P L D 1955 Azad J (PLP)

ABDUL MARD, C. J.

‑This is a second appeal from an order of the learned District judge, Mirpur, upholding the decision of the learned Sub‑Judge, Bhimber by which he granted a decree for dissolution of marriage to Mst. Alam Bi against her husband Fazal Ellahi. The facts involved in the case may shortly be stated. The parties were married some 3J years before the institution of the suit. The plaintiff's allegations were that she lived with her husband for six months after marriage and then her husband turned her out from his house. She then took up residence with her widow mother. It was asserted inter alia that the husband had failed to pay her maintenance allowance for more than two years prior to the institution of the suit for dissolution of marriage. The other plea taken was that the plaintiff's marriage with the defendant was conditional on defendants' sister's marriage with plaintiff's brother and the condition having not been fulfiled the marriage of the plaintiff stood dissolved on that account as well. The suit was contested by the defendant who contro verted all the allegations of the plaintiff. The trial Court found that the wife had been turned out unjustly by husband and that she had not been maintained by the husband for 2 years prior to the suit in spite of her efforts to get maintenance from him. As regards the marriage of ' the plaintiff with the defendant being conditional, no evidence was led by the parties. On the basis of these findings the trial judge decreed the suit. In appeal by the defendant the learned District judge did not agree with the trial Court that the evidence led in the case established that the plaintiff had been unjustly turned out by her husband from his house and the husband had wilfully neglected to provide maintenance for her. The learned District judge was however, of the opinion that it was proved that during 2 years before the institution of the suit the plaintiff had been living with her mother and the defendant had neglected to provide main tenance for her and this fact entitled her to have her marriage dissolved. Reliance was placed in that respect on the decision given by me in the case Mst. Reshman v. Sher (1) The learned District judge accordingly dismissed the appeal. From the decision of the learned District Judge the defendant preferred second appeal to this Court. The second appeal came up for hearing before Chaudhry Niaz Ahmad J. and it was urged before him that Jammu& Kashmir Dissolution of Muslim Marriages Act of 1999 in force in Azad Kashmir differed in certain respect from the Dissolution of Muslim Marriages Act in force in Pakistan. According to section 2 of the Jammu & Kashmir Dissolution of Muslim Marriages Act of 1999 in force in Azad Kashmir it was necessary for the wife to make a demand for main tenance while it was not the case so far as the provisions of Dissolution of Muslim Marriages Act in force in Pakistan were concerned. The contention of the learned Counsel for the appellant being forcible, Chaudhry Niaz Ahmad J. framed two additional issues & remanded the case to the learned District Judge for recording the evidence on these issues & submitting his findings thereon. The additional issues were as follows :‑ (i) Whether the plaintiff asked hex' husband to provide for her maintenance and if so when was this demand made ; (ii) If the above issue be proved in the affirmative, did the defendant fail to provide for her maintenance for a period of not less than two years from the date of such demand. After recording the evidence, the learned District Judge submitted his report that it was not proved that plaintiff had at any time made a demand from the defendant for payment of the maintenance allowance. The plaintiff Counsel filed objections with regard to the findings of the District Judge. In the course of arguments, the attention of Niaz Ahmad J. was invited to the case reported as Mst. Reshman v. Sher referred to above. On this Niaz Ahmad J suggested that the appeal should be heard by all the three judges of this Court sitting together which was done. In the case of Mst. Reshman v. Sher (PLD1953M Azad J.& K.10.) it was not pointed out to me that the provisions of Jammu & Kashmir Dissolution of Muslim Marriages Act of 199a in force in Azad Kashmir differed from those of Dissolution of Muslim Marriages Act in force in Pakistan and hence I held that the question that where there was a failure to maintain is pure question of fact and it does not in any manner depend upon the circumstances in which the failure had occurred and it is the duty of the husband to maintain his wife as long as the marriage subsists even when the wife's conduct is such as to induce him to refuse to maintain her. In view of the difference between the provisions of section 2 of the Jammu & Kashmir Dissolu tion of Muslim Marriages Act of 1999 in. force in Azad Kashmir and a similar section of the Dissolution of Muslim Marriages Act in force in Pakistan, before a wife is entitled to obtain a decree for dissolution of marriage it is necessary for her to prove that she asked her husband to provide for her maintenance and he willfully neglected or failed for a period of not less than two years to do so, I accordingly hold that the Law enunciated in the case of MA. Reshman v. Sher is not good Law so far as Courts in Azad Kashmir Territory are concerned and the decision should be considered as overruled. Now coming to the merits of this appeal, the learned Counsel for the plaintiff respondent has not been able to satisfy me that the finding of the District judge that it was not proved that the plaintiff respondent made a demand on the defendant appellant for payment of the maintenance allowance at any stage before the institution of the suit, is incorrect. If the finding of the District judge is accepted then the decision given by the Courts below cannot stand. For the above reasons, I accept the appeal and setting aside the judgments of the Courts below, dismiss the suit. As regards costs, I order that these should be borne by the parties in the special circumstances of the case. Pleaders‑fee shall be Rs. 20 for the purpose of the appeal. A copy of the judgment to be supplied to all the subordi nate Courts for guidance. NIAZ AHMAD AND ABDUL HAMID KHAN, JJ.‑-We agree. A. H. Appeal accepted.