MUHAMMED ASHRAF Vs. NADEERA

JUDGEMENT

(1.) The question arising in this appeal is one relating to the interpretation of the provisions contained under S.2(ii) of this Dissolution of Muslim Marriages Act, 1939 (Act 8 of 1939). The contention raised by the appellant that for the wife to take advantage of the provisions contained under clause.(ii) of S.2 as a ground for divorce the nonpayment of maintenance by the husband must be without reasonable cause, was not accepted by the Trial Court. Aggrieved by the above, the husband who was the respondent in O. P. 35/98 before the Family Court, Ernakulam has come up in appeal.

(2.) The petition was filed under S.2 of the Dissolution of Muslim Marriages Act, 1939 by the respondent herein claimed a decree for dissolution of marriage. The petitioner and respondent are Muslims. Their marriage was solemnized on 12-6-1988. A child was born to them in the wedlock. The petitioner and the respondent have been living separately from 5-10-1992 onwards. The petitioner contended that the respondent has neglected to maintain her for more than two years, that she was subjected to cruel treatment when she was living with the respondent, that the respondent has now married another lady name Rasheeda and therefore the petitioner is entitled to a decree for divorce. The respondent resisted the petition. He contended that he had never ill treated the petitioner, on the other hand, he was meted with ill treatment at the hands of the petitioner. He had not wilfully neglected to maintain the petitioner. She has been living separately from him without any justification. A petition filed by her as M. C. 304/94 claiming maintenance for her and the child was disposed of by awarding maintenance only to the child, Crl. R. P. No. 1172/95 filed against the above order by the wife was rejected by this Court. He admits having contracted a second marriage. According to him, he was compelled to contract second marriage, since the petitioner refused to live with him. The contention put forward by the 2nd respondent is that the petitioner is not entitled to a decree for divorce on the ground of cruelty or on the ground nonpayment of maintenance.

(3.) The family Court took the view that the petitioner had not substantiated the ground of cruelty, but following the dictum laid down by this Court in Moosa v. Fathima, 1983 KLT 787 , granted divorce under S.2 of the Dissolution of Muslim Marriages Act, 1939. The Family Court took the view that for taking recourse to clause.(ii) of S.2 it is not necessary for the petitioner wife to prove that she was not being maintained by the husband without reasonable cause. The learned counsel for the appellant submitted before us the view taken by this Court in 1983 KLT 787 and earlier decisions do not lay down correct law and therefore a fresh look has to be taken on the issue.