P L D 1953 Azad J (PLP)

ABDUL MAJID, C. J.‑This is a Second appeal from the judgment of the learned District Judge, Mirpur upholding the dismissal of the plaintiff's suit for dissolution of her marriage. The plaintiff Mst. Reshman brought a suit against her husband Sher for dissolution of her marriage. Her allegations were (a) that her husband had neglected to provide for her maintenance for a period of two years; (b) that her husband had failed to perform without reasonable cause his marital obligations for a period of three years; (c) arid that he had married another wife and did not treat her In accordance with the injunctions of the Holy Quran. The suit was resisted by Sher who denied all the allegations made by the plaintiff. The trial Court end the lower appellate Court found that the plaintiff had been living separately from her husband in the house of her parents for five years. but the failure of the defendant to maintain the plaintiff within that period was due to disobedience of the plaintiff and h‑r refusal to go back to the defendant. In the circumstances, it could not be said that the plaintiff was entitled to dissolution of marriage on the facts found because the husband's failure to maintain her had occur red under circumstances in which on account of her conduct she was not entitled in law to sustain a claim for maintenance and hence the failure was not a ground for dissolution by virtue of clause (ii) of section 2 of the Dissolution of Muslim Marriages Act. The question is, whether having regard to the words of clause (ii) once the failure to maintain was proved as a fact, it was necessary to enquire into the causes of that failure. Before the lower Court conflicting decisions were cited to resolve the above question. The lower Courts followed the judgment reported as A I R (31) 1944 Lab. 336 and rejected the principles enunciated in the judgment reported as Pakistan Cases 1950 Sind 18=P L D 1950 Sind

36. The afore‑mentioned judgments lave also been cited before me by the counsel on both sides. It was held its the judgment reported as Pakistan Cases 1951 find 18 that where a husband has failed to provide maintenance for his wife for a period oh two years immediately preceding the suit, the wife would be entitled to a dissolution of her marriage under section 2, clause (ii) of the Act in spite of the fact that on account of her conduct in refusing to live with her husband, she was not entitled to enforce any claim for maintenance against the husband in respect of the period during which the husband bad failed to maintain her. The chief reason given for arriving at this decision in this case was that when the enacted words are clear, they must be given effect to and the Courts must not busy themselves with supposed intentions or consequences. The ratio decidendi in the case reported as A I Rat 1944 flab. 336 may be stated in the words of the learned Judges as follows :‑‑ "In the present case a3 I have already stated, it is abundantly clear that the plaintiff for no valid reason has refused to live with her husband and to perform her marital obli gations. That being so, it must be held that the defendant husband was not liable to maintain the plaintiff. As there was no duty to maintain, it cannot he held that the husband had either neglected to provide maintenance for his wife or had failed to do so for a period of two years. The view which I take of subsection (2) of section 2, Dissolution of Muslim Marriage Act, is the same as that taken by a learned Single .fudge of the Sind Chief Court in Kandjan v. Abdullah (I L R 1942 Kar. 535). Further a Bench of Allahabad High Court In Badr‑ul‑Nisa v. Muhammad Yusaf (A I R 1944 All. 23), came to the same conclusion. In that case it was held that the word "neglect" in section 2, Dissolution of Muslim Marriages Act Implied wilful failure and that the words "has failed to provide" though not very happy words, Implied an omission of duty. Consequently, where the wife through her own conduct led the husband to stop maintenance, the Court would not allow dissolution of marriage for that would be giving her a benefit if benefit it could be called arising from he wrongful acts. Where the wife or her parents were entirely to blame and no blame attached to the husband, it could not be said that the husband had failed to provide far the maintenance of the wife. The facts of this Allahabad case are very similar to the facts of the case before us. To hold otherwise would result in a somewhat startling state of affairs: Having very carefully considered the reasoning in these two cases, I cannot help agreeing with the view taken in the case reported as 1950 Pakistan Cases Sind

18. The plain ordinary meaning of the words "has failed to provide maintenance" in Clause (ii) appears to me to be very clear. The question whether . w there was a failure to maintain is pure question of fact which does not in any manner depend upon the circumstances in which the failure had occurred. The Muslim Law does not require the wife to beg the husband for maintaining her. On the other hand, it expects every husband to maintain his wife as long as the marriage subtlsts even when the wife's conduct is such as to induce him to refuse to maintain her. If the Muslim husbands are allowed to take second wife in the presence of the first wife and ignore the maintenance of the first wife for any fault on the part of the first wife then it would mean that the first wife shall never be able to exercise the right given to her for the dissolution of marriage on any ground whatsoever. It will be brushed aside on the ground that she did not try to pull on with her husband who had married a second wife and served the second wife like a maid. servant. It is generally found that In this country, people marry a second wife merely as a matter of fun and not as a matter of necessity which is against the spirit of the injunctions laid down in the Holy Quran. It is true that the Holy Quran allows a Muslim to have four wives at one and the same time, but the restrictions placed on this action practically make it impossible to marry a second wife in the presence of first wife because the husband is not in a position to meet the same treatment In the matter of love, maintenance and other comforts to two wives at one and the same time. I therefore, prefer to follow the decision arrived at in the case reported as Pakistan Cases 1950, Sind

18. In view of what has been stated above, I accept the appeal and setting aside the decision of both the Courts below, decree the plaintiff's suit with costs. Pleader fee shall be Re. 25 for the purposes of this appeal. Announced. A. H. Appeal accepted.