Jaseena C.M. v. Askar @ Alavikutty (Mat.Appeal No. 890 of 2018), High Court of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE K.HARILAL** **&** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **FRIDAY, THE 06TH DAY OF DECEMBER 2019 / 15TH AGRAHAYANA, 1941** **Mat.Appeal.No.890 OF 2018** **AGAINST THE ORDER IN OP 252/2018 OF FAMILY COURT, MALAPPURAM** ## **APPELLANT/PETITIONER:** **JASEENA C.M. AGED 33 YEARS D/O IBRAHIM MUTTIKKAL HOUSE CHENDUNNA, AREACODE AMSOM CHEMRAKATTUR P.O ERNAD TALUK MALAPPURAM-673639** **BY ADV. SMT.BOBY M.SEKHAR** ## **RESPONDENT/RESPONDENT:** **ASKAR @ ALAVIKUTTY AGED 38 YEARS S/O EABDHAN KUZHIYAN MUHAMMED MELEPOYIL PERAKAMANNA AMSOM DESOM PANNIPPARA P.O MALAPPURAM-676541** **THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 06.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **Mat.Appeal.No.890 OF 2018** **2** ## **JUDGMENT** **Dias,J.** **The petitioner in O.P.252/2018 on the files of the Family Court, Malappuram is the appellant in this Mat.Appeal.** **2. The appellant had filed** **O.P.252/2018 against the respondent, her husband, seeking an order for past maintenance.** **3. It was the case of the appellant that her marriage with the respondent was solemnised on 17.4.2015. Marital disputes** **arose and she was deserted from** **30.4.2015. The appellant asserted that the respondent though was affluent, wilfully refused to maintain her. Accordingly, the appellant sought for an order of past maintenance for an amount** **Mat.Appeal.No.890 OF 2018** ## **3** **of Rs.6000/- per mensum.** **4. The respondent was set ex-parte. The petitioner adduced evidence, but the Family Court by the impugned order dismissed the original petition, on the finding that the appellant belongs to the Hanafi school of law, therefore, she is not entitled for maintenance, in view of the decision of a Full Bench of this Court in** _**Beepathu v. Abdul Azeez [2016 (2) KLT 192 F.B].**_ _**5.**_ **It was declared in** _**Beepathu (**_ **supra) only those wives who belong to the Shafei school of law are entitled to past maintenance, though there may be no agreement in respect thereof. The eligibility of the wife to sue her husband for past maintenance when he neglects or refuses to maintain her** **Mat.Appeal.No.890 OF 2018** **4** **without any lawful cause does not include the eligibility of the wife to a decree for past maintenance in case of a wife belonging to the Hanafi School of Law, unless the claim is based on a specific agreement.** _**6.**_ **Assailing the order passed by the Family Court, this appeal is filed.** **7. Heard Adv.Boby.M.Sekhar, the learned counsel for the appellant.** **8. It is an undisputed fact that there is no averment in the original petition to which school of law the appellant belongs to. The Family Court** **rightly on the finding that there was no pleading regarding the appellant's school** **of law, came to the conclusion that the** **appellant falls within Hanafi school and is therefore not entitled to past** **Mat.Appeal.No.890 OF 2018** **5** **maintenance.** **9. The learned counsel for the appellant relies on the judgment of this Court in** _**Abdul Raheem v. Rajula E.T & others**_ **reported in Manu/KE/1486/2018.** **10. It is the case of the learned counsel for the appellant that, both in** _**Beepathu**_ **as well as** _**Abdul Raheem (supra)**_ **, this Court in similar circumstances granted the appellants' liberty to amend the original petition and plead and prove the school of law to which the party belongs to. The counsel seeks leave to permit the appellant to plead and prove the above aspect. According to the counsel, the appellant belongs to Shafei school of law and is therefore entitled to past maintenance.** **11. On going through paragraph 9 of** **Mat.Appeal.No.890 OF 2018** **6** _**Beepathu**_ **(supra) it is held that: “There is a clear divergence of opinion and none of the decisions referred in** _**Beepathu**_ **(supra) amounts to declaration of law that Muslims of Kerala belong to any particular sector either as Hanafi sect or Sunni; or Shafei sect and what is the extent of law that is applicable to them”.** **12. The Full Bench further held that: “Keeping in mind the nature of conflict and absence of evidentiary material on the basis of which the afore noted 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** **Mat.Appeal.No.890 OF 2018** **7** **Shafei sect. The reference was answered accordingly.”** **13. Therefore, in the light of the authoritative pronouncement of the Full Bench in** _**Beepathu**_ **(supra), and the appellant's plea that she belongs to Shafei and not Hanafi and also that the respondent was ex-parte, we are of the view that the appellant can be given one more opportunity, considering the case to be one for past maintenance to amend the pleadings in the original petition and prove and establish that she belongs to the Shafei school.** **14. In the facts and circumstances of the case especially considering the fact in** _**Beepathu**_ **and** _**Abdul Reheem (supra),**_ **this Court showed indulgence in granting the appellants' in the above cases an** **Mat.Appeal.No.890 OF 2018** **8** **opportunity to amend the pleadings, the same benefit is granted to the appellant.** **In the result:** **1. This appeal is allowed.** **2. The impugned order is set aside.** **3. The appellant is granted leave to move an application seeking leave to amend the pleadings in O.P.252/2018.** **4. The Family Court shall, if such application is filed, consider and dispose of O.P.252/2018, in accordance with law, as expeditiously as possible after providing the appellant a further opportunity to establish her case.** **ma/09/12/2019** **Sd/-K.HARILAL,JUDGE Sd/-C.S.DIAS, JUDGE** **/True copy/ P.S to Judge**