KAYYUMPARAMB UMMER FAROOQUE Vs. PEREDATH NASEEMA

JUDGEMENT

(1.) R.P.(FC).No. 49 of 2005 arises out of M.C.No. 561 of 2003 filed by the respondent herein under Section 125 of the Code of Criminal Procedure for maintenance and Mat. A.No. 76 of 2005 arises out of O.P.No. 191 of 2004. for arrears of maintenance filed by the respondent wife. In the claim for maintenance under Section 125 of the Code of Criminal Procedure, the appellant contended that there was already a divorce effected by the pronouncement of talaq on 23-7-1999 and the divorced wife was not entitled for claiming maintenance. Arrears of maintenance was claimed for the period from 29-10-2000 to 28-10-2003. The claim was opposed on the ground that there was already a divorce in 1999 and the respondent is not entitled to claim any maintenance. At the time of argument of the O.P. before the Family Court, a contention was also raised that the respondent was not entitled to claim arrears of maintenance unless she pleaded and proved that she belonged to Shafi sect. This contention was negatived by the Family Court and arrears of maintenance was ordered as prayed for. The Family Court also ordered for payment of maintenance at the rate of Rs. 1,500/- p.m. from the date of petition and arrears of maintenance for three years at the rate of Rs. 1,000/- p.m.

(2.) In the appeal and revision, the learned Counsel appearing for the appellant and revision petitioner mainly contended that the parties are presumed to be Hanafis and the wife is not entitled to claim arrears of maintenance. He also contended that when there is a pronouncement of talaq and divorce is effected, a divorced Muslim wife cannot claim maintenance and therefore the Family Court has gone wrong in allowing the application filled by the respondent wife. In the light of the above contentions, the points for consideration are (1) whether the Family Court was justified in law in awarding arrears of maintenance to the respondent wife, and (2) whether there was a divorce as contended by the appellant and whether the respondent is disentitled to file an application under Section 125 of the Code of Criminal Procedure before the Family Court.

(3.) The learned Counsel for the appellant strongly relied on the decision of Madhavan Nair, J., in Naha Haji v. Karikutty , 1966 KLT 445. In that case, there is an observation that the generality of Mappilas in South Malabar are Shafis; but, it cannot be said that every Mappila in South Malabar is a Shafi. The presumption can only he that an Indian Muslim is a Sunni of the Hanafi sect. Whenever deviation from the Hanafi law is sought to be relied on in a case, it has to be pleaded and proved as a fact. These observations are in the nature of obiter dictum as the learned Judge has himself observed that it was unnecessary in that case to decide whether the parties concerned are Shafts or Hanafis; for, even if they were Shafis, there would not have been any difference in the result of the case. The learned Judge was deciding the question whether a gift by the father to a daughter had come into effect and could be revoked by the father. It was observed that even if parties are Shafis the gift in the circumstances of the case had become operative. No doubt, Justice Madhavan Nair has noted that in Katheesa Umma v. Narayanath Kunhamu, , a case from North Malabar, the parties are seen treated as Hanafis by the Supreme Court. But on going through the decision of the Supreme Court, there was no question raised as to which sect the parties belonged to and there was no decision on that aspect at all. Though there was a passing observation that the parties are Hanafis, the Supreme Court has not laid down any law about the general presumption and the necessity for pleading and proving in all cases if a claim is made for past maintenance that the parties belonged to Shafi sect.