P L D 1969 Dacca 548 (PLP)

"Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill‑treatment or . . . . " The section makes it clear that the conduct on the part of the husband, which renders her life miserable is sufficient to attract this provision of the law and it is not necessary that the treatment has to be accompanied by some assaults on her. An isolated slap or a trivial blow by a loving husband may not come within the mischief of this subsection, provided there are adequate materials to interpret the same in a different way‑. The entire bundle of circumstances and the back ground of such occurrence as well as the effect on the life and the physical and mental well being of the wife has to be considered in arriving at a finding whether the wife's‑ life was rendered miserable thereby or not. From this stand point it cannot be said that the finding of the Court of appeal below is erroneous. The evidence of the wife in this case if believed and I have not found any sufficient reason why the same should be disbelieved then that establishes a case of gross cruelty which clearly entitles the wife to a dissolution of the marriage in terms of section 2 (viii) (a) of this Act. The above view that I have taken does not go counter to the definition of cruelty as given by the law lords in the case cited above though the words used in the Matrimonial Case Act, 1937 and the Divorce (Scotland) Act 1938 are different than those under consideration in the instant case. Mr. Roy has next cited Verse 34, Sura 4 from the Holy Qur'an and has submitted that the Holy Qur'an has even permitted leading of woman. The Verse 34, Sura 4 is as follows:‑ This Verse has been translated by Moulana Abdullah Yusuf Ali in Vol. 1, page 190: - Men are the protectors And maintainers of woman, Because God has given The one more (strength) Than the other, and because They support them From their means. Therefore the righteous women Are devoutly obedient, and guard In (the husband's) absence What God would have them guard. As to those women On whose part ye fear Disloyalty and ill‑conduct, Admonish them (first), (Next), refuse to share their beds, (And last) beat them (lightly);' But if they return to obedience, Seek not against them Means (of annoyance); For God is Most High, Great (above you all). It is obvious that this Surah of the Holy Qur'an speaks of slight beating but that is spoken of in a case of an apprehension of disloyalty and ill‑conduct (desertion) where the fault is entirely of heirs and all previous attempts to dissuade her from following the evil path has failed. But it is not the case here and the reference to this Surah is entirely misconceived. In that view of the matter, I am of opinion, that this Verse of the Holy Qur'an does not in any way help Mr. Roy. The point, therefore, raised by R. Roy in this regard is bound to fail. Mr. Roy, the learned Advocate for the appellant, then contended that the view taken by the lower appellate Court with regard to non‑payment of maintenance is clearly erroneous and should be set aside. The lower appellate Court with regard to the wife's plea of non‑payment of maintenance has observed as follows: ‑ "Considering the materials on record and other circumstances I have reason to hold that the plaintiff has been living in the house of her brother for more than 2 years prior to the institu tion of the suit and it is nobody's case that any maintenance was given to the plaintiff during this period. It is well settled in 8 D L R 51 that in order to succeed in a suit for dissolu tion of marriage all that a woman is required to do is to establish that for two years immediately proceeding the suit her husband has not provided for her maintenance and the courts have not to go into the question whether the woman herself had contributed towards the failure of her husband to provide maintenance for her or to render conjugal right to him is also no ground for refusing her claim for dissolu tion. So, I hold that non‑payment of maintenance for more than 2 years by the defendant husband is a sufficient ground which entitles the plaintiff wife to have dissolution of marriage." A Division Bench of the Lahore High Court in the case of Mst. Aishan Bibi v. Sain (10 D L R Lah. 7), in my opinion correctly stated the law on this point. His Lordship Mr. Justice Md. Munir, Chief Justice with whom Mr. Justice Md. Jan concurred, observed as follows: ‑ "Now it seems to me to be clear not only from the history but also from the terms of the provisions of Act VIII of 1939 that this Act, while it codifies Muslim Law on certain points, is only supplementary to certain other rules of that law, the validity of which it assumes and recognises. In the first place, the Act applies only to Muslims and was intended to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under the Muslim Law." Again his Lordship observed:‑ "On a plain interpretation of the Act, therefore, I see no difficulty in holding, and such finding would be consistent with all well accepted principles that if by reason of the wife's conduct the husband was under no obligation to pay her maintenance, the former cannot make the alleged non‑payment a ground for dissolution of her marriage under the Act." This view has been respectfully concurred to and followed by this Court in the case of Nuruddin Ahmad v. Masuda Khanam (9 D L R. 8) Mr. Justice Hamoodur Rahman with whom Amin Ahmad, A. C. J. concurred observed as follows: ‑ "As observed by his Lordship, even apart from the provisions of the Muhammadan Law as they stood prior to the passing of Dissolution of Muslim Marriages Act, 1939, under the language of the said Act itself, a neglect or failure on the part of the husband to provide maintenance has to be established before the wife can expect to succeed in a suit for dissolution of her marriage on this ground. A neglect or a failure to do something naturally connotes that there is a duty cost upon the person to do that thing which he has failed or neglected to do. This automatically leads us to the enquiry us to what that duty is. The Dissolution of Muslim Marriages Act, 1939, does not prescribe what that duty is, and as such the only source from which the extent and the nature of the said duty can be ascertained must necessarily be the Muhammadan Law on the subject, which being the personal law governing the relationship of Muslims in this country, is the only law to which recourse can be had for this purpose. From this point of view also, the above words of the statute by themselves attract the previous Muhammadan Law and it cannot, therefore, be said that the non‑payment simpliciter constitutes a failure or neglect within the meaning of the provisions of clause (ii) of section 2 of the Dissolution of Muslim Marriages Act, 1939." From the above it is obvious that non‑payment of mainten ance by itself is no ground for founding an action for dissolution of marriage under the Muslim Law. In a case where the wife voluntarily runs away from her husband's house without sufficient justification and despite the husband's request to return and live with him she disobeys him and declines to live with him then such a wife cannot be entitled to bring a suit for dissolution of marriage on the ground of want of maintenance for more than two years. It is obvious, therefore, that the proposition of law laid down by the learned Subordinate Judge does not appear to be correctly stated. Fact; however, remains that the case of the wife Firoza Khatun in the present appeal is that she was forced to leave her husband's house five years before the filing of the suit due to his ill‑treatment as well as physical and mental torture and has been living with her brothers and sisters since then and her husband did not have any information of her nor did he give her maintenance. The husband's story that she has been living in her brother's house for nearly two years only and that people from her husband's side went to bring her back at the time of the marriage of the younger brother of the husband was disbelieved by the lower appellate Court. It is not the case of any of the parties that the maintenance was given to the wife during the period of her stay in her brother's house. The lower appellate Court disbelieved the husband's story that an attempt was made once to bring her back to the husband's house which was refused by her. The finding of fact on this point by the lower appellate Court is clearly sustainable. The evidence of the defence witnesses on this point does not inspire confidence and the lower appellate Court is right in holding that she has been living in the house of her brother for more than 2 years prior to the institution of the suit and no maintenance was given to her during this time. The defendant husband has examined three witnesses to prove his case D. W. I is the younger brother of the husband. He has stated in his evidence that in Aswin 1372 B. S. They sent their uncle Manjar Ali to bring her back to attend his marriage D. W. 1 stated that in Aswin, 1371 B/S. he also went to bring her back. But it is curious to notice that nobody saw either him or his uncle to go to bring her back. He admitted that nobody was present at that time when the wife told him that she will not go. D. Ws. 2 and 3 have also tried to support the husband's case by saying that they also went to bring her back D. W. 2 is uncle of the husband, D. W. 3 is also another uncle of the husband. It is be noticed, however, that no evidence has been given about husband's attempt in going to the house of the wife himself and in trying to bring her back. The evidence given on behalf of the defendant attempts to show that an attempt to bring her back was made during the period 2J years before the filling of the suit. The case of the husband is that the wife was prevented from coming to the husband's place by the near relations of the wife. Another reason given on behalf of the defendant for her not coming is that as three children of her died in her husband's house, as such, the wife's mother and brother did not allow her to go to her husbands house. See the evidence of D. W. 2 this will show that according to the husband a refusal on the part of the wife does not establish a case of disobedience on her part. Even if this case as made out by the husband's side is accepted even then it will show that there was no justification on the part of the husband in not providing her with normal maintenance as she was entitled to under the Muslim Law. It is not a case of refusal on the part of the wife to stay with the husband and to perform her lawful obligations under the marriage contract but is a case where she was prevented from doing so due to the obstacle and hindrance by her brothers and sisters. Moreover, the' Court of appeal below found that he F life was rendered miserable by the cruelty of conduct on the part of the husband. In that view of the matter, I am inclined to hold that nothing has been proved on behalf of the husband to show that she was disentitled by her conduct to receive her normal and ordinary maintenance for a period of more than two years during the time she was staying with her brothers and sisters. On this ground also the wife is entitled to get a decree for dissolution of her marriage. These are the only points raised in this case by the learned Advocate for the appellant and as I have already found them to be without any substance they are, therefore, rejected. The result, therefore, is that these appeals are dismissed with costs. The connected Rules Nos. 1151(s) and 1152 (s) of 1967 are discharged without any order as to costs. Leave under clause 15 of the Letters Patents prayed for is refused. A. E. Appeals dismissed.