Kerala High Court
M. Abdul Karim vs P.K. Nabeesa And Ors. on 29 October, 1987
Equivalent citations: AIR1988KER258, AIR 1988 KERALA 258, (1988) ILR(KER) 2 KER 29, (1987) 2 KER LT 887, ILR (1988) 2 KER 29, (1988) 24 REPORTS 1, (1988) 1 CURCC 222
JUDGMENT M.M. Pareed Pillay, J.
1. Appellant is the defendant in O.S. 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, A.S. 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% 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 Mahamed Haji v. Kalimabi, ILR 41 Mad 211: (AIR 1918 Mad 722) it is held as follows : -
"According to the Shafei School of Mohammedan Law maintenance is a debt and the wife is entitled to recover from her husband arrears of maintenance though there be no decree of Court or mutual agreement in respect of such maintenance."
Thus there is sharp distinction with regard to the claim of arrears of maintenance in so far as Shafei and Hanafeis are concerned. According to Shafei School, maintenance due to a wife is a debt and not in the nature of a gratuity as propounded by the Hanafi School. Shafei School makes the position abundantly clear that maintenance due to the wife is in all circumstances to be considered as a debt upon the husband and merely because it got accumulated the wife is not precluded from claiming it as arrears of maintenance.
3. In Minhajet Talabin of Namawi, a high authority on the Shafei Law it is laid down as follows :
"When a husband during his marriage becomes so insolvent that he can no longer give the minimum maintenance prescribed, but his wife in spite of this continues to live with him the maintenance becomes a debt due to her from him and exigible at any moment."
This makes the position clear that according to the Shafei School arrears of maintenance can be recovered by the wife counting from the date when her husband wrongfully refused or neglected to maintain her. As the Shafei School clearly lays down that the maintenance is a debt on her husband it is futile to contend that past maintenance cannot be recovered by a wife.
4. Though in the plaint it is not stated that the parties belong to Shafei sect it is specifically asserted in the replication filed by the plaintiffs that they and defendant follow Shafei School. Majority of Muslims in Kerala follow Shafei School. So far as this State is concerned Hanafis are only in the minority. Besides taking judicial notice of the above position, there is also ample evidence in the case that the parties follow Shafei School. Defendant examined as D.W. 1 stated that he is a Sunni Muslim, but does not know to which sect he belongs. First plaintiff examined as P.W. 1 stated that the plaintiffs and defendant belong to Shafei sect. P.W. 2 who is the secretary of the Jumayath deposed that the plaintiffs and himself belong to Shafei sect. D.W. 1 does not have a case that the plaintiffs do not belong to Shafei sect. The finding of the trial Court that the parties belong to the Shafei sect is a finding of fact. The lower appellate Court on a consideration of the evidence held that the first plaintiff is entitled to past maintenance at the rate of Rs. 50/- per month. The above finding does not warrant interference.
There is no merit in the Second Appeal. Hence the same is dismissed with costs throughout.