P.M.Ummul Faiza vs K.T.Ebrahim

Mohammed Nias C.P.J

The appellant is the plaintiff in O.S.No.230 of 1996 on the file of the Subordinate Court, Thalassery, aggrieved by the judgment of the Additional District Judge, Adhoc-II, Thalassery in AS No.42 of 2022, affirming the dismissal of the suit filed claiming past maintenance and the educational expenses of the children. The plaintiff contended that the marriage between her and the defendant was solemnized as per Islamic tradition, and six children were born in wedlock. From 1993 onwards, the respondent/defendant became indifferent to her and refused to maintain her and her children. It is also contended that the defendant contracted a second marriage and started residing with the second wife. The plaintiff contends that the respondent is legally and morally bound to pay the children's past maintenance and educational expenses.

The defendant resisted the suit, contending that he was maintaining his wife and children from his income and that the plaintiff was getting substantial assistance from her children. The plaintiff was leading a luxurious life with his payment, and when his income was considerably reduced, the defendant was compelled to shift from his own residence to his sister's house. Since the defendant felt that his continuous stay in his sister's house may cause inconvenience to them, in order to have company, he married a lady who was suffering from a heart ailment. On the basis of the above evidence, the trial court raised issues as to whether the plaintiff was entitled to the suit amount as past maintenance from the defendant.

The plaintiff was examined as PW1 and the defendant as DW1. No documentary evidence was adduced.

The trial court found that the plaint did not disclose that the parties are not Hanafis. The plaintiff was deemed to be belonging to Hanafi, and among Muslims, only Shafies Law ad Shilite Law are entitled to a right to claim past maintenance. Since there were no pleadings in the plaint that the parties belonged to the Shafie sect of Muslims, the trial court held that the plaintiff was not entitled to get any relief on her claim for past maintenance. As regards the other claim in the suit, it was found that children were not made parties to the suit and also found that the Judicial First Class Magistrate Court had, in the proceedings under Section 125 of the Cr.P.C., ordered the defendant to pay at the rate of Rs.400/- to the wife and that the rate of Rs.350/- to the two minor children. It was also found that the plaintiff was not entitled to get any past maintenance from the defendant, and accordingly, the suit was dismissed.

The plaintiff filed an appeal, in which the appellate court found that the plaintiff had not produced any document to show that she had spent any amount for the children's educational purposes, even though the burden was on her. The appeal was dismissed, affirming the trial court's judgment albeit on different reasoning.

In the second appeal, it is the contention of the learned counsel that the appellant is legally entitled to get past maintenance and relied on the judgment of this Court in Ummer Farooque v. Naseema [2005 (4) KLT 565], wherein it was held that majority of Muslims in Kerala follow Shafie school and judicial notice is taken of this fact. There is no necessity to prove that parties belong to the Shafie sect in order to be entitled to claim past maintenance. He also placed reliance on the judgment of this Court in Beepathu v. Abdul Azeez [2016 (2) KHC 3033=2016(2)KLT 192]. It is further argued that the judgment in Ummer Farooque (supra) cannot be treated as a precedent to hold that the Muslims of Kerala belong to the Hanafi sect of Sunni or whether they belong to the Shafie sect. As the right of the parties, in this case, was to be determined on the basis of the evidence to be adduced with appropriate pleadings on record. Thus, it is the submission that the dismissal of the suit was wrong and prayed for allowing this appeal.

Learned counsel for the defendant/respondent contended that there were no pleadings, and as such, the legal presumption is that the parties are Hanafis. There is no dispute that under the Hanafi Law, the wife is not entitled to claim or maintain a suit for past maintenance, and only Shafies and Shias alone are entitled to get past maintenance as of right. On these grounds, the judgments under appeal are sought to be substantiated.

The following substantial questions of law are framed at the time of admission of the appeal:

“(1) Is not the finding of the lower appellate court bad in law having dismissed the suit in spite of holding that the appellant is legally entitled to claim past maintenance in the light of the decision of this Hon'ble Court in Ummer Farooque v. Naseema [2005 (4) KLT 565 DB]?

(2) Has not the learned Addl. District Judge erred in dismissing the suit for the reason that the appellant has not discharged the burden of proving her case in the absence of any evidence on the side of the respondent per contra and particularly when the trial court has dismissed the suit only only the legal aspect as to whether the parties belong to the Shafie or Hanafi Sect?

(3) Is the lower appellate court justified in dismissing the suit for different ground than found by the learned Sub Judge? What is the legal import and effect of the findings in paragraph 8 of the lower appellate court judgment?”

The trial court found that the suit filed by P.M.Ummul Faisa seeking maintenance for a period of three years immediately prior to the filing of the suit from her husband did not disclose that the parties were not Hanafis and also that the parties belong to the Shafei sect of Muslims. Holding that the presumption is that Muslims in India are Hanafis though the same is a rebuttable presumption which could be discharged only by specific pleadings. The trial court found that there were no pleadings and, therefore, only the legal presumption available was the parties were Hanafis, in which case they were not entitled to claim or maintain a suit for past maintenance as only those Muslims following the Shafies Law and Shilite Law are entitled to claim past maintenance. Consequently, the suit was dismissed as not maintainable. It was also found that the suit was filed on behalf of her children also, but they were not made parties, and the question of awarding maintenance to them also did not arise.

In the appeal by the wife against the dismissal of her suit, the appellate court found that there was no contention from the side of the defendant that the suit is not maintainable as the parties belong to Hanafis and therefore relying on the judgment in Ummer Farooque (supra) found that the plaintiff was entitled to claim past maintenance. However, it found that there is no evidence adduced by the plaintiff to prove that he had spent amounts for her children as pleaded in the plaint. Though the defendant also did not plead or adduce evidence to show that he had spent amounts for the children, finding that the burden was on the plaintiff, the suit was dismissed on a different ground than found by the trial court, and accordingly, the appeal was dismissed.

On a consideration of both the judgments with the records, it is clear that the trial Court's dismissal of the suit in the first instance was wrong. No issue was raised regarding the suit's maintainability, as found by the appellate court. In any view of the after the Full Bench judgment of this Court in Beepathu (supra) where the dispute considered was regarding the eligibility of the wife to claim past maintenance as the defence set up therein was that the parties belonged to the Hanafi sect of Sunni among Muslims and therefore the wife was not entitled to claim past maintenance. A reference was warranted as the Division Bench, which considered the question found that there was a divergence of opinion between the decisions of the court as to the applicability of the general principle that Muslims of Kerala are predominantly Hanafis. Finally, answering the reference, the Full Bench held as follows:-

“In the light of the contents of the precedents of the Kerala High Court as noted above, there is a clear divergence of opinion, and none of the decisions referred to above amounts to declaration of law that the Muslims of Kerala belong to any particular group; either Hanafi sect of Sunni; or, Shafei sect and as to what is the exact law that is applicable to them. Keeping in mind the nature of conflict and the absence evidentiary material on the basis of which the aforenoted decisions have been rendered, we are of the view that none of those decisions could be treated as precedent which could be utilised as sources of law to hold that the Muslims of Kerala belong to Hanafi sect of Sunni; or, belong to Shafei sect.

The result of the above discussion is that the rights of the parties in the case in hand have to be determined on the basis of the evidence that would be adduced with appropriate pleadings on record. The questions referred to the Full Bench having been answered as above, the only thing that is required is to grant leave to the plaintiffs to amend the plaint and resultantly, to have the opportunity to adduce evidence on proof of their assertion that the parties are Shafeis and do not follow Hanafi school of law and the defendant obviously ought to have the requisite opportunity to contest that position through further pleadings and evidence.”

In view of the above pronouncement by the Full Bench, it is clear that the decision on the maintainability was clearly wrong. As found by the Full Bench, the case had to be decided on the basis of the pleadings and evidence adduced and not based on any presumption as to whether the Muslims of Kerala belong to any particular group, either the Hanafi sect of Sunni; or Shafie sect and Shias. In such circumstances, I deem it appropriate to set aside the judgment of the appellate court that confirmed the trial court's conclusion, though on different points. The questions of law are answered in favour of the appellant. The impugned judgments and decrees are set aside, and there will be a direction to the Additional Subordinate Court, Thalassery, to de novo consider OS No.30 of 1997 within an outer time limit of five months from the date of receipt of a copy of this judgment. Both parties are granted leave to amend their pleadings and also to let in evidence in tune with the pleadings. Needless to say, all issues concerning the applicability of law are left open.