P L D 1958 (W (PLP)

R. Kaikobad for Appellant. S. H. Rizvi for Respondent. MUNSHI, J. -- This is an appeal from the judgment of our brother Bachal, J. decreeing the suit of the respondent for dissolution of her marriage with the appellant under section 2 (ii) of Act VIII of 1939. The suit of the respondent was based on grounds of cruelty and failure to maintain her. Our brother, while holding that the allegation of cruelty was not proved, held that failure on the part of the appellant to maintain the respondent was proved. He based his judgment on this finding and decreed the suit for dissolution. The question whether failure or neglect to maintain one's wife, confers an absolute right on the latter to claim dissolution, has been subject of discussion in various High Courts. The majority is against the view that mere failure to maintain confers an absolute right on the wife to a decree for dissolution. The most important decision on this point is that reported in Mst. Aishan Bibi v. Sain (P L D 1952 Lah. 460) in which, the Chief Justice of that Court who is now the Chief Justice of Pakistan has in his able judgment, discussed all the aspects of the case and the rulings of various High Courts, and has held that if by reason of the wife's conduct, the husband was under no obligation to pay her maintenance, the former cannot make the non‑payment a ground for dissolution of her marriage under the Act. According to His Lordship, the crucial words in the provision are `neglected' and `failure' and that these words are used with reference to a duty which a person has neglected or failed to perform. With this view, we are in respectful agreement. It is also in consonance with Article 198 of our Constitution. We must, therefore, revise the view, held so far on the subject, by the Chief Court of Sind above, namely that the right of the wife to maintenance is unconditional and it is not affected by her conduct. In order to obtain decree for dissolution is must be shown that there was a legal duty on the husband to maintain his wife at the relevant time and that he failed or neglected to perform that duty. Under the Muslim Law, the wife is under an obligation to obey and carry out lawful and reasonable instructions of her husband, submit herself to his and live with him in his house. Her failure to do so wills disentitle her to maintenance. In this case, the case of the 9e appellant was that the respondent had run away with one Sher Ali with whom she had developed criminal intimacy during the time he was living with him. Our brother has accepted this contention. This is what he had said in his judgment : The story of the defendant that his wife was intimate with Sher Ali who stayed with him in the same room, appears to be natural. Having come to this conclusion, it was, in view of what is stated above, necessary for our learned brother to raise and decide the issue, whether, under those circumstances, the respondent was entitled to maintenance. We, therefore, remand the case to our brother to decide the following issues and send the case back to us for final order. The issues to be decided are . . . (1) Whether the plaintiff‑respondent was under the Muslim Law, entitled to maintenance during the period of two years in question (2) whether the defendant‑appellant, failed or neglected to maintain her during that period, (3) whether failure to maintain her during that period entitled the plaintiff‑respondent to a decree for dissolution. K. M. A. Case remanded.