P L D 1957 (W (PLP)

AKHLAQUE HUSAIN, J.

This is a second appeal against the judgment and decree dated the 21st of November 1956. passed by the learned District Judge, Rawalpindi, accepting the defendant's appeal against the judgment and decree of the 2nd Additional Civil Judge, 4th Class, Rawalpindi, decreeing the plaintiff's suit for dissolution of her marriage with the defendant. The claim was based upon the allegations that the defendant had not duly maintained the plaintiff for more than two years, had not performed his marital obligations towards her for more than three years, and had treated her with cruelty. The learned lower appellate Court found, all the allegations against the plaintiff. Regarding the last mentioned allegation (of cruelty) learned counsel for the plaintiff-appellant only urged that the learned District judge had failed to consider the plaintiff's allegation that the defendant had taken away her minor child forcibly. That is not correct. The matter has been quite satisfactorily dealt with in the last part of the judgment. As regards the first two allegations of the wife, the learned District Judge, after considering all the evidence, found that the husband could not be blamed either for not maintaining the plaintiff or for not performing his marital obligations towards her because the plaintiff herself had all along refused to return to his house from that of her parents where she had been living for about three years prior to the institution of the present suit. As the appellant's learned counsel contended that there was no evidence on the record to show that the plaintiff herself had refused to go back to the defendant, I went through the relevant evidence. It is true that most of the witnesses stated that it was the plaintiff's parents who were refusing to send her to the defendant's house. But the plaintiff herself had also sent a notice to the defendant on the 10th of June 1955, about two months prior to the institution of the present suit. which clearly shows that her parents, in rejecting the defendant's request to take away the plaintiff to his home, were acting as her agents, and with her consent. It was not possible for the defendant to approach the plaintiff directly without the consent of her parents. I am, therefore satisfied that the plaintiff herself refused to return to her husband. Lastly, it was contended on behalf of the appellant that the right of a wile to maintenance for the purposes of section 2 (ii) of the Dissolution of Muslim Marriages Act VIII of 1939 is absolute and unqualified and does not exonerate the husband from his duty to provide maintenance even though the wife may not, on account of some fault on her part, be entitled to claim it under the Muslim law. He has relied upon a decision of a Division Bench of the late Sind Chief Court Mst. Noor Bibi v. Pir Bux (P L D 1950 Sind 36). This ruling was dissented from in Mst. Aishan Bibi v. Sain (P L D 1952 Lah.460) decided by a Division Bench of the late Lahore High Court. I am in respectful agreement with the reasoning and decision in Mst. Aishan Bibi's case. It is, therefore, wholly unnecessary for me to consider the matter in detail. The preamble of Act VIII of 1939; which states that the Act was being passed "to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim law", and the opening words of section 2, namely, "A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds", leave no doubt whatever that the maintenance mentioned in. clause (ii) of section 2 is the maintenance to which a Muslim wife is entitled under the Muslim law. The Muslim law does not confer upon a wife an absolute and unconditional right to maintenance. I am, therefore, not prepared to accept the contention raised by the appellant's learned counsel. The appeal is dismissed; but, in the circumstances of the present case, the parties shall bear their own costs in this Court. A.H. Appeal dismissed.