P L D 1952 Lahore 460 (PLP)

MUHAMMAD MUNIR, C. J.‑This is an appeal under clause 10 of the Letters Patent in a suit for dissolution of marriage under section 2 of the Dissolution of Muslim Marriages Act, VIII of 1939. The present appellant Mst. Aishan Bibi, sued her husband Sain, the respondent to this appeal, for cancellation of her mar riage on the ground that the respondent, both at the time of the marriage and the suit, was impotent; that he had neglected and failed to provide for her maintenance for a period of two years and that without reasonable cause he had failed to per form his marital obligations for a period of three years. The respondent having denied the allegations, the following issues were framed in the suit :‑ (1) Was the defendant impotent at the time of his mar riage and continues to be so? (2) Has the defendant failed or neglected to maintain the plaintiff for the last five years without sufficient cause? (3) Has the defendant failed, without sufficient cause, to discharge his marital obligations to wards. the plaintiff for more than three years The Senior Civil Judge, Sialkot, who heard the suit, held the issue of impotency unproved and the other issues proved and decreed the suit. On appeal, the District judge, reversed the findings of the Senior Civil Judge on the other two issues also and consequently dismissed the suit. The appellant then appealed to this Court and Shabir Ahmad, J., who heard the appeal, dismissed it on the authority of Zafar Hussain v. Mst. Akbari Begum I L R 26 Lah.

517. The main point argued before him was that even if the appellant had been living away from the respondent in disobedience, she was entitled to a decree under the law on proof of the fact that the respondent had paid her no maintenance during the prescribed period. As some authorities cited before him appeared to support this contention, the learned Judge granted a certificate for appeal to a Division Bench. In order to decide the question of law raised, the facts must first be ascertained. It has been found by the learned District judge, and this finding is binding on this Court in second appeal, that the appellant had been living away from her husband without any valid reason and that no maintenance had been paid to her for the period that she had absented her self from her husband's house. Now under the Muslim Law the husband is entitled to the society of his wife and to demand obedience to his lawful orders and if she, without any valid reason, refuses herself to him or disobeys his lawful orders, she is not entitled to main tenance. In the present case, therefore, it must be held on the facts that the appellant was not entitled to any maintenance. The question accordingly is whether in these circumstances the mere fact that the husband paid her no maintenance, brings the case within clause (ii) of section 2, Act VIII of 1939, so as to entitle her to ask for a decree of dissolution of marriage. Though in the past there was some difference of opinion on this question, the High Courts are now almost unanimous that in the circumstances supposed the wife has no cause of action against the husband. The latest case on this point in our Court is Zafar Hussain v. Mst. Akbari Begum, I L R 26 Lah. 517, where, reversing the judgment of Abdul Rashid, J. who had taken a contrary view, Harries, C. J. and Mahajan, J. held that it was not correct to say that section 2 (ii) of Act VIII of 1939 casts upon the husband an absolute duty to maintain his wife in all cases and that any failure in that duty' would be a ground for divorce even if the wife herself was at fault and was really the cause of the husband's refusal to maintain her. The learned judges proceeded to observe that before a husband can be said to have neglected or failed to provide maintenance for his wife, it must be shown that he was under a legal duty to provide such maintenance and that where there was no such legal duty‑cast on him by the Muslim Law, it cannot be said that he had neglected or failed to maintain her if he sent her no money or other maintenance. A Muhammadan husband, the learned judges remarked, is not legally bound to provide maintenance for his wife if the latter, without reasonable cause, refuses to live with her husband, disobeys his instructions and declines to cohabit with him and the husband's failure to maintain her in such circumstances cannot entitle her to a divorce under section 2 (ii)'. The latest Peshawar view is to be found in Fazal Mahmud v. Mst. Umtur Rahim A I R 1949 Pesh. 7 where, dissenting from the earlier contrary decisions in A I R 1943 Pesh. 73 and A I R 1943 ‑Pesh. 51, Muhammad Ibrahim,

7. C. and Ram Lahhaya, J. followed the law as propounded by this Court in Zafar Hussain v. Mst. Akbari Begum and held that where the wife herself refuses to reside with her husband or fails to dis charge her marital obligations, without any reasonable cause, she cannot claim maintenance under the general law applicable to Muhammadans and is not entitled to a divorce on the ground that she was not maintained by her husband. In the Allahabad High Court the latest case is Mst. Shamim Fatma v. Ahmad Ullah Khan A I R 1947 All. 3 where a contention similar to that raised on the appellant's behalf before us was repelled by Allsop, A. C. J. and Mathur J., the former who delivered the judgment observing :‑ "On the other point it has been argued that there is an absolute duty on a husband to maintain his wife and that the wife is entitled to a decree for dissolution of marriage even if she avoids the husband and refuses the shelter of his house which he offers to her. In our judgment there is no force in this argument. It must be remembered that the wife is not entitled to a decree for dissolution unless there is a failure on the husband's part. The Act does not mean that the husband is bound to follow his wife wherever she may go and force money or food or clothes upon her. In the present case the husband had obtained a decree .for restitu tion and it seems that his house was open to his wife. If she refused to avail herself of the shelter which was offered to her, she cannot complain and is certainly not entitled to a decree". The same view of the law was taken by Mudholkar, J. in the recent Nagpur case in Jamila Khatun v. Kasim Ali Abbas Ali, A I R 1951 Nag.

375. The head note of that case which clearly brings out the point decided is: "Where the question arises whether there has been failure on the part of the husband to maintain his wife, the question must necessarily arise whether the wife was at the relevant time entitled to be provided with maintenance. Act VIII of 1939 crystallizes a portion of the Muslim Law and must be taken in conjunction with the whole of the Muslim Law as it stands. The words 'to provide for her maintenance' occurring in section 2 (ii) imply maintenance only in such circumstances as is allowed under the general Muhammadan Law. Where the wife voluntarily stayed away from her husband's house and despite the husband's request to return to his house, and live with him and despite also his offer of maintaining her there, she chose to stay in the house of her relation it cannot be said that these circum stances indicate neglect or failure on the part of the husband to maintain the wife merely because he did not send any money to her during this period and the wife is not entitled to claim divorce". Thus the view of four High Courts, including our own, is against the appellant on the question of law raised. The only case which is against this view is a decision of the Chief Court of Sind in Mst. Noon Bibi v. Pir Bux (P L D 1950 Sind 36) in which differing from an earlier decision to the contrary by Lobo, J. in Mst. Khatijan v. Abdullah Ditta Sheikh I L R 1942 Kar. 535, and following his own unreported decision in Mst. Hajra v. Kassain, Tyabji, C. J. with the concurrence of Muhammad Bachal, J. gave effect to .the contention that a Muslim wife is entitled to a decree for dissolution of marriage on mere proof of the husband's failure to maintain her even where by her conduct she had disentitled herself from claim ing maintenance. In the opinion of that learned judge a dissolution of marriage is allowed in Muslim ‑ Law when a cessation of the state of marriage has in reality taken place, or when the continuance of the marriage has become injurious to the wife because the continuance of a state of affairs in which a marriage has ceased to be a reality when the husband and the wife no longer live "within the limits of Allah" is abhorred in Islam and the Prophet enjoined that such a state of affairs should be ended. Before us the appellant has staked her entire case on the correctness or otherwise of this decision. It is, therefore, necessary to examine whether the words of the statute on the interpretation of which decision has to be taken in this case are wide enough to include those cases where Tyabji, C. J. thought a decree for dissolution could be granted, even though the wife by her own conduct had dis entitled herself to maintenance, failure to pay which is alleged by her to constitute her cause of action for the relief of dissolution of marriage. Now it seems to me to be clear not only from the history but also from the terms of the provisions of Act VIII of 1939 that Act, while it codifies Muslim Law on certain points, is only supplementary to certain other rules of that law, the validity of which it assumes and recognises. In the first place, the Act applies only to Muslims and was intended to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under the Muslim Law. Section 2 of the Act states the grounds on which a Muslim woman may obtain a decree for dissolution of her marriage and the last clause of that section, which is a residuary clause, provide: that dissolution may be obtained "on any other ground which is recognised as valid for the dissolution of marriages under Muslim Law". It is, therefore, quite clear that the position taken in the earlier Peshawar. cases, which were subsequently dissented from, that the Act is and was intended to be a complete codification of the Muslim Law of the grounds on which dissolution may be obtained was incorrect and that in the ap plication of clause (ix) of section 2, a reference to Muslim Law is necessary where the ground for dissolution is not covered by any one of the earlier clauses. Under clause (iv) of section 2 the wife can obtain a decree for dissolution only on proof of the fact that the husband has failed to perform, without reasonable cause, his marital obligations for a certain period. Clause (ii), however, omits the words "without rea sonable cause" and on the omission of these words from that clause is founded the appellant's main argument that a mere non‑payment of maintenance by the husband for the requisite period is sufficient to entitle a wife to a decree for dissolution irrespective of whether the maintenance for that period could or could not under Muslim Law be claimed by her from her husband. This difference in the phraseology of the two pro visions has been noticed in several cases but it has not been considered to be a reason for the proposition that however disobedient or unfaithful to her husband the wife may be, and though for that reason she may not be entitled to maintenance under the Muslim Law, she can still claim dissolution of her marriage merely on proof that during the prescribed period she was not paid anything by her husband for her maintenance. Therefore, before a contrary interpretation, which would be opposed to all principles of jurisprudence, is accepted, it must be shown that on the words of the statute there can be no escape from such interpretation. Clause (ii) of section 2 entitles a wife to a decree for dissolution if she succeeds in proving "that the husband has neglected or has failed to provide for her maintenance for a period of two years". The crucial words in the provision are "neglected" and "failed". In law both these words have a definite connotation and are used with reference to a duty which a person has neglected or failed to perform. The words would be definitely inapt where no legal duty exists and where the reference is merely to an omission to do an act whether that act was or was not, in the circumstances, a duty. Now if the husband is not under an obligation to pay maintenance to the wife, his non‑payment cannot amount to neglect or failure. The words "without reasonable cause" which occur in the fourth clause were intentionally omitted from the second clause. These words could only have been inserted in clause (ii) between the words "has" and "neglected" but in that case the clause would not have been a correct representation of the Muslim Law on the subject because instances of inability mentioned by Beckett, J. in Manak Khan v. Mst. Mulkhan Bano A I R 1941 Lah. 167, e.g., poverty, failing health, loss of work, imprison ment or any other similar cause, would not then have been grounds for claiming dissolution if for any one or more of those reasons maintenance was not paid for two years. That was intended by the second clause, however, was that in such cases the wife should be entitled to dissolution of marriage if the husband is unable to maintain her or to pay her mainte nance owing to his property, lack of employment or some other similar personal reasons. On a plain interpretation of the Act, therefore, I see no difficulty in holding, and such finding would be consistent with all well‑accepted principles, that if by reason of the wife's conduct the husband was under no obligation to pay her maintenance, the former cannot make the alleged non‑payment a ground for dissolution of her marriage under the Act. If the view taken by Tyabji, C. J. he accepted as correct, it would mean that the wife may be living away from her husband for no other reason than that she does not like him or his ways, or that she prefers to lead a life of sin, and since in such a case it. would be deroga tory to the husband's self‑respect to pay her maintenance‑ a duty which is certainly not cast on him by the Muslim Law she may still come to a Court of law making non‑payment of an amount, which was not due, a ground of her action. No such thing was intended by the Legislature and the words do not say so or land themselves to this construction. It may be, and on that point I express no opinion, that where the spouses are living away from each other and not in contended conjugal state, a cessation of the state of marriage may occur which it will be better for the husband to recognise by pronouncing divorce. But I do not think that on that ground alone the wife would be entitled to any relief under clause (ii) of section 2 of Act VIII of 1939. Nor can release from matrimony always be held to be beneficial and continuation in an unhappy state of marriage as injurious to the wife, as Tyabji, C. J., thought. If a wife, for instance, leaving the limits of Allah has taken to Satan's way and for that reason a cessation of marriage has occurred, will she be right in claiming dissolution on the ground that her remaining the wife of her husband is not within the limits of Allah or that it has become injurious to her. And will not the husband in such a case be entitled to say to her "You have gone but of the limits of Allah and taken to Satan's ways. I demand that you return to the limits of Allah and if you do not, I refuse to pay you maintenance or to divorce you because a divorce in the circumstances which you have created will for ever take you away from the limits of Allah and land you into sin". Several other instances may be imagined in which, if the reasoning of Tyabji, C. J. be accepted as correct, some incongruous results would follow. I cannot, therefore, follow the precedent in Noor Bibi v. Pir Bux nor the reasoning underlying it or the assumption made therein, and, following the view of our own High Court, which is now shared by all the other High Courts, I disallow the appeal but, as there were some precedents in support of the view pro pounded by the appellant, would leave the parties to bear their own costs. MUHAMMAD JAN, J.‑I agree. A. H. Appeal dismissed.