BAYABAI Vs. ESMAIL AHMED

JUDGEMENT

(1.) THIS is a suit filed by a daughter against her father for arrears of maintenance, separate maintenance, and a declaration that the father was liable to pay reasonable expenses which she may have to incur for her marriage.

(2.) THE plaintiff was born at Mandvi (Surat) in 1920. Her mother was divorced by the defendant in December, 1931. On October 5, 1931, the defendant, through his attorneys, wrote to the plaintiff's mother's attorneys threatening to obtain possession of the plaintiff who was alleged to be wrongfully detained by her mother. In that letter the defendant offered to pay Rs. 15 every month, which the plaintiff's mother was asked to receive from the office of the defendant's attorneys, pending the steps which the defendant intended to take to obtain the custody of the plaintiff. No money was received by the plaintiff's mother, but she was thereafter divorced in December, 1931. On August 21, 1940, the plaintiff through her attorneys sent a letter of demand to the defendant claiming separate maintenance at Rs. 40 per month and arrears of maintenance A reminder was sent on September 2, 1940, but the defendant sent no reply. In July, 1940, the present wife of the defendant filed a petition to adjudge the defendant a lunatic, and, as stated in the plaint, the Court-receiver was appointed the Committee on September 6, 1940. THEreafter the plaintiff sent letters of demand to the receiver. In that it was pointed out that the second wife of the defendant had omitted to mention in the petition the plaintiff as a relation and had obtained an order from the Court-about the application of the income of the defendant's property without disclosing that fact. THE Court-receiver informed the plaintiff that there was no order for payment to her of separate maintenance or arrears of maintenance. He, however, suggested that the plaintiff might stay with defendant's present wife and the minor son. That suggestion did not appeal to the plaintiff and the present suit was filed in November, 1940.

(3.) THE plaintiff has claimed arrears of maintenance. On her behalf it was argued that if her right to be maintained is conceded, she is entitled to arrears of maintenance. In my opinion that argument is unsound. When the claim was made in August, 1940, the plaintiff had attained majority. Before that there had been no demand for maintenance on her behalf. THE plaintiff's mother did not avail herself of the opportunity to receive Rs. 15 per month offered in the defendant's attorneys' letter of October, 1931. Since then the plaintiff has been maintained by her mother. I do not think these facts permit a claim for arrears of maintenance. If during the minority of the plaintiff someone had supplied necessaries to her, not intending to do so gratuitously, that party may have a claim against the plaintiff. That however is not a claim for arrears of maintenance by the plaintiff. I do not find anything in Mahomedan law to sustain a claim for arrears of maintenance under the circumstances found in the present case. If after the plaintiff attained puberty a claim for maintenance had been made the defendant may have taken steps to obtain possession of the plaintiff as her lawful guardian. THE defendant and the plaintiff's mother allowed the plaintiff to remain with the plaintiff's mother without any claim for maintenance being made by the plaintiff or by her mother, while the defendant did not take any steps to recover the custody of the plaintiff. Both sides having left the matters in that way I do not think it can be contended that there was a failure on the part of the defendant to provide maintenance. Without that assumption a decree for arrears is not justified. Under the circumstances I disallow the claim for arrears of maintenance before August, 1940. THE third issue is accordingly answered in the negative for all claims prior to August, 1940.