P L D 1960 (W (PLP)

Mr. Z. P. Naqvi, the learned counsel for the appellants, and Mr. S. B. H. Zaidi, the learned counsel for the respondents, have taken me through the entire evidence in the two appeals. As already observed, the appellants filed the two suits against their husbands for dissolution of marriage on the ground that husbands having failed to maintain them for over two years before the filing of their suits. It was admitted by the counsel for the parties that non‑maintenance for a period of two years by itself is not sufficient for dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939. They admitted that under the Act the neglect or failure on the part of the husband to provide maintenance must be established before the wife can expect to succeed in a suit for dissolu tion of marriage on this ground. It was, therefore, incumbent on the appellants to show that there was a duty cast upon the respondents to provide them maintenance which they had failed or neglected to do. It is well settled rule of Muhammadan Law that a wife is entitled to stay away from her husband if there is reasonable cause for her to do so. Amongst others, maltreatment by a husband is a ground on which the wife can refuse to go to her husband's house. Another ground on which she can refuse to go to her husband's house is the non‑payment of the prompt dower. All the Muslims Jurists are unanimous on the point that the right of maintenance of a wife cannot be defeated if she has demanded her prompt dower and her husband has not paid her. In Hamilton's Hadaya Book IV, Volume I, Chapter XV at page 141 it is stated: " If a woman refuses to surrender herself to her husband, on account of her dower (that is on account of its not having been paid to her), her maintenance does not drop, but is incumbent upon the husband, although she be not yet within his custody, since her refusal is only in pursuance of her right, and consequently the objection to the matrimonial custody originates with the husband ". In Baillie's Digest of Muhammadan Law, Book VI at page 441 it is stated: "When an adult woman, who has not yet removed to her husband's house, asks for maintenance, she is entitled to it unless he has called upon her to remove: and the futwa is in accordance with this view, though the lawyers of Bulkh have said that she is not entitled till actual removal. If, when called upon to remove to his house, she refused to do so of right, that is, to obtain payment of her dower, she is entitled to maintenance; but if she refuses to do so without right, as when her dower is paid, or deferred or has been given to her husband, she has no claim to maintenance ". Ameer Ali in his book on Muhammadan Law, Volume II, at page 406 has stated in unmistakeable terms that the husband is bound to maintain his wife even if she is residing in her father's house provided she has valid or justifiable reason such as the non‑payment of prompt dower or illness. This view was accepted by Manohar Lal, J. Najiman Nissa Begum v. Serajuddin Ahmad Khan (A I R 1946 Pat. 467) and by a Division Bench of the Dacca High Court in Nur‑ud‑Din Ahmad v. Masudha Khanam (P L D 1957 Dacca 242) Rehman, J. in the Dacca case observed: "It is incumbent on a husband to maintain his wife and he is not absolved of his liability to maintain her even though she be not residing with him provided she has a lawful excuse or a legal right to refuse to live with her husband, e.g. on account of non‑payment of prompt dower ". He further observed: " The right to prompt dower given to a wife is a right which cannot be defeated by the husband even on the ground of his being denied the society of his wife. The wife is under the Muhammadan Law entitled to refuse herself to her husband until and unless the prompt dower is paid to her." The view expressed by Rehman, J. is in consonance with the well established principle of Muhammadan Law on this point. It also appears to me that under the Muslim Law it is the duty of a husband to maintain his wife at her parents' house. But he is absolved from this responsibility if she denies him the society without any justifiable cause such as non‑payment of prompt dower or illness or maltreatment. The question, therefore, arises whether on, the facts proved in this case the two appellants are entitled to a decree for dissolution of marriage on account of non‑maintenance by respondents for more than two years. Before dealing with this aspect of the case, I will dispose .of the appellants' case that they were maltreated and forcibly turned out by the respondents from their house. The respondents have denied this allegation. Their version is that both the appellants went to the house of their father who was ailing and thereafter refused to return to their house in spite of repeated requests and persuasions. The evidence of the parties in both the cases consists of practically the same witnesses. The appellants examined them selves, their father Babu Khan, P. W. Muhammad Hanif and P. W. Abdul Jalil in support of their contentions whereas the respondents examined themselves, D. W. Allahbux, D. W. Fakhruddin and D. W. Rahat Hussain in support of their contentions. I had some doubt about the version of the respon dents that in February 1954 Salimuddin took his wife and the wife of his brother Jamiluddin to the house of the appellants' father as he was seriously ill and left the two appellants there and that when in the evening he went to bring them back they refused to come, as it was for the first time put forward by the respondents during the course of the trial of the suits, and is contradicted by the position taken by them in Criminal Case No. 162/1955 decided on 19th December 1955 by Mr. Saifuddin F. Siddiki, Sub‑Judge and A. C. M., Hyderabad on a complaint under section 363, P. P. C. by appellant Alhamdi Begum. In the criminal complaint Salimuddin did not state that he left the two appellants at the house of their parents but stated that his wife took one hour's leave from him to go to her father's house. But' as there is concurrent findings of fact on the question of cruelty and maltreatment, it is necessary for the appellants to satisfy me that it was not based on proper appreciation of the evidence. The learned counsel for the appellants has failed in' this respect. I therefore decline to interfere with the finding of facts of both the Courts below on this aspect of the case. On the second question whether the appellants were justified in staying in the house of their father on account of non -payment of prompt dower, the learned District Judge has not taken any different view of the law on the point. But he did not accept the plea of the appellants that their husbands refused to pay the prompt dower before the filing of the suits. I have already reproduced the observations of the learned District Judge on this question. This reasoning was expressed by him in both the appeals. It appears to me that the learned District Judge failed to appreciate and to grasp the case of the appellants and the evidence led by them in support of their contention that they demanded the payment of prompt dower from the respondents lastly in December 1955 before the institution of the above‑mentioned two suits. The learned counsel for the respondents has not challenged before me the concurrent finding of the Courts below that Rs. 1,000 was settled as prompt dower at the time of the marriage in the two appeals. But the fact remains that both the respondents' case before the trial Court was that Rs. 30 was settled as dower and Rs. 1,000 was not settled as prompt dower between the parties. This plea was obviously false on the recital of the " Kabin nama " executed by the two respondents in favour of the two appellants, which shows that Rs. 1,000 was settled as prompt dower. ` This fact was further acknowledged by them in an agreement executed by them in 1951 (Exh. 22). It was admitted in the agreement that the relationship between the parties from the beginning was not very happy. The appellants on more than one occasion have stayed at their parents' house on account of certain differences with the respondents. The elders of the family brought about reconciliation between them and on each occasion they had to execute an agreement for good behaviour. Exh. 22 is one of those agreements. In this agreement both the respondents admitted that Rs. 1,000 was the prompt dower and they undertook to dis charge this obligation on demand. But in spite of this respondents denied their liability to pay Rs. 1,000 as prompt dower. The learned District Judge did not take into consideration this attitude of the respondents, while deciding the question whether the appellants made any demand for prompt dower or not. His finding that the appellants did not demand dower from the respondents before the institution of the suits is not warranted on the evidence produced in the two cases. P. W. Mst. Muhammadi in Suit No. 40/1956 as her own witness stated: " The defendant has not given me any Mehar though I demanded it from him ". In cross‑examination she stated: " I have not given any notice to my husband demanding any dower ". Similarly, P. W. Mst. Alhamdi in Suit No. 39/1956 as here own witness stated:‑ " My ` Mehar (dower) was Rs. 1,000 which was prompt. The defendant did not pay the dower ". In cross‑examination she stated: " Perhaps I have notices to defendant. Notices to defendant demanding maintenance. I do not know how many notices I gave. I have copies of those notices as well as postal and acknowledgement receipts ". Both the appellants examined their father P. W. Babu Khan in support of the contention that prompt dower was demanded from the respondents before the institution of the suits. He stated in Suit No. 39 of 1956 in his examination‑in‑chief: " The plaintiff several, times demanded her Mahar and served defendant with notices but he did not pay up ". In cross‑examination he stated " I had given notice of demand for dower through advocate. I have copy of the notice and acknowledgement receipts ". To the same effect he stated in Suit No. 40/1956. , He stated: " My daughter demanded her prompt dower but defendant refused to give her the same ". In cross‑examination he stated "I gave 3‑4 notices to the defendant for prompt dower. The first was six years ago. I have copies of such notices ". So on this aspect of the case both the appellants stated on oath that they demanded prompt dower before the institution of the suits and they were supported in this respect by their father P. W. Babu Khan. Curiously enough both the respon dents did not deny this allegation on oath in the two suits before the trial Court. In my opinion, the allegation of the appellants on this question remained unrebutted and the learned District Judge was not justified to hold that they have satis factorily failed to prove their allegation that before filing the suits demanded the prompt dower. In view of this the finding of the learned Subordinate Judge on the question was fully justified and correct. It, however, appears to me that the real question is not whether the appellants demanded the prompt dower before the institution of the suits. The real question for determination in a suit for dissolution of marriage far non‑maintenance for over two years is whether a wife had reasonable excuse to stay away from her husband and whether it was the duty of the husband to maintain her on such excuse. I have no doubt in my mind, on the evidence produced on the record, that, the dower between the parties in both the cases was Rs. 1,000 as prompt dower, that the respondents undertook to pay this amount in the agreement Exh: 22 executed by them m 1951 and I accept the version of the appellants' father Babu Khan that one of the reasons that the appellants stayed away from them was that their prompt dower was not paid by the respon dents. On this view of the matter it is quite clear to me that under the Muhammadan Law the respondents were bound to maintain the appellants at their father's house. As the respondents failed to maintain them for two years before the institution of the suits, the learned Subordinate Court was fully justified in granting the appellants a decree for dissolution of marriage. Accordingly I reverse the decree of the learned District Judge and restore the judgment and decree of the learned Subordinate Judge in respect of the appellants' claim for dissolution of marriage. Whatever may be the view on the question whether the appellants were entitled to dissolution of marriage on the ground of non‑maintenance, it is not clear to me why the learned District Judge upset the decree for Rs. 1,000 each in the two suits granted to the appellants for prompt dower due to them from the respondents. It was urged by Mr. Zaidi that the claim for prompt dower is barred by limitation. This contention does not appear to be well‑founded. The appellants, according to the respondents, stayed with their father from February 1954. Thereafter the dower must have been demanded and as the true suits were filed in 1956, the claim of the appellants is well within time. Accordingly I reverse the order of the learned District Judge and restore the judgment of the Subordinate Judge in this respect also. It will be noted that during the course of the arguments I suggested to the respondents' counsel to deposit the amount of dower in Court, but he did not take any notice of it. This fact leaves no doubt in my mind that the respondents were never ready and willing to discharge their obligation in this respect and avoiding it on false pleas. For the reasons given above, the two appeals are allowed with costs throughout. A. H. Appeals allowed.