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Mahomed Abdul Aziz Hidayat Vs. Khairunnissa Abdul Gani - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtMumbai
Decided On
Case NumberFirst Appeal No. 447 of 1945
Judge
Reported inAIR1950Bom245; (1950)52BOMLR133
ActsMahomedan Law
AppellantMahomed Abdul Aziz Hidayat
RespondentKhairunnissa Abdul Gani
Appellant AdvocateS.R. Parulekar, Adv.
Respondent AdvocateT.N. Walawalkar, Adv.
DispositionAppeal allowed
Excerpt:
.....is no obligation upon a father-in-law to maintain his widowed daughter-in-law. - - but however liberal and humane the court may be inclined to be, it can not step outside the well-established principles of law and it cannot itself make a new law for the parties. 2. the principles with regard to maintenance under mahomedan law are fairly well settled, and the main principle is, as is to be found in mulla's mahomedan law, p. it is also incumbent upon a father to maintain his son's wife when the son is young, poor or infirm. the liability of a father-in-law to maintain his daughter in law, so long as the son is alive, can be explained on the basic principles of mahomedan law, because a father is liable to maintain his son, and, as the statement of the law states, his liability to maintain..........another statement of law in baillie's digest, and that statement is:'it is also incumbent upon a father to maintain his son's wife when the son is young, poor or infirm. it is stated however in the mubsool that a father cannot be compelled to maintain the wife of his son.'mr. walawalkar wants us to extend the liability of the father-in-law from maintaining the wife of his son to maintaining the widow of his son. the liability of a father-in-law to maintain his daughter in law, so long as the son is alive, can be explained on the basic principles of mahomedan law, because a father is liable to maintain his son, and, as the statement of the law states, his liability to maintain his wife only arises when the son is young, poor or infirm. therefore, as the son cannot maintain his own wife.....
Judgment:

Chagla, C.J.

1. This appeal raises a very short question of Mahomedan law, and the question is whether there is any obligation in law upon a father-in-law to maintain the widow of his son. The learned trial Judge has awarded maintenance to the daughter-in-law more on grounds of humanity than on legal principles, and Mr. Walawalkar also has appealed to us to accept those humane considerations and not deprive the daughter-in-law of the very small maintenance, viz. Rs. 6, which the learned Judge has awarded her. But however liberal and humane the Court may be inclined to be, it can not step outside the well-established principles of law and it cannot itself make a new law for the parties.

2. The principles with regard to maintenance under Mahomedan law are fairly well settled, and the main principle is, as is to be found in Mulla's Mahomedan Law, p. 286 and Mulla relies upon the statement of law in Baillie's Digest of Mahomedan Law at p. 467, that a person is liable to maintain another when that person could be the heir of the person whom he is called upon to maintain. In this case the father in law could never be the heir of his daughter in law, and therefore on that principle there is no obligation on the father in law to maintain the widow of his son. Mr. Walawalkar has relied strongly on a passage in Tyabji on Mahomedan Law at p. 339, and that passage is based on another statement of law in Baillie's Digest, and that statement is:

'It is also incumbent upon a father to maintain his son's wife when the son is young, poor or infirm. It is stated however in the Mubsool that a father cannot be compelled to maintain the wife of his son.'

Mr. Walawalkar wants us to extend the liability of the father-in-law from maintaining the wife of his son to maintaining the widow of his son. The liability of a father-in-law to maintain his daughter in law, so long as the son is alive, can be explained on the basic principles of Mahomedan law, because a father is liable to maintain his son, and, as the statement of the law states, his liability to maintain his wife only arises when the son is young, poor or infirm. Therefore, as the son cannot maintain his own wife and as the father is liable to maintain his son, a sort of vicarious liability is cast upon the father-in-law. But on the death of the son naturally, the marriage between him and his wife is dissolved, the daughter-in-law becomes a complete stranger to the father-in-law. Under Mahomedan law, she is entitled to remarry, and therefore it would be contrary to the well-established principles of Mahomedan law to impose a liability upon the father-in-law to maintain the widow of his son.

3. However reluctantly and realising the great hardship in this particular case, we must come to the conclusion that the learned trial Judge was wrong in imposing this liability upon the appellant. The result is that the appeal is allowed, and the decree of the trial Court set aside. No order as to costs throughout.


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