Under the Muhammadan Law, a wife is not entitled to get a decree for past maintenance unless there is a decree or agreement for maintenance before the date of the suit.

1. This second appeal arises out of a suit by a divorced Muhammadan wife against her former husband for recovery of past maintenance, expenses of the delivery, mahr and return of dowry. The only question that was argued at the time of hearing in this court was whether the decree given by the trial court and confirmed by the lower appellate court for past maintenance is sustainable.

2. According to the plaint allegations the plaintiff has one child by her husband, the 1st defendant. She went to her father's house for her second delivery and the second child died some time after its birth. While the plaintiff was living in her father's house after the second delivery the 1st defendant divorced her on 11.5.1123. Past maintenance was claimed in the plaint for the plaintiff and her first child from Makaram 1122 to 11.5.1123 at the rate of Rs. 25 per month. The 1st defendant contended that he was not liable to pay past maintenance at all. The trial court allowed past maintenance at the rate of Rs. 15 per month, Rs. 5 being for the child and Rs. 10 being for the plaintiff. The lower appellate court also confirmed that award. The first defendant has therefore filed this second appeal. In the second appeal the only item objected to is the past maintenance and no objection has been taken to the other amounts decreed to the plaintiff.

3. The contention in this court was that under the Muhammadan Law a wife is not entitled to get a decree for past maintenance. This question was argued in the lower appellate court also. That court held that, as under the Shafi Law a wife is entitled to get a decree for arrears of maintenance and as there is no evidence in this case to show whether the parties are governed by the Shafi Law or the Hanafi Law the decree passed by the trial court could not be interfered with.

4. It has been judicially recognised that the great majority of Muhammadans in this country are Sunnis and therefore that the burden of proof lies on him who asserts that the parties to any particular suit are Shias (See S.13 of Wilson's Anglo- Muhammadan Law, 6th Edition). It is also admitted that Sunnis are generally governed by the Hanafi School of Law. In Akbarally v. Mahomedally (AIR 1932 Bom. 356) it was held that, as the great majority of Muhammadans in India follow the Hanafi School of Sunni Law, the Courts presume that Muslims in India follow the Hanafi Law unless the contrary is alleged and proved. In the present case, there is no allegation and no proof that the parties are Shias or belong to any school other than the Hanafi. In the absence of such allegation and proof it has to be presumed that the parties follow the Hanafi School of Sunni Law.

5. According to the statement of law in Baillie's Digest a wife is not entitled to get a decree for past maintenance, and this statement of law has been accepted by the Calcutta High Court in Abdool Futteh Moulvie v. Zabunnessa Khatun (ILR 6 Calcutta 631). Dealing with the question of past maintenance it was said in that case:?

"With regard to the question of maintenance, Mr. Piffard does not object to the amount of the monthly allowance; but he contends that the decree is erroneous in two respects; first, that no order ought to have been made for past maintenance; and second, that it should have been made payable, not during the plaintiff's natural life, but only during the continuance of the marriage.

As the defendant conducted his own case at the trial, it would appear that the attention of the learned judge was never called to either of these points; but upon reference to the authorities, we think that Mr. Piffard's contention is well-founded.

As to the first point, the law is stated thus in Baillie's Digest, P. 443:- "When a woman sues her husband for maintenance for a time antecedent to any order of the judge or mutual agreement of the parties, the judge is not to decree maintenance for the post." And the same rule is laid down in much the same terms in the Hedays, vol. 1, P.