R.N. Misra, J.@mdashThe Defendant-husband is the Appellant against the decree of the appellate Court granting dissolution of marriage in a suit by the Plaintiff, by reversing the decree of the trial Court.
2. The parties got married in April, 1959. It was alleged by the wife that after their marriage the Defendant came and lived with the Plaintiff in her house. About a year after marriage, a son was born to them and that boy has been given away in adoption by the Defendant. The Plaintiff further alleged that the Defendant bad taken to drinking, developed ill contacts and started physically assaulting the Plaintiff on several occasions. He also did not maintain the Plaintiff. In June, 1961 he physically assaulted the Plaintiff and she was laid up for quite a long time on account of injuries sustained by her. From July, 1961 the Defendant went away and kept no contacts with the Plaintiff. His whereabouts were not known to the Plaintiff, nor did he ever provided any maintenance for her. As the Defendant had failed to provide maintenance for more than two years, the wife applied for dissolution of the marriage.
3. The Defendant denied all the allegations made by the Plaintiff. He pleaded that the Plaintiff has started a false case at the instance of her father. He had been providing maintenance for her from time to time. He was devoted to her. The Defendant was satisfied that the Plaintiff was equally devoted to him but on account of the undue intervention of the Plaintiff''s father there has been serious rift on many occasions. The Plaintiff and their Bon should come and live with the Defendant so that there would be no further dispute.
4. The learned trial Judge came to hold that the Plaintiff had failed to estsblish that there was any cruelty to her or that the Defendant was indulging in gambling and had developed drinking habits. The plea of abandonment was also found against. He further found that the Plaintiff had relationship with the Defendant till 1962-63. Then he came to examine the question of maintenance and non-payment thereof. He came to hold that the Defendant had not been paying any maintenance for wen over two years before the suit but the Plaintiff never expected any maintenance as she lived along with her father and was being maintained by him. He accordingly dismissed the action.
5. On Plaintiff''s appeal, the learned Subordinate Judge affirmed the findings regarding absence of cruelty and failure of the Plaintiff to establish that the Defendants indulged in gambling and drinking or that he had abandoned her. He however, came to hold that the Defendant was bound to maintain the Plaintiff and since he had not maintained her for two years before the suit the Plaintiff was entitled to dissolution of marriage under the provisions of Section 2(ii) of the Dissolution of Muslim Marriages Act, 8 of 1939. He accordingly decreed the suit and granted dissolution of marriage. The husband is now in Appeal against this reversing decree.
6. Mr. Pal contends that the learned appellate Judge has clearly gone wrong in coming to hold that the husband was bound to maintain the Plaintiff even if she lived apart wilfully and contrary to the desire or directions of the husband. Wild allegations bad been made in the plaint alleging cruelty, gambling, drinking, abandonment etc. An those have been negatived concurrently by both the Courts below. The learned appellate Judge took a wrong view of the law and illegally granted dissolution of marriage.
7. This leads us to an examination of the provision of Act, 8 of 1939. Several grounds have been provided in Section 2 of the Act for obtaining decree for dissolution of marriage. As far as relevant, the provisions of that section reads as follows:
A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on anyone of more of the following grounds, namely:
(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years.
A sharp division of judicial opinion exists on the interpretation of this provision. The earliest reported decision making an attempt to interpret this provision which was placed during the hearing is the case of Mank Khan v. Mt. Mulkhan Bano AIR 1941 Lab. 167. Beckett, J. held:
Section 2(11) of the Act merely provides that woman married under Muslim law shall be entitled to obtain for the dissolution of her marriage on the ground that the husband has failed to provide for her maintenance for a period of two years. There is nothing in the wording of this clause to suggest that the failure must he wilful and the other clauses show that divorce may be granted on grounds which do not necessarily involve any deliberate default on the part of the husband. That such is the plain meaning of the clause is the view taken my A.C. Ghose in his commentary on the Act. Before the passing of the Act, it had been held that mere inability to maintain a wife was no ground for granting a divorce. The author considers that it is now absolutely immaterial whether the failure to maintain is due to poverty, failing health, less of work or to any other cause whatsoever. I see no reason for differing from him as to the effect of the clause.
Same or similar view was adopted in that Court in two other decisions is the two following cases. Abdul Rashid, J. in the case of Mt. Akbari Begum v. Zafar Hussain AIR 1942 Lah. 92, quoted Beckett, J. with approval and was not prepared to introduce the words "without a reasonable cause" into the section which was adopted in many decisions earlier as a sufficient excuse against a claim of dissolution of marriage by the wife.
Then came a Division Bench decision of that Court in the case of Mt. Zubaida Begum v. Sardar Shah through Saharif Shah. AIR 1943 Lah. 310. Abdul Rashid, J. who haa delivered the judgment in the earlier case also delivered the judgment of the Division Bench. The facts of this case were slightly different. A Mohammedan had two wives. He went to Africa and while he was providing the first wife with home and maintenance, he made no arrangement for the maintenance of the Second wife for more than two years. He wrote to her from Africa to follow him to Africa in order to stay with him but he did not send any money for the passage. The husband wanted to contend that there was reasonable excuse for not providing the maintenance as the second wife had not come to live with him. That defence was turned down.
Then came two more decisions in that Court. The first one is the case of Zafar Hussain v. Mt. Akbari Begum AIR 1944 Lab. 336. This was a Letttlr Patent Appeal from the decision of that Court already referred to in Mt. Akbari Begum v. Zafar Hussain AIR 1942 Lah. 92, on this ocoasion, Chief Justice Harries delivered the judgment of the Bench and Mahajan, J. (as he then was) agreed with him. They over-ruled the single Judge decision and laid down the law in the following way:
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. If the husband was not under Mahomedan or Anglo-Mahomedan law bound to maintain hi wife, how can it be said that he had neglected or failed to maintain her if he sent her no money or other maintenance?
In the next year came the case of Mt. Umat-ul-hafiz v. Talib Hussain AIR 1945 Lah. 56. Abdur Rahman, J. adopted the same view as was indicated by the earlier decision of the Division Bench of that Court and held:
Where the wife has failed to establish that she was ready and willing to perform her part of marital duties during the period in which she bad been living separately from the husband be is under no obligation to maintain her and hence his failure to maintain her in the circumstances does not being the case within the ambit of Section 2(ii) of Act, 8 of 1939.
Then came two decisions in the Sind High Court. A learned Single Judge of that Court held relying upon the earliest decision of the Lahore High Court in Mank Khan v. Me. Mulkhan Bano AIR 1941 Lah. 167.
That for the purpose of Section 2(ii) of that Act whether failure to maintain was due to poverty, failing health, loss of work, imprisonment or any other cause whatsoever immaterial. Once the fact of non-maintenance was established, a decree for dissolution was to follow.
In that Court the matter was examined at considerable length by Division Bench in the Case of Mt. Noor Bibi v. Pir Bux AIR 1950 Sind 8. Tyabji, C.J. delivered the judgment. The view taken by some Courts in a series of reported decisions was reviewed and it was ultimately laid down thus-
Where a husband has failed to provide maintenance for his wife for a period of two years immediately proceeding the suit, the wife would be entitled to a dissolution of her marriage u/s 2(11) 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.
A single Judge decision of the Patna High Court in a case which seems to have arisen from the district of Cuttack in
Where before the institution of a suit by the wife for dissolution of marriage, the wife has not been paid any maintenance for over two years and is not paid any maintenance since the institution of the suit and the attitude of the husband is that he is not bound to pay maintenance unless and until the wife comes and stays with him, the facts come within the mischief of Section 2(ii) and the wife is entitled to dissolution of her marriage.
8. As has been indicated above, the Sind High Court, the earlier decisions of the Lahore High Court and one single Judge decision of the Patna "High Court have adopted the aforesaid view. In the Lahore High Court the view has changed subsequently. The Allahabad, Rajasthan and Nagpur High Courts and the Judicial Commissioner of Peshawar have taken the opposite view. The earliest decision of the Allahabad High Court is a Bench decision in the case of Mt. Bedrulnisa Bibi v. Syed Mohammad Yusuf AIR 1944 An. 23. It was indicated:
The submission is that Clause (ii) does not use the words "without any reasonable cause" and the wife is entitled to a dissolution of the marriage on the mere neglect or the failure of the husband to provide for her maintenance for a period of two years, and this may be with reasonable cause or without reasonable cause. We have given this part of the argument our anxious, consideration, and we are of the opinion that the word ''neglect'' implies wilful failure and it cannot be said that in the present case there was any wilful failure on the'' part of the husband to provide for the maintenance of his wife. The words ''has failed to prove'' 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. It may be that the husband is too poor to maintain the wife and then perhaps it will be open to the wife to claim dissolution of marriage for even in that case there might be some commission of duty on the part of the husband although such omission may be due to circumstances beyond his control. It is to cover such cases that the words ''without reasonable cause'' have been omitted from Clause (ii), but where the wife or her parents are entirely to blame and no blame attaches to the husband it is not possible for the Court to say that the husband has failed to provide for the maintenance of the wife.
This view appears to have held the field in that High Court. It is not necessary to advert to some other decisions in that Court and I would do well to refer to another Bench decision in the case of Smt. Rabia Khatoon v. Mohd. Makhtar Ahmad AIR 1966 All. 548. A number of cases of their own Court as also other Courts were taken Dote of and ultimately they referred to the case in Mt. Noor Bibi v. Pir Bux, and they were of the view that the principle laid down in that decision was not consistent with progressive thought and had not found acceptance in the Courts in India except in Oudh. Their Lordships again stated:
There is no right in the wife to refuse to live with her husband after the marriage has been consumated with her consent. So long as she keeps herself away without the fault of the husband she has no right to claim maintenance from him. If maintenance is not provided by the husband on account of the wife''s wrongful refusal to live with him he cannot be considered guilty of negligence in maintaining her.
Two learned Judges examined the selfsame question in the Judicial Commissioner''s Court at Peshwar in the oase of Fazl Mahmud v. Mt. Umatur Rahim AIR 1949 Peshwar 7. They preferred to adopt the view taken by the Allahabad High Court and concluded:
The act was not intended to abrogate the general law applicable to Mahomedans and it is not correct to say that Section 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 her husband.
Mudholkar, J. (as he then was) examine the self-same question in the Nagpur High Court in the case of Jamila Khatun v. Kasim Ali Abbas Ali AIR 1951 Nag 375. The Bench decision of the Sind High Court was examined at considerable length and he did not agree with the view expressed therein. Examining the Patna decision already referred to he stated:
In that case, the Lahore and Allahabad decisions were distinguished and it was held that a wife who refused to live with her husband because the latter did not pay the prompt dower despite demand and also refused to maintain her for a period of two years, was entitled to a dissolution of marriage. This case is quite distinguishable from the present and is not an authority in support of the proposition contended for on behalf of the Appellant. He ultimately concluded by saying:
With great respect I agree with the view taken by the Allahabad and Lahore High Courts as wen as in the recent decision of the Peshwar Judicial Commissioner''s Court in preference to that taken by Tyabji, C.J. In the circumstances, agreeing with the lower appellate Court, I hold that the Appellant having voluntarily and without justifiable cause refused to live with her husband, the Respondent, even though the latter was willing to maintain her in his house, is not entitled to claim a divorce.
A division Bench of the Rajasthan High Court in the Case of Amir Mohammed v. Mat. Bushra AIR 1956 Raj. 103, also examined the Selfsame question. They indicated:
The failure or neglect to provide maintenance in order to give rise to claim for dissolution must be without any justification. For if there is justification, there cannot be said to be neglect. Neglect or failure implies non-performance of a duty. But if the husband is released from the duty on account of the conduct of the lady herself, the husband cannot be said to have neglected or failed to provide maintenance.
9. There can be no dispute that the wife has a legal obligation to offer herself to her husband and therefore to live with him. He is entitled to her company. Where a wife comes forward to say that she has not been maintained by her husband for two years and is therefore entitled to dissolution of marriage, it would be proper to require her to establish that she was ready and willing to perform her part of the marital duties during the period in which she has been living separately from the husband and yet the husband has neglected to maintain her. The husband''s duty to provide maintenance cannot be absolute and as would appear from a series of decisions indicated above is contingent upon the wife''s readiness and willingness to perform her part. To ask the husband to provide maintenance for a wife who out of her own choice lives apart would certainly be unreasonably and may lead to an unsocial result. The view expressed by the majority of Courts as indicated above thus appears to have laid the law properly and the learned appellate Judge went wrong in following the Sind High Court.
10. The learned appellate Judge in this case has stated:
It is no doubt true that the Defendant was living in the house of his father-in-law as a gharjamai. Though be has stated that be has some landed properties elsewhere, it is not his case that he wanted at any time to stay elsewhere. The Defendant in such circumstances would normally have stayed in the house of his father-in-law. As a matter of fact he has stated that he was maintaining his wife in the house of his father-in-law. So this is not a case where the wife refused to return to her husband or that no opportunity} was given to him to maintain the Plaintiff. In view of the positive stand taken by the Defendant the only question that came up for consideration in the suit was whether the Defendant was giving maintenance to the Plaintiff as stated by him or not. If the answer to the question is in the negative then the Plaintiff must get a decree for dissolution of marriage. Thus the ''question whether the wife is entitled to maintenance or not is a hypothetical question which does not come up for consideration in this suit.
This conclusion of the learned appellate judge appears to be wholly unwarranted. As I have already indicated, there was a specific plea in the written statement that the Defendant was anxious to live separately and wanted the Court''s assistance to extricate the wife and their son from the father-in-law''s house. In Court be has stated:
I told my mother-in-law about one year back to take my wife and child to Cuttack for some months but she refused to allow her daughter to come with me....I had come to my wife six months before the suit was filed. Then my wife expressed that she was willing to come with me. We did not plan to escape from the house of my father-in-law. My wife is major. She has been detained by her father against her will....I have taken a house on rent at Cuttack.
Admittedly, the Defendant has been serving under the State of Orissa as a Class IV employer. There is a positive statement of his that be has taken a house at Cuttack on rent and he wanted his wife to come and live with him. That appears not to have been possible on account of undue interference by the parents of the Plaintiff. The learned appellate Judge has not taken these aspects into consideration when he came to his conclusion which I have already extracted.
I would like to reiterate here what I have stated earlier with reference to the rule laid down by Abdul Rahman, J. in Mt. Umat-ul-hafiz v. Talib Hussain AIR 1945 Lah. 56, that in a suit by the wife for dissolution it would be the duty of the Plaintiff to establish that she was ready and willing to perform her part of the marital duties during the period in which she had been living separately from the husband and yet the husband had failed to maintain her. . In this case the Plaintiff appears to have signally failed to do so.
11. I would, therefore, hold that the view adopted by the lower appellate Court is not on the basis of evidence on record and at any rate, appears to be a conclusion reached with out consideration of the materials. The rule laid down in the Sind High Court appealed to him and therefore the question of examining without reasonable cause did not arise and he appears to have come to the conclusion without a critical examination of the evidence.
The evidence of the Defendant has not been seriously challenged and I do not see any justification not to accept it.
12. On this analysis I am satisfied that the Plaintiff has failed to establish her claim for dissolution of marriage. The decree of the lower appellate Court is contrary to law and is liable to be vacated.
13. I would accordingly allow the appeal, reverse the decree of the lower appellate Court and restore that of the trial Court. Since it is a litigation between the husband and wife I think it appropriate to direct both parties to bear their own costs throughout.
