P L D 1963 Dacca 583 (PLP)

10. For mere non‑discussion of the evidence of P. W. 3 in details, it would not be proper to send back the appeal on remand. In view of the provisions of section 103 of the Civil Procedure Code, this Court is entitled, if the evidence on record is sufficient, to determine any issue of fact necessary for the disposal of the appeal but which has not been determined by the lower appellate Court. This view finds support in the cases of Md. Tozammal Hussain Talukdar and others v. Puni Agar wallini and others ((1951) 3 D L R 298), and Abdul Matleb Biswas and others v. Matulla alias Matiar Rahman Molla and others ((1956) 6 D L R 202). In the case reported in 3 D L R 298, it was held by Akbar, J., as he then was, that in view of the provisions of section 103 of the Code of Civil Procedure the Court is entitled to determine the issue of fact which is necessary for the disposal of the case but which has not been determined by the lower appellate Court. In the case reported in 6 D L R 202, it has been laid down that the High Court has power under section 103 of the Code of Civil Procedure to come to a finding on the evidence on record and resort to power under this section can be had where the interest of the justice demands. In this case, the trial Court discussed the evidence of plaintiff Majida Khatun and of her father P. W. 2, and held that the allegation of cruelty was not established. P. W. 2 stated that he was shown marks of wounds by plaintiff, but he did not tell where these wounds were shown to him. There is nothing in his evidence to show that plaintiff told him that these wounds were due to beating by defendant. Plaintiff also did not make any statement that she showed marks of wounds to P. W. 3, Mobarak Ali. From his evidence it cannot be held that defen dant beat her and treated her with cruelty. The appellate Court below was justified in holding that defendant did not treat the plaintiff with cruelty.

11. The trial Court found that plaintiff had been living in her father's house from Jaistha 1360 B. S. that is, from middle of May 1953. From that, he came to the conclusion that defen dant failed to perform marital obligations for a period of three years and failed to pay maintenance for more than two years and that accordingly she was entitled to get the decree for dissolu tion of marriage.

12. The learned Subordinate Judge on the other hand relying on the admitted case of plaintiff that she was forcibly taken away by defendant on 1st Falgoon, 1361 B. S. corresponding to 13‑2‑1955, and that she lived with her husband up to the middle of Chaitra 1361 B. S. corresponding to last of March 1955, and that plaintiff kept her husband concealed under a mattress in the house of her husband's sister in Baisakh 1362 B. S. came to the conclusion that defendant performed marital obligations within the period of three years. Mr. Islam had contended that from these facts there should not have been the inference that marital obligations were performed as plaintiff stated that there was no cohabitation with defendant since Jaistha 1360 B. S. It was for the appellate Court to consider whether there would be co habitation or not when a grown up wife lived with her husband for more than a month and when she kept her husband concealed in the house of a relation of her husband on one occasion in 1362 B. S. The appellate Court on consideration of these facts has come to the conclusion that there was perform ance of the marital obligations. This finding of fact cannot be disturbed by this Court. The trial Court while holding that plaintiff has been living in her father's house from Jaistha 1360 B. S. totally overlooked the admitted facts that she lived with her husband from 13‑2‑1955, up to the end of March 1955, and that she met her husband in the house of a relation of her husband in Baisakh 1362 B. S.

13. A lower appellate Court is not bound to dispose seriatim of the reasons given by the trial Court, if it gives special reasons of its own for coming to an opposite conclusion. This view is supported by the decision in the case of Jatra Mohan Nandi v. Pitambar Mistri (A I R 1915 Cal. 99). The learned Advocate for the appellant has referred to the case of Akhiladkin Molla v. Panchu Molla and others (P L D 1957 Dacca 607) in which it has been laid down that although the lower appellate Court in reversing a judgment is not bound to deal seriatim with the reasonings of the trial Court or to notice each and every particular item of evidence relied upon by the trial Court if it has given different reasons of its own for coming to the conclusion, yet when the lower appellate Court has reversed the judgment of the trial Court on a material issue without consi deration of the facts and circumstances on which the judgment of the trial Court is based, the High Court, in second appeal, will interfere with the judgment of the appellate Court, even if the question involved is a question of fact. In that case the issue whether a certain patta was valid and the question of possession and dispossession were not at all considered by the first appellate Court and accordingly the appeal was sent back on remand for re‑hearing. But in the present case the issues on which the trial Court decreed the suit for dissolution of the marriage were considered by the first appellate Court.

14. Mr. Islam has also referred to the cases of A. H. Md. Ismail & Co. v. Sachidananda Bhattacharjee (40 C W N 769) and Baidya Nath Sein v. Kumud Chandra Paul and another (40 C W N 513). In the case reported in 40 C W N 769, it has been laid down that a finding of fact by the first appellate Court without consideration, of material facts and circumstances on which the trial Court based its decision is not binding in second appeal. In that case, the first appellate Court held that a Company was not insolvent at a particular time on the ground that no such plea was taken in the defence although the question was raised in the trial Court and evidence was adduced. It was held that the first appellate Court did not apply its mind to the facts and circumstances on which the trial Court relied and the case was sent back on remand. But in the instant case the first appellate Court considered the material facts and circumstances and came to a different conclusion on giving reasons.

15. In the case reported in 40 C W N 513, it has been laid down that the Court of appeal ought not to set aside the findings of fact of trial Judge unless the appellant convinces the Court that such finding is clearly wrong. But in the present case the appellate Court below was convinced that the findings of fact arrived at by the trial Court were wrong, and it has given the reasons for holding so.

16. It is the plaintiff's case that she was forcibly taken away by defendant on 1st Falgoon, 1361 B. S. corresponding to 13‑2‑1955, that she lived with her husband for a little more than a month and then she left her husband's house by the middle of Chaitra 1361 B. S. corresponding to the end of March 1955.

17. From these admitted facts the learned Subordinate Judge inferred that defendant made forcible attempts to take plaintiff to his house. The learned Subordinate Judge has made the following observation :‑ " .from the case made out by the plaintiff it appears that the defendant made forcible attempt to take away the plaintiff from her father's house and actually took away the plaintiff from her father's house." It is admitted that plaintiff's father brought a case under section 365 of the Pakistan Penal Code against defendant, that case failed, that plaintiff's father was asked to show cause why he would not be prosecuted under section 211 of the Pakistan Penal Code and that the matter was ultimately compromised on 4‑10‑1955. In the trial Court it was contended on behalf of the defendant that after the compromise, plaintiff was sent back to her husband's house and that she lived with her husband till Pous 1363 B. S. corresponding to middle of December 1956. The trial Court held that it was for the defendant to prove that plaintiff lived with defendant up to that time and on consideration of the evidence of D. Ws 1 and 3, he concluded that defendant did not go to the house of plaintiff to take her. Mr. Islam has contended that the appellate Court did not at all refer to the evidence of D. W. 3 and that there was no basis for the finding that defendant attempted to take plaintiff to his house and that as such the finding that the plaintiff was refractory to defen dant was without basis. From the admitted case of the plaintiff that she was forcibly taken away in Falgoon 1361 B. S. and that she left her husband in Chaitra 1361 B. S. corresponding to end of March 1955, the learned Subordinate Judge held that there were attempts on the part of the husband to take the plaintiff to his house. In the circumstances the contention that there is no basis for the finding that plaintiff without justification withheld herself from the defendant, cannot be accepted.

18. A Muslim husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain her if she refused herself or is otherwise disobedient, unless refusal or disobedience is for non payment of dower. This view finds support in several authori ties on Muhammadan Law. In Baillie's Digest of Muhammadan Law, Second Edition, page 442, it has been stated as follows "If, when called upon to remove to his house, she refuses 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. If a woman be a nashizah or rebellious, she has no right to maintenance until she returns to her husband's house. By this expression is to be understood a woman who goes out from her husband's house (munzil) and denies herself to him, in contradistinction to one who merely refuses to abide in her husband's apartment (beit), which is not necessary for the purpose of restraint. If, however, the house be her own property, and she forbids him from entering it, she is not entitled to maintenance unless she had asked him to remove her to his own house, or to hire a house for her. When she ceased to be a nashizah or rebellious, she is again entitled to maintenance.

19. In Ameer Ali's Muhammadan Law, Volume 11, Fifth Edition, 407, it has been observed as follows: --‑ "But the right of the wife to maintenance is subject to the condition that she is not refractory or does not refuse to live with her husband without lawful cause."

20. In the present case, it has been found by both the Courts below that defendant was not cruel to plaintiff. It has been held by the lower appellate Court that defendant's attempt to take her in his house failed. It follows that plaintiff has refused herself to return to her husband's house without sufficient cause. It has been rightly held that she is not entitled to maintenance.

21. Clause (ii) of section 2 of the Dissolution of Muslim Marriages Act (Act No. VIII of 1939), provides that a woman married under Muslim Law shall be entitled to obtain a decree for dissolution of her marriage on the ground that the husband has neglected or has failed to provide her for her maintenance for a period of two years. But non‑payment simpliciter of main tenance does not constitute a failure or neglect within the meaning of clause (ii) of section 2 of the Act. This view is supported by the case of Nuruddin Ahmed v. Masuda Khanam (P L D 1957 Dacca 242). The present case is one of non‑maintenance simpliciter as the allegations relating to cruelty and non‑performance of marital obligations have not been established.

22. There is no ground for interference with the decision of the learned Subordinate Judge.

23. In the result, the appeal is dismissed with costs. The judgment and decree of the learned Subordinate Judge are affirmed. Leave under Clause 15 of the Letters Patent as asked for by Mr. A. K. M. Nurul Islam is refused. S. B./A. H. Appeal dismissed.