KACHI MUHAIDIN THARAGANAR Vs. SAINAMBU AMMAL

JUDGEMENT

(1.) This appeal arises out of a suit brought by one Sainambu Ammal (plaintiff No. 1) in the Court of the District Munsif of Ambasamudram for the recovery of Rs. 402-8-0 in regard to expenses alleged to have been incurred by her on behalf of her minor daughters (plaintiffs 2 and 3) from the 7 November, 1933 to the 2nd February, 1936 and for their future maintenance at Rs. 15 per mensem. The suit was instituted against the minors father who is said to have divorced the first plaintiff some years ago. The parties were described in the plaint as Muhammadans belonging to the Shafei sect. The expenses before the 7th November, 1933 were recovered by another suit (O.S. No. 355 of 1933) brought by and on behalf of the same plaintiffs in the same court. It was pleaded inter alia by the father in the present litigation that the first plaintiff could not recover any maintenance on behalf of the second and third plaintiffs as they had attained puberty and were being unlawfully detained by her in spite of the defendant's demand for their custody. These allegations were denied on behalf of the plaintiffs although, in the absence of the statements of the counsel for the parties before the issues were framed, legal positions for which they contended were not brought out clearly at that stage.

(2.) After considering the evidence adduced on behalf of the parties the District Munsif found that the second plaintiff was 15 years of age towards the end of 1934 and that the third plaintiff attained the age in or about February, 1936 when the suit was instituted. In view of that finding and in the absence of any direct evidence as to puberty, he presumed the second plaintiff, in accordance with the rule of Muhammadan Law, to have attained puberty towards the end of 1934 and the third plaintiff at or about the time when the suit was instituted in February, 1936. He further held that inasmuch as the defendant was entitled to the custody of his daughters after they had attained puberty and they could not legitimately reside with their mother after that period, he was only liable for their maintenance up to such time that they had not attained puberty. A decree for Rs. 74-4-8 was, therefore, passed in favour of the plaintiffs and the rest of the claim including the claim for future maintenance was dismissed. It might be stated here that the second plaintiff was found to have been a major at the time when the suit was brought and the first plaintiff's name as a next friend was deleted by the court suo motu as a surplusage. This was obviously the right course to adopt and no exception was taken to this procedure by the defendant, subsequently. An appeal against this decree was taken on behalf of the plaintiffs to the Principal Subordinate Judge of Tinnevelly who pointed to the fact that the parties to the suit were Muhammadans of the Shafei sect and it was, therefore, incorrect for the District Munsif to hold that the mother was entitled to the custody of the daughters up to the time of puberty. He held that according to the Shafei Law, to which the parties admittedly belonged, the mother was entitled to retain custody of her daughters up to the time of their marriage. Finding therefore that the daughters were justified in residing with their mother even after they had attained puberty, he enhanced the amount of the decree to Rs. 134-3-3 for past maintenance and decreed a sum of Rs. 5 per mensem for both the second and third plaintiffs by way of future maintenance until they were married. The defendant appeals and the only important point that has been argued before me is whether the claim for the daughters maintenance both past and future, was in the circumstances, rightly allowed by the lower appellate court for the period after they had attained their puberty.

(3.) It is urged that inasmuch as the father is the legal guardian of his children and his right to give his daughters in marriage cannot be questioned according to the Shafei law, (which in fact clothes him with larger powers in this respect than the law prevailing amongst the Hanafis) the mother's custody should foe held to be illegal and the defendant should not, for that reason be held liable for any maintenance. There is, as pointed out by Saiyyid Ameer Ali in his well-known work on Muhammadan Law, a distinction in regard to the law as to the custody of a daughter between the Hanafis on the one hand and the Malikis, Shafeis and Hanbalis on the other. According to Hanafis, the mother is entitled to the custody of her daughter until she attains puberty while according to the latter she is entitled to her custody until she is married. He says at page 294 (Volume II, 4th edition), that: According to the judgment of the Courts of Algiers, it appears that in several notable instances, the Hanafi Kazis have followed the Maliki doctrines and decided that the mother is entitled to the custody of her daughters until they were married.