixed by the Court, or by agreement with the husband. (2) Under Hanafi law arrears of maintenance are cot recoverable unless fixed by the court or by agreement between the husband and wife; nor even after they have been so fixed, in case of divorce or death of either party; provided that arrears may be recovered if the Court has decreed maintenance, but not fixed its amount". From these authorities on Mohammedan Law, it is fairly clear that a Shafie wife is entitled to recover arrears of maintenance from her husband. No other question arises in this Second Appeal. THE second Appeal fails and is dismissed. THEre will be no order as to costs. Dismissed. . .