IBRAHIM FATHIMA Vs. MOHAMED SALEEM

JUDGEMENT

(1.) This second appeal raises a difficult problem in Mohamedan Law relating to maintenance of children by a father. The question is whether the father's obligation is purely personal or whether it attaches to his property in such a way as to be enforced even against an alienee from the, father. To find a solution to this problem learned counsel had to hunt for material in ancient texts of Islamic Jurisprudence. For, there was a surprising dearth of case-law on the subject And, as I shall presently show, the one solitary case on the subject figuring in our law reports contained title or no' reference to ancient sources.

(2.) The question in this can arose this way One Mohamed All had three properties and two wives. Under a settlement of the year 1972 he settled all the three properties on his childless first wife, Ibrahim Fathima, to the entire exclusion of the second wife, Ummul Bashire, and her four minor children. The value of the settled properties was Rs. 55,000.

(3.) The circumstances under which Mohammed All parted with his properties under the settlement are not very much in dispute. He had fallen out with his second wife, for some reason, and switched his affections back to his first wife. The, neglected second wife then filed a petition before the Magistrate for maintenance of herself and her children. An order by consent was passed in that petition for payment of a monthly maintenance of Rs. 40 to the second wife and Rs. 10 to each of the minor children. Mohammed Ali did not pay the amounts, but filed an amendment petition before the Magistrate saying that he had divorced his second wife, in the meantime, and the earlier maintenance order should be limited to the period of the iddat or up to 1973. It was during the pendency of these proceedings that he effected the settlement in favour of the other wife.