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2016 DIGILAW 228 (KER)

Beepathu v. Kovath Abdul Azeez

2016-02-25

K.HARILAL, K.SURENDRA MOHAN, T.B.RADHAKRISHNAN

body2016
JUDGMENT : T.B. Radhakrishnan, J. 1. This reference to the Full Bench is made on a matrimonial appeal filed by the wife and children of the respondent seeking past maintenance. The dispute in this appeal is only regarding the eligibility of the first petitioner/wife to claim past maintenance. The defence set up by the respondent in this regard is that the parties belong to Hanafi sect of Sunnis among Muslims and therefore, the wife is not entitled to past maintenance. When this appeal was heard by the Division Bench, the learned Judges noticed the decision of this Court in Amina v. Hassan Koya, 1985 KHC 135, 1985 KLT 596 , ILR 1985 (2) Ker. 580, 1985 KLN 429 , 1985 CriLJ 1996 which was relied on by the Family Court. But, the Division Bench opined that there is divergence of opinion as between the decisions of this Court as to the applicability of any general principle that the Muslims of Kerala are predominantly Hanafis. Reference was made to Moosa Seethi v. Mariyakutty, 1954 KHC 102, 1954 KLT 249 , AIR 1954 TC 432 , ILR 1954 TC 690, Abdulla Beary v. Alikunhi Beary, 1957 KHC 192, 1957 KLT 849 , 1957 KLJ 731 , 1957 KLJ NOC 43, 1957 KLT SN 135, Abdulla v. Katheesa, 1983 KHC 148, 1983 KLT 672 , 1983 KLJ 543 , AIR 1984 Ker. 94 , 1983 KLN 438 and Abdul Karim v. Nabeesa, 1987 KHC 604, 1987 (2) KLT 887 , ILR 1988 (2) Ker. 29, AIR 1988 Ker. 258 , 1988 (24) Re.. In contra distinction to Amina (supra), the decision in Ummer Farooque v. Naseema, 2005 KHC 1791, 2005 (4) KLT 565, ILR 2005 (4) Ker. 464, 2005 (3) KLJ 352 was noticed. 2. The Division Bench found that in the present case; except the evidence relating to the parties as noted in the reference order; there is no evidence adduced by either of the parties in respect of their respective contentions. We have also perused the evidence and are of the view that the evidence tendered before the Family Court is wholly insufficient to resolve any dispute as to whether the parties to this litigation follow the Hanafi school of law; as also, as to whether there could be any general application of the Hanafi school of law to the Muslims of Kerala. We note this legal issue; here and now; because the reference to the Full Bench is pointedly generated on the basis of the contents of the two Division Bench decisions referred to in the order of reference. This may be the reason why the learned Judges of the Division Bench, which has made the order of reference to the Full Bench, have noted that the aforenoted two Division Bench decisions result in opposing conclusions, particularly on the point whether the Muslims in the State of Kerala belong to Hanafi sect of Sunnis or to Shafei sect. 3. During pendency of this matter before the Full Bench, the appellants who are the plaintiffs have filed IA No. 2570 of 2011 seeking leave to amend the plaint by incorporating paragraph 7(a) which is as follows: "7(a). The defendant in the above proceeding has filed a written statement making a claim that the plaintiff, the defendant and their family are followers of Hanafi sect of Sunni and that in the absence of any agreement whether express or implied, the plaintiffs are not entitled to claim past maintenance and that the suit is liable to be dismissed. The said contention is absolutely without any merit. It is submitted that the Sunni Muslim belonging to north Malabar are followers of Shafi sect the Muslims of the other part of our State. In fact the Muslims belonging to the north Kerala, a province of erstwhile Madras State was following totally different custom and practice in the matter of marriage, inheritance etc., presumably owing to certain historical and geographical back grounds. As already submitted the Sunnis of north Malabar are generally followers of Shafi sect and the exception, if any, has to be pleaded and proved by the defendant. It is also pertinent to note that the contention of the defendant, if accepted, would lead to an anomalous situation that even the children are not entitled to get any past maintenance from their father. The contention of the defendant is not legally sustainable and liable to be rejected in limine." 4. The learned counsel for the appellants as well as the respondent made reference to the different judgments referred to above and also to Katheessa Umma and Others v. Kunhamu and Others, 1960 KHC 486, 1960 KLJ 1042, 1960 (2) KLR 522. The contention of the defendant is not legally sustainable and liable to be rejected in limine." 4. The learned counsel for the appellants as well as the respondent made reference to the different judgments referred to above and also to Katheessa Umma and Others v. Kunhamu and Others, 1960 KHC 486, 1960 KLJ 1042, 1960 (2) KLR 522. The learned counsel for the appellants/plaintiffs argued that in the light of majority of the decisions referred to above, it cannot but be held that Muslims of Kerala are predominantly those who follow the Shafei school of law and therefore, if there has to be an exception to that principle, it is for the defendant to plead and prove such exclusion and exception. Per contra, the learned counsel for the respondent argued that through the different judgments of this Court, it has been noticed that it is the indisputable position that Muslims in Kerala predominantly follow the Hanafi school of law and the Muslims in Kerala are predominantly Hanafis and that Shafeis are minority. 5. During the course of the arguments of this appeal, erudite submissions were also addressed by the learned counsel for the parties as to what would be the quality of consideration of claim for past maintenance in accordance with the concept of maintenance as a secular right in terms of the Constitution and the laws. Reference was made by the learned counsel for the parties to the Larger Bench decision of this Court in Mathew Varghese v. Rosamma Varghese, 2003 KHC 362, 2003 (3) KLT 6, 2003 (2) KLJ 760, ILR 2003 (3) Ker. 1, AIR 2003 Ker 312 which dealt with the rights of a minor child for maintenance as against its father and to the decision in Haseena Mansoor v. State of Kerala and Another, 2010 (2) KHC 798, 2010 (2) KLT 981 , 2010 (2) KLJ 346, ILR 2010 (2) Ker. 891 which laid down that classification only on the ground of sex is permissible while choosing the guardian to represent a minor child to collect the share of Death-Cum-Retirement Gratuity as would be due to that minor on account of its father's death. It was held that the mother cannot be deprived of the right to represent a minor child to collect such secular amounts merely because she is a muslim. It was held that the mother cannot be deprived of the right to represent a minor child to collect such secular amounts merely because she is a muslim. But, here, we are fundamentally dealing with the claim of a muslim wife for past maintenance. 6. Reference to authoritative text books on Mohammedan Law would disclose that there is noticeable variation between the laws applicable to Sunnis and the laws applicable to Shafeis. There is also conflict between the different schools of Sunnis, of which Hanafi is one. It is not in dispute that if the Hanafi school of Mohammedan Law applies to Muslims of Kerala, a muslim wife belonging to that sect is not eligible to past maintenance. An exclusion to such application of law has to be pleaded and proved to the satisfaction, if it is so claimed. 7. Personal laws, unless statutory, are customary. Custom has to be, primarily, pleaded and proved. But, custom would gain the force of law with such potency as could be recognised and applied in future cases when such personal law is accepted and applied by the Courts on the basis of decisions rendered on the basis of such evidence in any prior case of evidentiary value in the realm of law of precedents. Therefore, the question would, pithily, be whether there is any concluded statement through precedent law that Muslims in Kerala are Hanafis and have to be taken as predominantly following the Hanafi school of law. 8. Amina (supra) was rendered after noticing that the reference order in that case indicated that there is a controversy as to whether the Muslims of Malabar area or for that matter any part of the State are presumed to follow Hanafi Law or Shafei Law. The Division Bench noted that Katheessa Umma v. Narayanath Kunhamu, 1964 KHC 309, AIR 1964 SC 275 , 1964 KLJ 57, 1963 (2) KLR 269, 1964 (4) SCR 549 was a case from north Malabar and the parties are treated as Hanafis. It was further noted that in Marakkar v. Kandakutty, 1966 KHC 96, AIR 1967 Ker. 78 , 1966 KLT 445 , 1966 KLJ 562 , this Court held that among Indian Muslims there is a presumption that they follow Hanafi Law and where deviation therefrom is sought to be relied on, it should be pleaded and proved as a fact. It was further noted that in Marakkar v. Kandakutty, 1966 KHC 96, AIR 1967 Ker. 78 , 1966 KLT 445 , 1966 KLJ 562 , this Court held that among Indian Muslims there is a presumption that they follow Hanafi Law and where deviation therefrom is sought to be relied on, it should be pleaded and proved as a fact. The Bench also noted the decision of this Court in Abdulla Beary v. Alikunhi Beary, 1957 KHC 192, 1957 KLJ 731 , 1957 KLT 849 , 1957 KLJ NOC 43, 1957 KLT SN 135 and noticed that the Courts presume that great majority of Muslims in India follow the Hanafi Law unless the contrary is alleged and proved and that the burden of proof lies on him who asserts otherwise. Making reference to further materials as well, the Division Bench opined that the Courts can safely presume that the Muslims of State of Kerala are following the Hanafi Law, and where departure therefrom is resorted to be proved, it must be pleaded and proved as a fact. In Abdul Karim (supra) rendered by the learned Single Judge, it was stated that majority of Muslims in Kerala follow Shafei school and that so far as this State is concerned, Hanafis are only in the minority. Adverting to the contents of that precedent, it can be seen that the issue relating to whether the parties to that litigation followed Shafei school or Hanafi school was not debated upon, on the basis of evidence tendered in that case. Obviously therefore, there is a clear divergence of opinion between the decision rendered by the Division Bench in Amina's case and that rendered by the learned Single Judge in Abdul Karim's case which was rendered without noticing Amina (supra). Going by the law of precedents, the law laid in Amina will override what is stated in Abdul Karim. However, 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 follow Shafei school and that Hanafis are only in the minority. However, 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 follow 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 judgments, 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 cases, as law. Mohammedans are divided into two sects, namely, Sunnis and Shias. The Sunnis are divided into four sub-sects, namely, Hanafis, Malikis, Shafeis and Hanbalis. The celebrated work: Mulla's Principles of Mahomedan Law says that the Sunni muslims of India belong to Hanafi school. However, the conflict of judicial opinion through the decisions of the Kerala High Court as noted above, defuses any consistency that would be available with reference to such classic works; in the application of Mohammedan Law to the Mohammedans of Kerala. According to the Shafei school, the wife is entitled to past maintenance, though there may be no agreement in respect thereof See Mahammad Haji v. Kalimabi 1918 (41) Mad. 211, 42 I.C. 517. The eligibility of the wife to sue her husband for maintenance when he neglects or refuses to maintain her without any lawful cause does not include the eligibility of the wife to a decree for past maintenance in cases of Hanafis, unless the claim is based on a specific agreement. 211, 42 I.C. 517. The eligibility of the wife to sue her husband for maintenance when he neglects or refuses to maintain her without any lawful cause does not include the eligibility of the wife to a decree for past maintenance in cases of Hanafis, unless the claim is based on a specific agreement. In view of the conflict of decisions, it has to be decided as to whether the parties to this litigation follow the Hanafi school or Shafei school of Mohammedan Law. 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 as 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 of 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. We answer the reference to the Full Bench accordingly. The result of the above discussion is that the rights of 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 in 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 the result, this appeal is ordered by setting aside the impugned judgment insofar as it relates to the refusal of relief to the first plaintiff for past maintenance and remitting OP No. 344 of 2003 to the Family Court, Kannur, with opportunity for the plaintiffs to carry out amendment in terms of IA No. 2570 of 2011 which we allow hereby. The amendment shall be carried out within three weeks from the date fixed for appearance before the Court below and the defendant is given three weeks time from the date of service of a copy of the amended plaint, to file written statement. All issues in relation to the applicability of the laws are left open. The parties are directed to mark appearance before the Court below on 29/03/2016.