1. That in Shafi Law, which governs the parties to this case, 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. For according to the theory of the former system, maintenance is a debt and is not in the nature of a gratuity as is the doctrine of Hanafi lawyers. In the Hedaya (Hamilton, Volume I, page 398) it is expressly laid down as the rule of Hanafi Law, if a length of time should elapse during which the wife has not received any maintenance from her husband she is not entitled to demand any for that time except when the Kazee had before determined or decreed it to her'. Then the learned author, after giving the reasons in support of the Hanafi view and in connection with the further deduction that arrears of a decreed maintenance drop in the case of the death of either party, states that Shafi says that the maintenance is in all circumstances to be considered as a debt upon the husband in conformity with his tenet that it is not a gratuity but a return, wherefore it cannot drop like demands of the former description, The Hedaya is devoted to the exposition of the Hanafi Law, but the erudition and accuracy of its learned author was so great that whatever, according to the practice that prevailed in those days, he states on any point to be the contrary doctrine of the Shafi or any other branch of the Sunni system, that statement may generally be safely accepted as correct. In Minhaj-ut-Talabin of Nawabi, a high authority on the Shafi Law, and recently translated by Messrs. Van Len Beg and Howard it is stated (at page 385 of the translation), 'During his stay in Egypt, Shafi adopted the doctrine that a wife's maintenance is obligatory only if she puts herself At her husband's disposition and not in virtue ofthe contract of marriage.... Consequently a husband owes his wife no maintenance so long as she refuses to come to him: but owes it from the moment he hears she is willing to put herself at his disposition'. Then further on it is laid down, 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 it clear that according to the Shafi school arrears of maintenance can be recovered by the wife counting from the date when her husband wrongfully refused or neglected to maintain her.
2. In Tuhfatal Minhaj, which is an authoritative commentary on the Minhaj by Shahabuddin Ahmed lbn Hayanul Hailini who flourished in the l6th century, it is expressly stated that the maintenance is a debt on her husband 'even if it was not decreed by the Kazee' (Volume III, page 382, in original Arabic text). The law, therefore, is correctly stated in Mr. Tyabji's Principles of Muhammadan Law, Section 307, cited in the lower Court's judgment. It may, however, be pointed out that in paragraph (2) of that section 'Sunni Law' is a mistake for the 'Hanafi Law'. The decision in Abdool Futteh Moulvie v. Zabunnessa Khatun 242 3 Ind. Dec. 410. is according to the Hanafi school of law which is followed by the Mahommedans of Bengal generally. The appeal is dismissed with costs.