P L D 1952 Baghdad ﷓ul﷓Jadid 47 (PLP)

ABDUL HAMID MALIK, J.‑This is an appeal by the plaintiff Mst. Jannat who brought a suit against her husband, Rahim Bakhsh for the dissolution of her marriage under the provisions of Dissolution of. Muslim Marriage Act, 1939. It was alleged by Mst. Jannat that she was treated by her husband with cruelty, that the husband falsely accused her of adultery, that the husband had turned her from his house and had neglected to provide for her maintenance during the three years immediately preceding the suit, and that the husband had failed to perform, without reasonable cause, his marital obligations for more than two years. The defendant resisted the suit and denied all the allega tions of the plaintiff. It was further pleaded by the defendant that the plaintiff had gone on the pretext of seeing her maternal aunt some two years back and then had refused to return in spite of the repeated efforts made by him to bring her back. The trial Court granted the plaintiff a decree on the grounds stated above. On appeal, the learned District Judge reversed the decision of the Court of first instance and dis missed the plaintiff's suit. Against this decision, the plaintiff had preferred a second appeal to this Court. The learned District judge has held that the plaintiff has failed to sub stantiate her allegation of cruelty etc., and that she had refused to live with her husband without reasonable cause. Under the circumstances the District Judge, was of the opinion that the plaintiff was entirely to blame and no blame attached to the husband, therefore, it could not be said that the husband had failed to provide for the maintenance of the plaintiff. He accordingly dismissed the suit; Mr. Mustafa Khan, the learned counsel for the appellant contended that the order of the learned District judge dismissing the suit was legally wrong on the ground that the lower appellate Court, having come to the finding that the husband had failed to provide maintenance to the wife for two years before the suit was bound to pass the decree for dissolution of the marriage. He urged that the only point that the plaintiff had to prove under the law was that the husband had neglect ed or had failed to provide for the maintenance of his wife for a period of two years preceding the suit and that the learned lower appellate Court has come to a finding that in the present case the defendant did fail to provide for plaintiff's maintenance for the statutory period of two years. Reliance is placed on Noor Bibi v. Pir Bakhsh P L D 1950 Sind 36, where a Division Bench was pleased to observe that a wife would be entitled to a dissolution of marriage under clause (ii) of section 2 of the Dissolution of Marriage Act in spite of the fact that on account of her conduct she would not have been entitled to enforce any claim for maintenance against the defendant in respect of a period during which the husband has failed to maintain the wife. It is pointed out on the strength of the above ruling that it is immaterial whether the wife was at fault or not and that in all cases where it was proved that the husband had failed to provide for wife's maintenance for two years, a decree for the dissolution of‑marriage should be granted. I have carefully studied the ruling referred to above and find that it was mainly based on the reasoning adopted by Abdul Rashid, J., Mst. Akbari Begum v. Zafar Hussain in A I R 1942 Lah.

92. The learned judge was pleased to observe as follows :‑ "The words 'without reasonable cause' do not occur in section 2 (ii) and therefore whatever the cause may be the wife is entitled to a decree for the dissolution of her marriage, if the husband fails to maintain her for a period of two years, even though the wife may have contributed towards the failure of the maintenance by her husband." Besides this I find that their Lordships of the Sind Chief Court were of the opinion that the Legislature intended that the general provision of Muhammadan Law should not control the operation of Act of 1939. Their inference was that the Act was expected to be complete by itself and that the question whether a woman was entitled to maintenance under Muhammadan Law would therefore be absolutely foreign to the inquiry under Act VIII of 1939, as to whether a marriage would be dissolved for failure on the part of the husband to pay maintenance. I may at this stage refer to a local amendment of clause (ii) of section 2 introduced by Notification No. 39, dated the 1st June, 1943, according to which it is obligatory on the Courts to see whether the wife is entitled to maintenance under Muhammadan Law and in case it is found that she is so entitled then the husband has to be given a period to change his attitude and to provide for the maintenance of his wife. If, however, he fails to do so during the appointed time then the suit for dissolution of marriage has to be decreed. It is therefore evident that so far as Bahawalpur State is concerned the State Legislature intended that the general provisions of Muhammadan Law should control the operation of clause (ii), section 2 of the Dissolution of Marriage Act of 1939. It is therefore necessary in the State to determine first whether the wife is entitled to maintenance under the Muhammadan Law and therefore it follows that where the wife was entirely to blame and no blame attached to the husband then the wife was not entitled to a divorce. Hence the reasoning adopted by the Division Bench in 1950 does not apply to the State in view of the local amend ment referred to above and thus the ruling in question cannot help he appellant It may also be added that Mst. Akbari Begum v. Zafar Hussain A I R 1942 Lah. 92, was overruled subsequently by Division Bench in Zafar Hussain v. Mst. Akbari Begum 1944 Lah. 336, where it was observed that before a husband can be said to hive neglected or failed to provide maintenance for his wife it must be held that the husband was under the legal duty to provide such mainten ance. If the husband was not under Muhammadan Law bound to maintain his wife, how can it be said that he had neglected or had failed to maintain her, if he sent her no money or other maintenance. Again in Fazal Muhammad v. Mst. Umatur Rahim A I R 1949 Pesh. 7, the same line of argument was followed and they also agreed that a husband was not bound to maintain his wife who was at fault and refused to live with her husband. In a similar case a Division Bench of Allahabad High Court in Mst. Badrulnisa Bibi v. Syed Muhammad Yusuf A I R 1944 All. 23, observed as follows :‑‑ "The word neglect implies wilfull failure. The words `has failed to provide' are not very happy but even they imply an omission of duty. When the wife through her own conduct leads the husband to stop the maintenance the Court will not allow the dissolution of marriage for that would be giving her a benefit‑if benefit can be called , arising from her own wrongful acts." I find myself in respectful agreement with the view expressed in Zafar Hussain v. Mst. Akbari Begum A I R 1944 Lah. 336, Fazal Muhammad v. Mst. Umatur Rahim A I R 1949 Pesh. 7. and Mst. Badrulnisa Bibi v. Syed Muhammad Yusuf A I R 1944 All.

23. All these rulings purport to lay down the law that where the wife is at fault then no legal duty is caste' on the husband to provide for her maintenance. With the utmost respect, I regret, that I have not been able to pursuade myself to agree to the reasoning adopted by the learned judges of the Sind Chief Court in their judgment cited by the counsel for the Appellant Noor Bibi v. Pir Bakhsh P L D 1950 Sind

36. I am also of the opinion that the conflict between two different sets of rulings referred to above is removed by the local amendment, dated 1st June, 1943. It is abundantly clear that so far as Bahawalpur State is concerned the operation of clause (ii) section 2 of the Dis solution of Marriage Act is entirely controlled by the general provisions of Muhammadan Law. That being so, a wife who is not entitled to maintenance under the Muhammadan Law cannot get her marriage dissolved on the ground of failure of payment of maintenance. As it has been held by the lower appellate Court that the plaintiff flatly refused to live with her husband and it was entirely due to her own conduct that the husband was pre vented to provide for her maintenance, she is not legally entitled to a decree for dissolution of marriage. I, accordingly, dismiss this appeal with costs. A. .H. Appeal dismissed.