AI Structured Summary
Not yet generated for this judgment
Judgment
That in the 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 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 that:
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 Kajee 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
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 whenever
according to the practice that prevailed in those days, he states on any point the contrary doctrine of the Shafi. or any other branch of the Sunni
system, that statement may generally be safely accepted as correct. In Minhajet Talabin of Namawi, a high authority on the Shafi Law and recently
translated by Messrs. Van Ien 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 of the 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 proscribed, 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.
In Tohfatal Mierhaj which is an authoritative commentary on the Mirhaj by Shahabuddin Ahmad Ibu Hayanul Hailini who flourished in the
sixteenth century, it is expressly stated that the maintenance is a debt on her husband"" even if it was not decreed by the Kazee"" (Volume 3, 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 judgments. It may however be pointed out that in paragraph Civil Revision Petition No. 951 of 1916 praying the High Court to revise the
order of D.G. Waller, the District Judge of Coimbatore, in Civil Miscellaneous Appeal No. 6 of 1916, preferred against the order of 8. Raja
Gopala Ayyangar, the District Munsif of Tiruppur, in Original Suit No. 1631 of 1915 of that section ''Sunni Law'' is a mistake for the ''Hanafi
Law,'' The decision in Abdul Futter Moulvie v. Pabunesa Khatun ILR (1881) Calc. 631 is according to the Hanafi school of law which is followed
by the Muhammadans of Bengal generally. The appeal is dismissed with costs.