CHERUMMEL ABDULLA Vs. POOVVALORA 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 Ist 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 denies 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. 40.00 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 P. W. 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 Mohemmadan Law: