Roshan and Wahida v. Abukamal Civ. Cas. 11-A-70

 

Roshan and Wahida v. Abukamal Civ. Cas. 11-A-70 ; 9/9/71; Kwikima, Ag. J.

The 1^st plaintiff sued the defendant for maintenance arrears of maintenance and accouchement fees in respect of the delivery of their daughter who was the 2^nd plaintiff. The spouses were married in 1954 according to Islamic rules of the Sunni Hanafi sect. the plaintiff claimed that her husband deserted her by removing her from he matrimonial home and taking her back to her own people. The defendant established that he wrote out three talaks on a court from which he sent by registered post to eh plaintiff. He claimed that the effect of the talaks was that he had divorced his wife in accordance with Islamic Law. The court framed the following issues for determination (1) was the 1^st plaintiff deserted or divorced; (2) Is she entitled to maintenance or expenses; and (3) Can an offspring of the marriage sue the father for its upkeep?

            Held: (1) “The plaintiff was divorced rather than deserted when the defendant returned her to her people and mailed the talak to her by registered post …………….” (2) “The …………. Issue whether the divorcee was entitled to any maintenance subsequent to her divorce is so straight forward that it need not detain us here. The only time during which the divorcee was entitled to any maintenance subsequent to her divorce is so straight forward that it need not detain us here. The only time during which the divorcee was entitled to maintenance was when she observed idda if she did this at all. Be that as it may, the plaintiff has not been shown to have failed to observe idda. She would for this reason be entitled to arrears of maintenance during the three months following

her divorce. This is all the maintenance she could claim on her own behalf if she was not suckling the child.” (3) “With respect to the plaintiff, I do not think that her daughter can be joined in suit to recover arrears of, or to secure maintenance from her own father. The Law of the state may allow her to sue as minor through her next friend but the action to recover damages from a father is not maintainable by a child. What the court can do is to make provision for a child’s maintenance if custody id granted to the mother. This is not being the case (sic) and I cannot see how a child could take his father to court to make him maintain it. I would therefore resolve this issue in favour of the defendant and hold that the second plaintiff has no capacity to sue.” (4) “The plaintiff alleges and the defendant ha snot denied, that the child is issue of the marriage. It therefore goes to reason that the defendant should pay fees for the delivery of the child. The plaintiff will further be entitled to arrears of maintenance at the rate of Shs. 50/- per month from the date of her divorce tot eh time of judgment. These arrears are the contributions which the defendant should have made for the upkeep of his former wife during the period of idda and when she was nursing the child who was born out of their marriage.”