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Mandy Mathar Sahib Vs. Bijan Bi and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtChennai
Decided On
Reported inAIR1930Mad234; 121Ind.Cas.846
AppellantMandy Mathar Sahib
RespondentBijan Bi and anr.
Cases ReferredNazarat Hussain v. Hamidan
Excerpt:
- - the first court gave the plaintiffs a decree as sued for, finding that the defendant was a rich man with an annual income of about rs. it is a well settled rule that the law to be observed in the trial of suits shall, in the absence of any enactment or usage having the force of law, be the law of the defendant. but the same mention certain conditions also and it is not the plaintiff's case that such conditions have been satisfied in the present case......against the husband in the absence of a specific agreement or decree: see baillie's digest of mahomedan law, hanafi jurisprudence, edn. 2, p. 447; abdur rahiman's institutes of mussalman law p. 110; baillie's digest of mahomedan law (imami code of jurisprudence) p. 100 foot-note 6, where the hanafi law is also referred to. tyabji's mahomedan law section 307; mulla's mahomedan law section 214. in these circumstances, it would seem that the first plaintiff is not entitled to arrears of maintenance against her hanafi husband-the defendant-as no specific agreement or decree has been set up in the present case.14. the learned district judge, however, treated the plaint as one filed by plaintiff 2 and gave a decree in his favour for the amount of maintenance at the rate of rs. 30 a month.....
Judgment:

Anantakrishna Ayyar, J.

1. Plaintiff 1 was married by the defendant in 1904. He had two children by her, who lived until 1921; differences having arisen between plaintiff 1 and the defendant, the defendant divorced plaintiff 1 in February 1920. Between 1913 and 1920 plaintiff 1 and her two children were living separately from the defendant.

2. On the allegation that plaintiff 1 maintained herself and her two children out of the money borrowed from her brother-in-law plaintiff 2, she filed the original suit, making her brother-in-law plaintiff 2, to recover Rs. 1,244 from the defendant, being money borrowed for the maintenance of herself and the two children aforesaid; the amount is alleged to have been borrowed between May 1917 and February 1920, and the suit was filed on 8th April 1922. The defendant denied his liability. He also denied plaintiff 1's right to pledge the credit of the defendant and alleged that there was no lawful necessity to do so. He also pleaded that the suit was not maintainable at law and that the plaintiffs had no cause of action against him.

3. This is an unfortunate case; plaintiff 1 a Mahomedan lady had not proper legal advice in connexion with her suit. This is clear from the proceedings in the case. The first Court gave the plaintiffs a decree as sued for, finding that the defendant was a rich man with an annual income of about Rs. 3,000 and that plaintiff 1's claim of Rs. 1,244 for maintenance of herself and her two children for nearly 34 months was proper in the circumstances. On appeal before the lower appellate Court the learned District Judge stated that it was admitted that

under the Mahomadan Law a wife is not entitled to past maintenance unless the claim is based on a specific agreement and as no such specific agreement is set up in the present suit, the plaintiff 1 had no right to sue and this is conceded by the learned advocate for the plaintiffs.

4. The lower appellate Court treated the case as

practically a suit by plaintiff to recover money advanced to plaintiff 1 for the maintenance of herself and her two children and the learned vakil for the appellant does not dispute that under Mahomedan Law, a wife if neglected by her husband may contract debt for the support of herself and her children, and that if such debts are legitimate and contracted bona fide for their support, the creditors have a right of recovery against the husband. (Amir Ali, Mahomedan Law, Vol. 22, p. 362, and Mulla's Mahomedan Law, Section 214). There can be no doubt therefore, that the suit is maintainable in law by plaintiff.

5. On the merits the lower appellate Court reduced the amount decreed, being of opinion that Rs. 30 a month for the maintenance of plaintiff 1 and her two children may be considered a reasonable rate. It held that Article 120 applied to the suit and that the suit was not barred by limitation.

6. In modification of the decree passed by the 1st Court, the appellate Court gave a decree for Rs. 993 in favour of plaintiff 2 only. The exact passages from Amir Ali's book referred to in the lower appellate Court's judgment could not be traced by the learned advocates who appeared before me in the second appeal.

7. The defendant is a Hanafi. It is stated that plaintiff 1 became a Shafi after marriage. It is clear that the defendant, the husband, is not under Hanafi law liable for the maintenance of his wife where there was no decree or agreement for maintenance before suit see: Abdul Futteh v. Zabunnessa Khattun [1881] 6 Cal. 631. No doubt it is not specifically stated in the report, that the law applicable to that case was Hanafi law; but having regard to the fact that the authorities quoted by the learned Judges of the Calcutta High Court are authorities governing the Hanafi school of law, we may take it that case was a decision under the Hanafi law. Further light is thrown on that point by the observations of Abdur Rahim, J., and Srinivasa Iyengar, J., in the case reported in Mahomed Haji v. Kalimbai [1918] 41 Mad. 211, the learned Judges observed as follows:

The decision in Abdul Fatteh v. Zabunnessa Khathun [1881] 6 Cal. 631 is according to the Hanafi school of law, which is followed by Mahomedans of Bengal generally.

8. Further it is also stated at p. 212 as follows:

In the Shaft law that the wife is entitled to recover arrears of maintenance, though not due under a decree of Court or a mutual agreement, contrary to the Hanafi Law admits of no doubt.

9. It is also clear that in such cases, it is the personal law of the defendant that has to be applied, when he is sought to be made liable: see Aziz Beno v. Muhammad Ibrahim Hussain : AIR1925All720 . Sulaiman, J., observed at p. 824 (of 47 All.) that:

in his opinion the personal law which ought to be considered would be the personal law of the defendant.

10. At p. 825(of 47 All.) the learned Judge observed:

it would be grossly unjust to decree the claim on the strength of the personal law governing the plaintiff. It is a well settled rule that the law to be observed in the trial of suits shall, in the absence of any enactment or usage having the force of law, be the law of the defendant.

11. The case before the Allahabad High Court arose out of a suit by a Sunni husband against his Shiah wife for restitution of conjugal rights, and it is in that connexion that the learned Judge remarked that the law which ought to be applied was the law of the defendant: see Nazarat Hussain v. Hamidan [1882] 4 All. 205. This is the principle recognized in Section 112, Government of India Act, though the section in terms applied to cases on the original side of the High Court of Madras, Calcutta and Bombay. The section enacts:

when the parties are subject to different personal laws or custom having the force of law the High Court shall decide according to the law or custom to which the defendant is subject.

12. A similar law has been declared to be the law that should be followed in the mufassil by the Supreme Courts of Madras and Bombay (37 George 3, Chap. 142 Section 13). Similarly with reference to the mufassil in the Bengal Presidency a similar statute was passed: see 21 George 3, Chap. 70, Section 17.

13. Text writers on Hanafi Law have unanimously laid down that under that system of law, the wife is not entitled to arrears of maintenance against the husband in the absence of a specific agreement or decree: see Baillie's Digest of Mahomedan Law, Hanafi Jurisprudence, Edn. 2, p. 447; Abdur Rahiman's Institutes of Mussalman Law p. 110; Baillie's Digest of Mahomedan Law (Imami Code of Jurisprudence) p. 100 foot-note 6, where the Hanafi Law is also referred to. Tyabji's Mahomedan Law Section 307; Mulla's Mahomedan Law Section 214. In these circumstances, it would seem that the first plaintiff is not entitled to arrears of maintenance against her Hanafi husband-the defendant-as no specific agreement or decree has been set up in the present case.

14. The learned District Judge, however, treated the plaint as one filed by plaintiff 2 and gave a decree in his favour for the amount of maintenance at the rate of Rs. 30 a month for plaintiff 1 and her two children, on the footing that plaintiff 1 must be taken to have pledged the credit of the defendant since the defendant deserted and neglected to arrange for their maintenance. When the defendant is not liable for any arrears of maintenance under the Hanafi Law in the absence of specific agreement or decree the question arises whether the wife has got an absolute right to pledge the husband's credit to procure necessities for maintenance or borrow money for such purpose. The learned advocate for the respondent drew my attention to certain text books on Mahomedan Law; but the same mention certain conditions also and it is not the plaintiff's case that such conditions have been satisfied in the present case. Amir Ali's Mahomadan Law Vol. 2, p. 468; Abdur Rahiman's Institutes of Musalman Law p. 112, Article 202; Hedaya, Vol. 1, p. 397, Baillie,s Digest of Mahomedan Law, pp. 447-448. My attention has not been drawn to any provision of Mahomedan Law allowing the plaintiff-the wife--unconditionally to pledge her Hanafi husband's credit to secure money for maintenance where the husband deserted the plaintiff his wife. In these circumstances and having regard to the pleadings and proof in this case, I regret, I am unable to uphold the decree in favour of plaintiff 2.

15. There is, however, the fact that the defendant deserted and neglected his two children by plaintiff 1 who were maintained by plaintiff 1 till their death in 1921. The amount of Rs. 30 a month fixed by the lower appellate Court was in respect of both plaintiff 1 and her two children, and plaintiff 1 was entitled to recover the amount spent by her for the maintenance of the children from the defendant. I therefore allow the second appeal in part and remand the appeal to the lower appellate Court for fresh disposal in so far as the claim relates to the expenses incurred by plaintiff 1 in connexion with the maintenance, etc., of her two children acting under Order 41. Rule 33, Civil P.C. It would be open to the lower appellate Court to allow fresh evidence in case it should think fit to do so. In the peculiar circumstances of the case the parties to this litigation should bear their own costs incurred up to date. It would, however, be open to the lower appellate Court to pass such orders as to costs, as it should think fit, with reference to the amount which it may ultimately decree including court-fee thereon in the first Court.


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