Kachi Muhaidin Tharaganar vs Sainambu Ammal and Others

Abdur Rahman, J.—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 7th 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.

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.

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.

He has referred to the opinion of several jurists given in Fatwa Alamgiri which point to the conclusion that the right of Hizanat (custody)

terminates when the girl is marriageable although as pointed above, the Malikis and Shafeis hold that it should continue until she was actually

married. Since according to the Muhammadan practice and tradition, a girl was expected to be married as soon after she attained puberty as

possible, the difference between the doctrine of the two sects was pointed out by the learned author to be not so great or marked as would at first

sight appear. But with the growth of western civilization in India and having regard to the variation in the angle of vision from which the matter is

now generally looked at, particularly amongst : those who have imbibed western thought and ideals, supported as it is to some extent'' by new

legislation, when the marriageable age and puberty do not usually coincide, the distinction between the Hanafi and the Shafei doctrines has to be

regarded as real. Luckily, however, even the Hanafi jurists in other Muhammadan countries, as referred to by Mr. Ameer Ali, are inclined to

accept and act according to the Maliki and the Shafei doctrine on this point and to permit a mother to retain the custody of her daughter up to the

time that she is married. Since a girl needs the guidance of her mother more and not less between the time after the attainment of puberty and her

marriage, the preference given by the Hanafi jurists to the Shafei view can be well understood and appreciated. If, therefore, the right of custody

by the mother were any test in this case, I would have no hesitation in holding, particularly when the parties belonged to the Shafei sect, that the

mother was competent to retain her daughters'' custody in spite of their having attained puberty up to the time that they were actually married. But

the contention put forward on behalf of the defendant has in my opinion no bearing on the question that I have been called upon to decide in this

appeal. This was a suit for recovery of maintenance and the rules of maintenance, so. far as the children are concerned, have got really nothing to

do with the father''s right of custody. If the father has any right of custody of his children, he is entitled to enforce that right but the fact that he has

not done so or that his children are residing elsewhere does not, in my opinion, deprive them of their right to claim or recover maintenance from

their father. The Prophet of Islam declared the maintenance of children to be obligatory on the father and as long as he is in a position to do so and

the children have no independent means of their own, it remains his duty to provide for them. That is why even according to the Hanafi jurists,

although the father was entitled to the custody of his daughters after puberty, he was held to be liable for the maintenance of his daughters up to the

time that they were married. This would also show that the right of the daughters to recover their maintenance cannot be legitimately linked with the

right of the father to have them in his custody. There is no divergence of opinion between the Hanafis and the Shafeis on this point and Baillie in his

Muhammadan Law, while describing the ordinary Hanafi rule in regard to maintenance refers at page 462 (second edition) to the father''s absolute

duty to maintain his daughters up to the time that they were married (See also Mulla''s Muhammadan Law at page 264 para 269, 11th edition).

The contention that the father has been held by their Lordships of the Privy Council in (1918) ILR 45 878 (Privy Council) to be the legal

guardian of his children is also beside the point. It cannot be denied that he is so but if a minor has certain rights against his legal guardian, there

appears to be no justification for holding that the former cannot enforce them against the latter.

It was admitted at the bar that the defendant had married again and has no less than seven children by his second wife. In the absence of any

genuine attempt on his part to recover the custody of his daughters, a formal demand by him calling upon them to come and live with him gives

some room to doubt his bona fides. It appears to be more for the purpose of terminating his liability to pay for their maintenance rather than to

enforce his desire to keep them with him on account of the natural tie that binds them together. Nor is the refusal on the part of his daughters to

leave their natural mother and to start living with their step-mother and step-brothers and sisters, in the circumstances, unnatural. Considerations of

these questions in a suit for maintenance of the daughters before their marriage are however irrelevant. The father''s liability to maintain his children

is absolute subject of course to his being in a position to bear that burden and to the children not having any independent means of their own. And

in this case it is not denied that he has means to do so and the small income which these plaintiffs are making by working for themselves has been

duly taken into account. The maintenance awarded is, in spite of its enhancement by the first Court of Appeal, extremely meagre and it is

impossible to give effect to the contention that this increase was not justified. Had it been possible for me to do so now, I should have enhanced it

still further. But unfortunately, it is not. There is no cross appeal on behalf of the plaintiffs.

For these reasons, the ''appeal fails and is dismissed with costs.