P L D 1959 (W (PLP)

Siraj‑ud‑Din Ahmad for Appellant. Ch. Muhammad Sadig for Respondent. Date of hearing : 13th March 1959. This judgment will dispose of Regular Second Appeals Nos. 31 and 32 of 1957, which arise out of suits for dissolution and resti tution of conjugal rights. The parties were married in 1952. In April 1955, the wife filed a suit for dissolution which was dismissed in default. On the 4th of August 1955, the husband filed a suit for restitution, and on the 1st October 1955, the wife filed a second suit for dissolution. The wife stated in the suit for dissolution that after she had lived with her husband for about three months she had been beaten and turned out. She claimed dissolution on the following grounds ; (1) She had not been maintained for a period of more than two years. (2) The husband had failed to perform the marital obliga tions for more than three years. (3) The husband was associating with women of illrepute and leading an immoral life. (4) Cruelty.

2. The husband stated that after marriage they had lived together for about six or seven months, when the parents of his wife came and took her away for her participation in some marriage. Since then, she had never returned to him in spite of the fact that he had taken a deputation to her.

3. Both the suits were consolidated and evidence was record ed only in one of the suits. The trial Court decreed the suit for dissolution on two grounds; (() that the husband had failed to pay maintenance for a period of two years and (2) that the husband had made the wife's life miserable, i.e., there was a con tinuous cruelty.

4. On appeal, the learned District Judge held that there was no proof of cruelty and that the wife had been living separately from her husband without any reasonable cause. On these find ings, he dismissed the suit for dissolution and decreed the suit for restitution of conjugal rights. Both these appeals have been filed by the wife.

5. The first point urged on behalf of wife is that it being admitted that she had not been maintained for a period of more than two years by the husband, it was for the husband to prove that she was for some reasons disentitled to maintenance. It was contended that a Muslim wife is always entitled to maintenance unless it is proved that she has, in some way, been guilty of con duct which disentitles her to it, and in the present case, this has not been proved. A general proposition has been put forward that in all cases where the factum of the wife not having been maintained by the husband for more than two years is proved, the suit of the wife should succeed unless it is positively established that the wife was not for that period entitled to maintenance. I am not prepared to agree that the mere fact that a wife has been living apart from the husband and the husband has not sent any money to her will entitle the wife to a decree till her misconduct was proved. A plaintiff who wants to get a decree from Court has to establish the facts on the basis of which he would be entitled to a decree in accordance with law. In accordance with section 2 (ii) of the Dissolution of Marriages Act, a wife is entitled to a decree for dissolution "if the husband has neglected or has failed to provide for her maintenance for a period of two years". The first point to consider is this. If all that is proved be that the wife has lived separately from the husband for more than two years and he has not sent any money to her for her maintenance has he neglected or failed to maintain her ? The answer depends upon the meaning of the word "maintenance". If "maintenance" means providing with money; which is enough for maintenance, then surely there is neglect or failure to maintain. But does under Muslim Law, the duty of the husband always mean payment of money for maintenance ? I have little hesitation in answering the question in the negative. The duty of the husband to maintain his wife is only this that he is to give the wife food and clothing) and a place for residence. Under ordinary circumstances, the` food, clothing and residence is to be provided at the house of the husband and there will be no failure to maintain unless the husband is not prepared or refuses to give her food and clothing C at his own house. It is only in exceptional circumstances that there would be a duty cast on the husband to pay maintenance in cash. This will happen, for instance, where under his direction the wife is living separately.

6. If all that a wife proves is that she lived separately from her husband for more than two years it would not necessarily mean that the husband has neglected her or failed to maintain her. She may have come away from him against his wishes. She may have come away from him with his consent only for a short period. True, she may have been turned out or she may have come away because of improper conduct or attitude of the husband, but we cannot presume that this is so. It may be that the husband is to blame but may be that he is not. It is wife who wants a decree. She has to satisfy the mind of the Judge of the failure of the husband in his duty. It should be kept in mind that it is only when the husband fails in the duty imposed) on him by Muhammadan Law to maintain the wife that a decree' for dissolution can be granted. The question which we have puts to ourselves is this : Was the husband bound under the circum stances either to approach the wife for going back to him or to send her maintenance in cash ? The answer will depend upon the particular circumstances of each case, and it will not be easy to lay down any hard and fast rules. But the wife has to prove her case and the Court has to reach a positive conclusion in her favour, although that conclusion may be based only on circum stances and although proof of circumstances may be provided by the sole word of the plaintiff. The conclusion may be based even on the attitude of the defendant. It may not need very strong evidence, but the conclusion has to be a positive one. I reject the contention of learned counsel for the appellant that unless the wife was held disentitled to maintenance on account of her conduct, I should hold that there was failure to maintain.

7. While the wife fails on this point, there is another ground on which she should succeed. In the suit for restitution of con jugal rights, she raised a plea that her dower, the amount of which was Rs. 700, had not been paid the husband pleaded that the dower had been fixed at only Rs. 32‑8‑0, and the debt had already been discharged. In the witness‑box, he first said that it had been paid on the very first 'night of the marriage and then retracted the statement and said that it had been abandoned by the wife. Both the lower Courts have held that the dower was Rs. 700 and that no part of it had been paid. But they held, at the same time, that non‑payment of dower was no ground for refusing restitution where consummation bad taken place.

8. In Mst. Rahim Jan v. Muhammad (P L D 1955 Lah. 122), I fully discussed the question as to the effect of non‑payment of dower and came to the conclusion that the mere fact that the wife had submitted to F consummation created no estoppel against her, and that she was) entitled at any time to refuse restitution of conjugal rights unless her prompt dower was paid. It has been argued on behalf of the husband that this should only lead to an amendment in the decree for restitution of conjugal rights, i.e., the decree should be made conditional on the payment of dower. That is one effect which it should obviously have but there is another effect and a far more important one which it may have. As I have held in the judgment above‑mentioned when the wife makes a demand for dower she becomes entitled to live apart from her husband till her dower is paid and the husband becomes bound to pay her main tenance even though she is living apart from him without any other reasonable cause. In the present case, the learned District Judge has refused a decree for dissolution on the ground that the wife was living apart from the husband without any reasonable ground. That finding has to be accepted, but on the 4th of October 1955, she had filed the written statement in the suit for restitution of conjugal rights wherein she pleaded that her dower had not been paid. Till she made a demand for her dower she was not entitled to live apart from the husband on this ground but the moment she made a demand for dower she became so entitled and , the husband became bound to pay her maintenance in spite of the fact that she was living apart from the husband without good reason. From the time that the husband came to know of this demand he was bound to pay her main tenance in cash. More than three years have elapsed since the demand was made and the wife would obviously be entitled to a decree for dissolution of marriage on the ground that for more than two years she has not been maintained. Learned counsel for the respondent objects to a decree being granted on the basis of this period because it is subsequent to the filing of the suit. True, ordinarily we do not take into consideration facts and circum stances which come into existence after the filing of the suit, but that is not an inviolable rule. I asked learned counsel for the respondent to tell me if he has got any defence to the new suit which may be filed for the period since the 1St of October 1955. He is unable to suggest any defence to such a suit and I do not see why I should force the parties to another litigation the result of which is already known. I hold that the wife is entitled to a decree for dissolution on account of non‑maintenance for a period of more than two years.

9. Both these appeals are accepted. The suit for dissolu tion is decreed and the suit for restitution is dismissed, but the parties are left to bear their own costs throughout. A. H. Appeals accepted.