Abdul Raheem v Rajula E.T. and Hiba

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **THE HONOURABLE MR.JUSTICE K.HARILAL &** **THE HONOURABLE MR. JUSTICE A.M.BABU TUESDAY, THE 5TH DAY OF JUNE 2018 / 15TH JYAISHTA, 1940 Mat.Appeal.No. 677 of 2008** **AGAINST THE ORDER DATED 14-01-2008 IN OP 446/2007 of FAMILY COURT, MALAPPURAM** **APPELLANT/IST RESPONDENT:-** **---------------------------** **ABDUL RAHEEM, THARAYIL, AGED 28 YEARS, S/O.SAITHALAVI, FATHIMA HOUSE, VYDYARANGADI, RAMANATTUKARA.** **BY ADVS.SRI.P.VIJAYA BHANU SRI.P.VENUGOPAL (1086/92)** **RESPONDENTS/PETITIONERS:-** **-------------------------** **1. RAJULA E.T., AGED 24 YEARS, D/O.MOOSA ERANHIKAL THALAPPIL, VEERAKULATH HOUSE,** **THURAKAL P.O. KONDOTTY.** **2. HIBA, 2½ YEARS (MINOR), (REPRESENTED BY GUARDIAN MOTHER, IST RESPONDENT).** **BY ADV. SRI.BABU S. NAIR** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 05-06-2018,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **DST** ## **K. HARILAL & A.M. BABU,JJ.** ## **= = = = = = = = = = = = = = = = =** **Mat. Appeal No.677 of 2008** **- - - - - - -- - - - - - - - - - - - - -** _Dated this the 5[th] day of June, 2018_ ## **J U D G M E N T** ## **K. Harilal, J.** The appellant herein is the 1[st] respondent in Original Petition No.446 of 2007 of the Family Court, Malappuram. The aforesaid Original Petition was filed by the respondents herein against the appellant herein and his brother, claiming past maintenance from the appellant herein for a period of 26 months commencing from March 2005 to May 2007 at the rate of `2,000/- to the 1[st] respondent and for a period of 19 months commencing from 16.10.2005 to May, 2007 at the rate of `1,000/- to the 2[nd] respondent and `2,10,000/- being the value of 30 sovereigns of gold ornaments allegedly misappropriated by the 1[st] respondent and a sum of **Mat. Appeal No.677 of 2008** **-: 2 :-** `2,00,000/- being the amount allegedly given by the father of the 1[st] respondent to the appellant herein and `35,000/- being the value of 05 sovereigns of gold ornaments misappropriated by the brother of the appellant. Thus, the respondents had claimed a total sum of `5,16,000/- from the appellant herein and his brother. 2. The appellant herein and his brother entered appearance and filed objection, denying the liability to pay past maintenance allowance to the respondents and the liability to return 35 sovereigns of gold ornaments or its value. After considering the evidence on record, the Family Court allowed the Original Petition, directing the appellant to pay past maintenance at the rate of `2,000/- to the 1[st] respondent for 26 months i.e.,`52,000/- and `600/- to the 2[nd] respondent for 19 months i.e., `11,400/- Thus, the respondents ## **Mat. Appeal No.677 of 2008** ## **-: 3 :-** were allowed to realise a total sum of `63,400/with 9% interest from the appellant. The claim for value of gold ornaments or money was disallowed. M.C. was allowed, directing the appellant to pay maintenance allowance at the rate of `2,000/- to the 1[st] respondent and `600/- to the 2[nd] respondent per month from the date of filing the M.C. This appeal has been filed, challenging the impugned common order, directing the appellant to pay past maintenance to the respondents. 3. The parties are Muslims. According to the 1[st] respondent, her marriage with the appellant was solemnized on 01.09.2004 and the 2[nd] respondent is the child born in the said wedlock. The child was aged two years at the time of filing the petition. Three months after the marriage, the marital relationship between the 1[st] respondent and the appellant has become strained due to the matrimonial ## **Mat. Appeal No.677 of 2008** ## **-: 4 :-** cruelty and harassment from the part of the appellant and they were separated. Even though they united together after two months due to mediation, again they fell apart within one week. In the meantime, she had become pregnant and due to the physical torture and harassment, she was admitted in the hospital and the appellant had deserted her from March, 2005 onwards. Ever since the 1[st] respondent is residing separately in her parental house along with the 2[nd] respondent. She delivered the 2[nd] respondent on 16.10.2005. The appellant has not looked after or paid maintenance allowance to the 1[st] respondent since March, 2005 and no amount was paid so far, ever since the birth to the 2[nd] respondent. The 1[st] respondent has no job or any kind of sources of income and she is depending on her parents for livelihood. On the other hand, the appellant is running a fancy store by name ' NUNU Fancy' at **Mat. Appeal No.677 of 2008** ## **-: 5 :-** Thurakkal and he is having an income of `15,000/per month. In addition to that, he is earning a considerable amount per month as an automobile broker and he is getting `5,000/- per month in that account. Appellant/1[st] respondent admitted the marital status and parentage of the child. He denied the averment that the respondent was having 50 sovereigns of gold ornaments, at the time of marriage and he was given `2,00,000/- in connection with the marriage. He denied the allegation that he treated the respondent with cruelty. He has not appropriated the gold ornaments, as alleged by the respondent. The respondent was taken to her house during the seventh month of pregnancy. After the delivery, she refused to return to the matrimonial home. She is residing in her house without reasonable cause. So, he is not bound to pay maintenance allowance to the respondent. He is not ## **Mat. Appeal No.677 of 2008** ## **-: 6 :-** having so much income as alleged by the respondent. He prayed for dismissal of the Original Petition. 4. Heard the learned counsel for the appellant and the learned counsel for the respondent. 5. The learned counsel for the appellant mainly argued that the Family Court went wrong by finding that the appellant is liable to pay past maintenance allowance to the respondents, who belong to Hanafi sect of Sunnis among Muslims. So also, it is contended that the 1[st] respondent has no case that there was a specific agreement for the entitlement of past maintenance allowance, as provided under paragraph 278 of 'Mulla- Principles of Mahomedan Law' or they belong to Shafei sect. Unless it is specifically pleaded that they belong to Shafei sect of Sunnis among Muslims, they are not entitled to claim past maintenance allowance. Therefore, the absence of pleadings to the effect that they belong ## **Mat. Appeal No.677 of 2008** ## **-: 7 :-** to Shafei sect of Sunnis among Muslims is fatal to the claim. But, the Family Court has not considered the absence of pleading, while determining the entitlement of past maintenance allowance. In order to fortify the above said argument, the learned counsel for the appellant cited _**Beepathu and Others v. Kovath Abdul Azeez**_ [2016(2) KHC 303] held by the Full Bench of this Court on a reference. So also, it is contended that the quantum of past maintenance allowance granted to the 2[nd] respondent is excessive and disproportionate. 6. The counsel for the respondent advanced arguments to justify the direction to pay maintenance allowance to the respondent. According to the learned counsel, specific averments to the effect that the 1[st] respondent belongs to Shafei sect of Sunnis among Muslims is not required to claim maintenance allowance and it was for the ## **Mat. Appeal No.677 of 2008** ## **-: 8 :-** appellant to raise such a contention and prove that the 1[st] respondent belongs to Hanafi sect of Sunnis among Muslims, if he wants any exception from payment of maintenance allowance. 7. In view of the arguments at the Bar, the question to be considered is, whether the Family Court is justified in finding that the respondents are entitled to get past maintenance, which is kept in arrear by the appellant. Going by the averments in the Original Petition, it is pleaded that both the respondents and appellant are Muslims. The marriage between the appellant and the 1[st] respondent as well as the parentage of the 2[nd] respondent is not disputed. 8. As rightly pointed out by the learned counsel for the appellant, there is no pleadings to the effect that the respondents belong to Shafei sect of Sunnis among Muslims and the said question ## **Mat. Appeal No.677 of 2008** ## **-: 9 :-** was not considered by the Family Court. According to the appellant, it was for the respondents to plead and prove that they belonged to Shafei sect of Sunnis among Muslims in order to get maintenance allowance, particularly in the absence of specific agreement, as provided under Paragraph 278 of the 'Mulla- Principles of Mahomedan Law',. It is true that the respondents have no case that there is a specific agreement for entitlement of maintenance allowance or they belong to Shafei sect of Sunnis among Muslims. 9. Going by the aforesaid decision reported in _**Beepathu**_ 's case (supra), we find that the Full Bench of this Court considered the question whether the Muslims in Kerala are Hanafis or not, on a reference and held that none of the decisions could be treated as precedent which could be utilised as sources of law to hold that the Muslims of Kerala belong to ## **Mat. Appeal No.677 of 2008** ## **-: 10 :-** Hanafi sect of Sunni; or, belong to Shafei sect of Sunni among Muslims and as to what is exact law what is applicable to them and then the court held as follows: _“Held: Ummer Farooque (supra) was rendered by the Division Bench following Abdul Karim and thereby affirming the statement therein. In fact, the Division Bench said in Ummer Farooque that Abdul Karim is rendered by taking judicial notice of the position that majority of Muslims in Kerala follows Shafei school and that Hanafis are only in the minority. These contradictions between Ummer Farooque and Abdul Karim on the one hand and Amina on the other, are thus conflicts of opinion between Division Benches and have therefore to be resolved. However, examining the contents of those judgment, we reiterate that none of those opinions was rendered by pointedly considering any evidence rendered by the parties in those litigations on the issue of conflict; as to what is the law that is applicable to the Muslims of Kerala or a particular sect of Muslims in the State of Kerala. Such a question could have been, and ought to have been, determined only through such a judicial process examining and deciding on the basis of legal evidence tendered following pleadings on record. Then alone would such law gain the potency to be treated as law based on custom, practice and acceptance of community, which has gained such sanction as could be recognised by Courts to be upheld and applied on the basis of judicial precedents to future_ ## **Mat. Appeal No.677 of 2008** ## **-: 11 :-** _cases, as law.”_ 10. The rights of maintenance of Muslim wife has to be determined on the basis of the evidence that would be adduced with appropriate pleadings on record. In the light of the above decision, we find that in the instant case, there is no pleadings to the effect that the respondents belong to Shafei sect of Sunnis among Muslims or there is a specific agreement as provided under Paragraph 278 of the 'Mulla- Principles of Mahomedan Law'. In the light of the aforesaid decision, though pleadings are absent, we are of the opinion that the 1[st] respondent can be given an opportunity to amend the pleadings, so as to make the averments inconformity with entitlement of maintenance allowance. 11. As regards the entitlement of maintenance allowance on the 2[nd] respondent, we further find that Paragraph 278 of the 'Mulla- Principles of Mahomedan ## **Mat. Appeal No.677 of 2008** ## **-: 12 :-** Law' specifically deals with the entitlement of maintenance allowance of the wife only. Therefore, the aforesaid proposition cannot be made applicable to the 2[nd] respondent, the child, particularly, when the parentage of the 2[nd] respondent is not disputed by the appellant. It is needless to say, the father is liable to pay maintenance to the child. 12. As regards the quantum of past maintenance allowance, the appellant has no case that he is physically disabled to earn livelihood. The appellant is liable to pay maintenance allowance to the 2[nd] respondent to meet her expenses, including food, shelter, clothes, medicine, education etc. A physically able bodied man is presumed to be having sufficient earning capacity to meet the maintenance allowance of his children. 13. Having regard to the above view, we further find that the 2[nd] respondent is entitled to ## **Mat. Appeal No.677 of 2008** ## **-: 13 :-** get past maintenance allowance, which fell in arrears from the appellant and there is no reason to interfere with the quantum of past maintenance allowance. 14. In the above view, this appeal is allowed in part. The findings of the Family Court, directing the appellant to pay past maintenance allowance, which fell in arrears, to the 1[st] respondent alone are set aside and the Original Petition is remitted back to the Family Court for fresh consideration to that extent only. In view of the observation made above, in the light of the decision reported in _**Beepathu**_ 's case (supra), the parties are given an opportunity to amend the pleadings and adduce further evidence with respect to the particular sect of Sunnis among Muslims to which the 1[st] respondent belongs. The direction to pay past maintenance to the 2[nd] respondent will stand ## **Mat. Appeal No.677 of 2008** ## **-: 14 :-** affirmed. All other findings and orders with respect to other fiscal claims will stand undisturbed. It is made clear that the scope of consideration, after remand would be confined to the entitlement of maintenance allowance of the 1[st] respondent/wife only. This appeal is allowed accordingly. Sd/- **, JUDGE** //True copy// P.A. To Judge **K. HARILAL, JUDGE** Sd/- **A.M. BABU, JUDGE** DST