Second Appeal No. 46 of 1956

14th November, 1956.

Petitioner Counsel: G.B. Joshi,
Respondent Counsel: M.U. Shah, .

Cases Cited:
AIR 1950 Sind 8 (V 37),Pak Cas 1950 Sind 18 [Para 3]
AIR 1943 Sind 65 (V 30),ILR 1942 Kar 535 [Para 4]
AIR 1945 Pesh 51 (V 32),222 Ind Cas 277 [Para 3]
AIR 1949 Pesh 7 (V 36) [Para 3]
AIR 1944 Lah 336 (V 31),ILR (1945) Lah 517 [Para 3]
AIR 1944 All 23 (V 31),ILR 1944 All 27 [Para 3]
AIR 1951 Nag 375 (V 38),1951 Nag LJ 584 [Para 4]
AIR 1947 All 3 (V 34),ILR (1946) All 706 [Para 3]

JUDGMENT

JUDGMENT :-This is a wife's second appeal arising out of her suit against the respondent husband for a dissolution of her marriage under S. 2 of the Saurashtra Dissolution of Muslim Marriages Act, No. XXVI of 1952, the grounds for the dissolution alleged being (1) that she was treated cruelly, (2) that she was not treated equitably in accordance with the injunctions of the Koran, and (3) that the defendant had neglected or had failed to provide for her maintenance for a period of two years prior to the suit. The parties are Mahomedans and were married some time in about 1946-47 and they lived together for about two or three years, after which the plaintiff has gone to live with her parents. The husband's defence was that he had made attempts to bring back the plaintiff to his house and that the plaintiff had, without any justifiable reason, refused to come and live with him, that he had not neglected nor had failed to provide for her maintenance for a period of two years nor had he treated her cruelly nor was there any truth in the allegation that he did not treat her equitably in accordance with the injunctions of the Koran. The learned trial Judge disbelieved the plaintiff's allegation that she had been beaten and driven out by the defendant from his house after depriving her of her clothes and he also disbelieved the defendant's plea that she had left him at the instigation of her brother. He held that after the plaintiff went to live with her parents, the defendant had made efforts two or three times to bring her back to the matrimonial house but that the plaintiff had declined to live with the defendant. But in the learned Judge's opinion, this was not sufficient and that the efforts should have been continued to a period within two years prior to the suit. He disbelieved the allegations of cruelty but held that the defendant had failed to give her equitable treatment in accordance with the injunctions of the Koran. However his decision was rested on the ground contained in S. 2 (ii) of the Saurashtra Dissolution of Muslim Marriages Act, viz., that the defendant had neglected or failed to provide for the plaintiff's maintenance and on this ground he gave a decree for a dissolution of the marriage.

2. On appeal the learned Assistant Judge accepted the trial Court's finding that cruelty was not proved and as regards the inequitable treatment he held that the defendant had married a second wife only a short time prior to the suit during which time the plaintiff was not living with the defendant and there was no occasion for treating the plaintiff not equitably in accordance with the injunction of the Koran. On S. 2 (ii) of the Act the learned appellate Judge held that mere failure to provide for maintenance of the wife did not amount to neglect or failure within the meaning of the said clause and that on a true interpretation of the clause it was necessary to see as to on account of whose fault the provision for the wife's maintenance had not been made. He found on the facts that the husband had made repeated attempts to call back the wife but the wife was recalcitrant and had refused to live with the husband and that in these circumstances it

could not be said that there was any wilful neglect or failure on the part of the husband to provide for the wife's maintenance and, therefore, the requirements of S. 2 (ii) of the Act had not been complied with and the wife was not entitled to a decree for dissolution of the marriage. Accordingly the learned Judge reversed the trial Court's decree and dismissed the suit with costs. The plaintiff has preferred this second appeal.

3. Mr. Joshi appearing for the appellant has not pressed the contention regarding the alleged cruelty of the husband nor the ground under S. 2 (viii) (f) relating to the treatment not being equitable in accordance with the injunctions of the Koran and he has confined the appeal to the ground contained in S. 2 (ii) of the Act. His contention is that this is a suit brought under a specific Statute and the language of the Statute has to be given its natural interpretation and that once it is proved that the defendant has failed to provide for the wife's maintenance then it ipso facto follows that he has neglected or failed to maintain her within the meaning of the said clause, and considerations of the husband's liability to maintain the wife arising under the Mahomedan or Anglo Mahomedan Law do not at all arise and in support of his contention he has relied upon Mt. Noor Bibi v. Pir Bux, AIR 1950 Sind 8 (A). An earlier decision of Lobo, J., in Mt. Khatijan v. Abdulla, AIR 1943 Sind 65 (B), was there dissented from and Tyabji, C. J., held in accordance with his own earlier view, that where a husband has failed to provide maintenance for the wife for a period of two years immediately preceding the suit, the wife would be entitled to a dissolution of her marriage under S. 2 (ii) of the Act in spite of the fact that on account of her conduct in refusing to live with the husband she would not have been entitled to enforce any claim for maintenance against the husband in respect of the period during which the husband had failed to maintain her. He held that considerations of circumstances governing the husband's liability to maintain the wife under the Mahomedan Law were irrelevant to a case under the Dissolution of Muslim Marriages Act, 1939, and that words of the Statute must be given their natural interpretation. He observed -

"As a matter of fact, no abrogation of the Mahomedan Law relating to the maintenance of wives or otherwise is involved in dissolving a marriage, on proof of a husband's failure to maintain his wife, even when the wife had by her conduct disentitled herself from claiming maintenance. The principles upon which maintenance is enforced during the subsistence of a marriage, and those upon which a dissolution is allowed, are entirely different."

And the learned Judge finally held that as the defendant had failed to provide for the maintenance of the plaintiff, Noor Bibi, during two years immediately preceding the suit, the plaintiff was entitled to a dissolution of her marriage under cl. (ii) of S. 2 of the Dissolution of Muslim Marriages Act, regardless of the fact whether she would have been entitled to enforce the claim for maintenance against the husband for that period. Mr. Joshi has next relied on a decision of the Peshawar Judicial Commissioner's Court in Mt. Zainaba v. Abdul Rahman, AIR 1945 Pesh 51 (C). It was also a case under S. 2 (ii) of the Dissolution of Muslim Marriages Act, 1939, and it was held that the general provisions of the Mahomedan Law should not control the Act, and that the Act was expected to be complete by itself. The question whether a woman was entitled to maintenance under the Mahomedan Law would therefore be absolutely foreign to the inquiry under the said Act as to whether a marriage should be dissolved for failure on the part of the husband to pay maintenance. Section 2 (ii) has been deliberately couched in very wide terms so that a woman should be protected in any case and there was no intention whatsoever that the Court should find out whether the woman was entitled to maintenance or not under the Muslim Law before they considered her claim to dissolution of marriage on the ground of failure to pay maintenance. This decision has however been dissented from in a later Peshawar case reported in Fazal Mahmud v. Umatur Rahim, AIR 1949 Pesh 7 (D), and following the decisions in Zafar Hussain v. Mt. Akbari Begum, AIR 1944 Lah 336 (E), and Mt. Badrulnisa Bibi v. Mohammad Yusuf, AIR 1944 All 23 (F), it was held that the Dissolution of Muslim Marriages Act, 1939, was not intended to abrogate the general law applicable to Mahomedans and it is not correct to say that S. 2 (ii) casts upon the husband an absolute duty to maintain his wife. Before a husband can be said to have neglected or failed to provide maintenance for his wife, it must be held that the husband was under a legal duty to provide such maintenance. Where the wife herself refuses to reside with her husband or fails to discharge her marital obligations without any reasonable cause she cannot claim maintenance under the general law applicable to Mahomedans and is not entitled to a divorce on the ground that she was not maintained by the husband.

4. With respect, the view taken by Tyabji, C. J., in AIR 1950 Sind 8 (A), that considerations of circumstances under which the husband's liability to maintain the wife arises are not germane to the enquiry under S. 2 (ii) of the Dissolution of Muslim Marriages Act, is not correct. Even on a plain interpretation of the clause, it seems to me that in order that it could be said that the husband has either neglected or failed to provide for the wife's maintenance, it has to be considered whether in given circumstances there was a duty on the husband to maintain the wife and it is only then that it could be said that the husband has neglected or failed to maintain the wife. The words used in S. 2 (ii) cannot be looked at in isolation and the circumstances in which a duty to maintain the wife arises, are, in my opinion, germane to the enquiry. I am fortified in this view by the decision in AIR 1944 Lah 336 (E), where this question was considered at some length by Harris, C. J., with whom Mahajan, J., concurred. The learned Single Judge against whose judgment an appeal was taken to the Division Bench had construed the words of S. 2 (ii) so as to mean that once a provision for the wife's maintenance is not made for two years prior to the suit for whatever reasons the wife was entitled to a divorce under S. 2 (ii) of the Act. On appeal the learned Chief Justice held that it was not correct to say that S. 2 (ii) casts upon the husband an absolute duty to maintain his wife in all cases and any failure in that duty would be a ground for divorce even if the wife herself was at fault and was really the cause of the husband refusing to maintain her. Before a

husband can be said to have neglected or failed to provide maintenance for his wife, it must be shown that the husband was under a legal duty to provide such maintenance. If the husband was not under Mahomedan or Anglo Mahomedan Law bound to maintain his wife, it cannot be said that he had neglected or failed to maintain her if he sent her no money or other maintenance. A Mahomedan husband is not legally bound to provide maintenance for his wife if the latter without reasonable cause refuses to live with him, disobeys his instructions and declines to cohabit with him as man and wife and the husband's failure to maintain the wife in such circumstances cannot entitle her to a divorce under S. 2 (ii).

5. The same view was taken in Jamila Khatun v. Kasim Ali Abbas Ali, AIR 1951 Nag 375 (G). Justice Mudholkar has there reviewed earlier decisions of various High Courts and also the Sind and Peshawar decisions and has come to the conclusion that in determining whether there has been any neglect or failure on the part of the husband to maintain the wife, the question necessarily arises whether the wife was, at the relevant time, entitled to be provided with maintenance, and that Act 8 of 1939 crystallises a portion of the Muslim Law and it must be taken in conjunction with the whole of the Muslim Law as it stands. The words ''to provide for her maintenance" occurring in S. 2 (ii) imply maintenance only in such circumstances as is allowed under the general Mahomedan Law. Where the wife voluntarily stayed away from her husband's house despite the husband's request to return to his home it cannot be said that there was neglect or failure on the part of the husband to maintain the wife merely because he did not send any money to her during this period and the wife is not entitled to claim divorce. It appears there was an additional circumstance in that case that the husband had offered to maintain the wife in his own house; but that makes no difference to the facts of the present case. In AIR 1944 All 23 (F), a Division Bench consisting of Collister and Bajpai, JJ., held that the word "neglect" occurring in S. 2 (ii) of the Dissolution of Muslim Marriages Act, 8 of 1939, implies wilful failure. The words "has failed to provide" are not very happy, but even they imply an omission of duty. Where the wife through her own conduct leads the husband to stop the maintenance, the Court will not allow dissolution of marriage for that would be giving her a benefit - if benefit it can be called - arising from her own wrongful acts. Where the wife or her parents are entirely to blame and no blame attaches to the husband it cannot be said that the husband has failed to provide for the maintenance of the wife. Therefore, the mere fact of the husband not providing maintenance for the wife will not necessarily imply neglect or failure and the question will arise whether he is under a legal duty to do so, which in other words means whether in the circumstances the wife would be entitled to claim maintenance from him. In another Allahabad case, Mt. Shamin Fatma v. Ahmad Ullah Khan, AIR 1947 All 3 (H), it was held that the provisions of S. 2 (ii) of the Act do not mean that the husband is bound to follow his wife wherever she may go and force money, food or clothes on her. Where the husband's house was open to the wife but she refused to avail herself of the shelter which was offered to her, she cannot complain and is not entitled to a decree for dissolution of marriage on the ground that the husband had failed to maintain her. With respect, I agree with the above decisions of the Lahore, Nagpur and Allahabad High Courts and, in my judgment, the mere fact of an omission to provide for the wife will not ipso facto amount to neglect or failure to provide for the wife's maintenance, as contemplated by S. 2 (ii) of the Act.

6. Therefore it would be necessary to see whether in the given circumstances of a case, there was a duty cast upon the husband to give maintenance to the wife. In the present case, it has been found as a fact that the wife had returned to her parent's house in about 1949-50. As both the lower Courts have found, the husband had not driven out the wife. There is also the finding of both the Courts that the defendant had made two or three attempts to call her back and with that view, the defendant himself as also his father and others had actually gone to the house of the plaintiff's father but she refused to come. These were sincere attempts by the husband to induce the plaintiff to return to him and to discharge her marital obligations but she has consistently spurned his attempts and has refused to return. She has been living with her parents despite the defendant's efforts to bring her back and it is therefore not a case where the husband has failed to invite the wife back to his home. She had no justifiable cause to refuse to live with the defendant and if in these circumstances the defendant did not send her moneys for maintenance, it could not be said that he had neglected or failed to provide for her maintenance within the meaning of S. 2 (ii) of the Act. The learned trial Judge holds that the husband should have continued his efforts to bring her back to a period within two years of the suit, but I do not see how that circumstance is at all material. The fact does remain that the husband has made repeated attempts to call her and she has refused to come. In the circumstances, the requirements of S. 2 (ii) have not been satisfied and the learned Assistant Judge's finding that it was not proved that the defendant had neglected or had failed to provide for the plaintiff's maintenance is correct. This appeal therefore fails and is dismissed with costs. Mr. Joshi has asked for a certificate that the case is a fit one for appeal to the Division Bench, but the consensus of judicial opinion is against the view contended for by Mr. Joshi and I do not consider that this is a fit case for appeal to the Division Bench. The certificate prayed is therefore refused.

Appeal Dismissed