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Trial Court mentions wrong provision of Mahomedan Law while granting maintenance to wife - Judgment not defective in eye of law

Trial Court mentions wrong provision of Mahomedan Law while granting maintenance to wife - Judgment not defective in eye of law

Khurshid Chandsab Shaikh Vs Bibi

Bombay HC


Second Appeal No. 601 of 2021

About/from the judgment:

The High Court decides whether the trial court’s decision mentioning the wrong provision pertaining to maintenance to the wife will be defective in the eye of law or not.

The decision of Civil Judge, Senior Division at Latur has been challenged in the instant second appeal with regard to the extent of quantum of maintenance at the hands of District Judge.

Respondent/original plaintiff had filed a suit for maintenance against her husband/appellant by taking aid of Mohamedan Law.

The Judge had awarded maintenance to respondent/wife at Rs 3000 per month but being aggrieved by the same, the respondent/wife preferred an appeal before the District Court at Latur by taking the aid of Section 96 of the Code of Civil Procedure.

District Court enhanced the maintenance amount from Rs 3,000 to Rs 5,000.

Appellant/Original defendant approached this Court by way of second appeal in view of Section 100 of the Code of the Civil Procedure.

Counsel for the appellant submitted that the core issue in the present matter was not properly adjudicated and as such, the appeal needed to be admitted and during the pendency of this appeal, the impugned judgment and decree passed by the courts below need to be stayed including the execution proceedings.

Analysis, Law and Decision

High Court first dealt with the issue regarding incorrect mentioning of the provision of the Compendium of Islamic Law.

Bench stated that the trial court erred while mentioning the provision of Clause 180 of the Mahomedan Law regarding the enhancement of maintenance. Clause 180 of the Mahomedan Law pertains to wakf’s objects partly valid and partly invalid, it is not related to the Maintainance of a wife.

Whether the Judgment can be said to be defective in the eye of the law because of incorrect clause of Mahomedan Law mentioned?

Bench answered stating ‘no’. Reasoning its decision, Court stated that the judgment of the trial court needs to be read as a whole in order to gather whether it was a suit for maintenance filed by the wife against her husband under the provisions of the Mahomedan Law and what are the findings recorded by the trial Court. Whether the trial Court has applied its judicial mind having regard to the facts of the case and evidence on record. That exercise is more important. The judgment cannot be said to be void only because the trial Court has mentioned incorrect provision while delivering the judgment.

Further, the Court observed that Clause 277 speaks about the husbands duty to maintain his wife, it provides that it is the duty of the husband to maintain his wife unless she is too young for matrimonial intercourse and so long as she is faithful to her husband and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to her husband or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt dower or she leaves the husband’s house on account of his cruelty.

Hence, in view of the above-stated provision, it is the duty of the husband to maintain his wife.

Clause 278 of the Mahomedan Law provides that if the husband neglects or refuses to maintain his wife without any lawful cause, the wife may sue him for maintenance, but she is not entitled to a decree for past maintenance, unless the claim is based on specific agreement. Or she may apply for an order of maintenance under the provisions of the Code of Civil Procedure, 1908, Section 488, in which case the court may order the husband to make a monthly allowance in the whole for her maintenance not exceeding five hundred rupees.

In view of the above discussion, it was clear that there are provisions under the Mahomedan Law for awarding maintenance to the wives.

Court expressed that there were concurrent findings of the two courts below and in view of the scheme of the second appeal provided by Section 100 of the Code of Civil Procedure, interference was permissible only in case of perversity in the findings and gross misappropriation of evidence causing injustice.

In Court’s opinion, the amount fixed by the District Court was reasonable and no substantial question of law was raised in the present appeal.

Read the Judgment


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