M ABDUL KARIM Vs. P K NABEESA

JUDGEMENT

(1.) Appellant is the defendant in OS 69 of 1976 of the Prl. Sub Court, Parur. Plaintiffs filed the suit for recovery of past maintenance. The Trial Court decreed maintenance to plaintiffs 2 and 3, the minor children of the first plaintiff. Maintenance was refused to the 1st plaintiff, divorced wife of the defendant. Plaintiffs filed appeal, AS 190 of 1980 The Additional District Judge allowed the appeal and awarded maintenance to the 1st plaintiff at the rate of Rs. 50/- per month with 6 per cent interest from the date of the suit.

(2.) Defence contention is that the wife does not rely on any specific agreement regarding past maintenance between her and her husband and therefore on that sole score the claim is only to be rejected. Counsel relied on para 278 of the Mulla's Principles of Mahomedan Law where it is stated that 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. But the law is different for those who follow Shafei School. According to the Shafei School wife is entitled to past maintenance though there may be no agreement in respect thereof. In Mohamed Haji v. Kalimabi (ILR 1918 Madras 221) it is held as follows:-

(3.) In Minhajet Talabin of Namawi, a high authority on the Shafei Law it is laid down as follows: