BEEPATHU AND ORS. Vs. KOVATH ABDUL AZEEZ

JUDGEMENT

(1.) This reference to the Full Bench is made on a matrimonial appeal filed by the wife and children of the respondent seeking past maintenance. The dispute in this appeal is only regarding the eligibility of the first petitioner/wife to claim past maintenance. The defence set up by the respondent in this regard is that the parties belong to Hanafi sect of Sunnis among Muslims and therefore, the wife is not entitled to past maintenance. When this appeal was heard by the Division Bench, the learned Judges noticed the decision of this Court in Amina v/s. Hassan Koya : 1985 KHC 135 : 1985 KLT 596 : ILR 1985 (2) Ker. 580 : 1985 KLN 429 : 1985 CriLJ 1996 which was relied on by the Family Court. But, the Division Bench opined that there is divergence of opinion as between the decisions of this Court as to the applicability of any general principle that the Muslims of Kerala are predominantly Hanafis. Reference was made to Moosa Seethi v/s. Mariyakutty : 1954 KHC 102 : : 1954 KLT 249 : : AIR 1954 TC 432 : : ILR 1954 TC 690, Abdulla Beary v/s. Alikunhi Beary : 1957 KHC 192 : 1957 KLT 849 : 1957 KLJ 731 : 1957 KLJ NOC 43 : 1957 KLT SN 135, Abdulla v/s. Katheesa : 1983 KHC 148 : 1983 KLT 672 : 1983 KLJ 543 : AIR 1984 Ker. 94 : 1983 KLN 438 and Abdul Karim v/s. Nabeesa : 1987 KHC 604 : 1987 (2) KLT 887 : ILR 1988 (2) Ker. 29 : AIR 1988 Ker. 258 : 1988 (24) Re.. In contra distinction to Amina (supra), the decision in Ummer Farooque v/s. Naseema : 2005 KHC 1791 : 2005 (4) KLT 565 : ILR 2005 (4) Ker. 464 : 2005 (3) KLJ 352 was noticed.

(2.) The Division Bench found that in the present case; except the evidence relating to the parties as noted in the reference order; there is no evidence adduced by either of the parties in respect of their respective contentions. We have also perused the evidence and are of the view that the evidence tendered before the Family Court is wholly insufficient to resolve any dispute as to whether the parties to this litigation follow the Hanafi school of law; as also, as to whether there could be any general application of the Hanafi school of law to the Muslims of Kerala. We note this legal issue; here and now; because the reference to the Full Bench is pointedly generated on the basis of the contents of the two Division Bench decisions referred to in the order of reference. This may be the reason why the learned Judges of the Division Bench, which has made the order of reference to the Full Bench, have noted that the aforenoted two Division Bench decisions result in opposing conclusions, particularly on the point whether the Muslims in the State of Kerala belong to Hanafi sect of Sunnis or to Shafei sect.

(3.) During pendency of this matter before the Full Bench, the appellants who are the plaintiffs have filed IA No. 2570 of 2011 seeking leave to amend the plaint by incorporating paragraph 7(a) which is as follows: