P (PLP)

(b) Dissolution of Muslim Marriages Act (VIII of 1939)--Notification No. 39, dated 1st June, 1943‑Opportunity given to husband to maintain wife‑Duration of time not fixed‑Time till conclusion of suit regarded as Period fixed for payment of maintenance‑Husband cannot take advantage of failure to fix time. The purpose of the Notification in requiring the fixation of a period is two‑fold. Firstly to create an opportunity for the husband to maintain his wife and secondly for the Court to watch the behaviour of the husband to provide for her livelihood. If these objects could be fulfilled without fixing a duration for it, it would be deemed as if the letter of the law had been observed. JUDGMENT.‑This is second appeal arising out of the judg ment and decree for the dissolution of marriage awarded by the District Judge Bahawalpur under Sub‑Clauses (2) and (4) of the Act VIII of 1939, reversing the judgment and decree passed by the trial court, for the dismissal of the suit. The suit for the dissolution of marriage was brought by Mst. Mukhtiar Begum plaintiff, respondent on various grounds against Allah Diwaya defendant‑appellant who contested every contention raised therein. In accordance with the pleadings of the parties the trial Court framed seven issues. The learned District judge decreed the suit by accepting the appeal of the plaintiff on two grounds ; firstly that the defendant had failed to perform marital obligations for a period of three years and secondly, that he had not given maintenance allowance ‑,regularly as required to do so by the trial Court. The learned counsel for the appellant admitted that the case of his client was now reduced to the above‑stated issues‑decided by the District judge in favour of the respondent. A preliminary issue was raised by the learned counsel for the respondent that the finding of the District judge on the issue of non‑performance of marital obligations was based on facts and it could not be interfered with in second appeal. He has cited 1929 Penal Code pp. 190, 152 and

280. The rule of law is well‑established that the first Appellate Court having considered all the evidence on the file, a finding of facts recorded by it, shall be final even though the second Appellate Court may be inclined to draw contrary conclusions from the same facts. In the present case the testimonies of the parties to the suit were taken into consideration and the' evidence was held conclusive for the obvious reason that the fact of, observing marital obligations could only be within the knowledge of husband and wife. The respondent in her statement affirmed that for more than three years the appellant did not have conjugal relations with ‑her on account of his second marriage, which had spelled disaffection between them. This assertion was not cortroverted by the‑ appellant in his statement. The learned Sessions judge also took into account the evidence of the other witnesses and then delivered his finding of fact. Under these circumstances I would not reopen the discussion of evidence and would maintain the finding of the learned District Judge. The second issue is based on the amended law which was gazetted on the 1st rune 1943 by Notification No :

39. It altered the provisions of Sub -Clause (2) of the Act VIII of 1939, and it prescribed the following main conditions before a decree for dissolution of marriage could be awarded. (1) That a husband who was negligent in maintaining his wife who was, according to Shariat, not disentitled to the maintenance allowance, should be afforded an opportunity to improve his conduct ; and, (2) he may be allowed a duration till the next hearing of the suit to begin giving maintenance allowance. If he failed to comply with 'the order of the Court, his marriage should be dissolved. In accordance with the provisions of this Notification the trial Court recorded evidence and after finding the respondent deserving of the maintenance allowance ordered the appellant on the 6th February 1949 to give her allowance according to his financial means. The appellant sent Rs. 20 on 19th August 1949, 10th October 1949, 2nd‑ February 1950 and 10th March 1950 which were accepted by the respondent. He however failed to send her any allowance between the period of 6th Feb ruary 1949 i.e. the date of the order and 14th August 1949, the date of his first installment'. He again neglected to send any allowance after 10th March 1950 till the close of the evidence on 6th May 1950: The question would arise whether under the circumstances the vacuum created by the appellant in not sending the allowance regularly was an infringement of the said Notification ? His learned counsel has argued that the appellant was only bound to send allowance till the duration fixed by the Court. The order of the Court dated 6th February, 1949 did not impose‑any time limit for the regular despatch of the allowance. Obviously, the fixation of a period would have been an unavoidable 4pondltion,if the‑suit was brought under Sub Clause (2) only and not under other Sub‑Clause as well. The Court would have then adjourned the suit for a determinate time on the expiry of which it would decide whether the allowance was regularly remitted or not ? But in a suit in which additional grounds under Act VIII were joined with under Sub‑Clause (2) then in the absence of any duration fixed by Court, the time spent in the conclusion of the suit would be regarded as the equitable period so fixed for the purpose. The reason for that is very simple. The law exisages the observance of improvement in the behaviour of a husband and regards the payment of maintenance allowance as the essential term of marriage contract provided the wife has been found un‑erring in the eye of Shariat. The purpose of the said Notification in requiring the fixation of a period is two‑fold. Firstly, to create an opportunity for the husband to maintain his wife and secondly, for the Court to watch the behaviour of the husband to provide for her livelihood. If these objects could be fulfilled without fixing a duration for it, it would be deemed as if the letter of the law had been observed. In this case the suit lingered on for a long time, and the appellant could not say that he had no opportunity to obey the order of the Court. Hence the appellant having been proved delinquent under the amended Sub -Clause (2) the marriage was justly dissolved by the District Judge and I therefore reject this appeal with costs. Announced, K. M. A. Appeal dismissed.