A YOUSUF RAWTHER Vs. SOWRAMMA

JUDGEMENT

(1.) This case, like most others, reveals a human conflict, over-dramatised by both sides and dressed up in legal habiliments, as usual; and when, as here, parties project a matrimonial imbroglio on the forensic screen, the court attempts a reconciliation between law and justice. What deeply disturbs a judge in such case-situations is the conflict between doing justice by promoting a rapprochement and enforcing the law heedless of consequence. Sowramma, a Hanafi girl, around 15, married in 1962 Yusuf Rowthan, nearly twice her age, but the husband's home hardly found them together for more than a few days and after a long spell of living apart, an action for dissolution was instituted by the wife against the husband. The matrimonial court should, and I did, suggest to counsel, in vain though, to persuade the parties to repair the broken bond. Unhappily, irreversible changes in the conjugal chemistry baulked the effort, the husband having taken another wife and the latter having wed again after dissolution was granted in appeal. And thus their hearts are pledged to other partners. The prospect of bringing together the sundered ends of the conjugal knot being absent a decision on the merits, according to the law of the parties, has to be rendered now. Even so, the legal impact of such subsequent events on granting or moulding the relief falls to be considered.

(2.) A brief narration of the facts will help to appreciate the questions argued before me, with thoroughness and fairness, by counsel for the appellant and his learned friend opposite. (A young advocate of this court, Sri Manhu, who has impressed me with his industrious bent and depth of preparation on questions of Muslim law, has, as amicus curiae, brought into my judicial ken old texts and odd material which are outside the orbit of the practising lawyer). The plaintiff had attained puberty even before her marriage and soon after the wedding, the bridal pair moved on to the husband's house. The very next day the defendant left for Coimbatore where he was running a radio dealer's business. A month's sojourn in the house of the husband and then the girl went back to her parents, the reason for her return being blamed by each on the other. This separation lasted for over two years during which span the defendant admittedly failed to maintain the wife, the ground alleged by the defendant being that he was willing and indeed, anxious to keep her with him but she wrongfully refused to return to the conjugal home -- thanks to the objectional inhibition by the father of the girl. The husband, finding the young wife recalcitrant, moved the mosque committee, through his brother (Ext. D2) but the effort failed and so they reported that divorce was the only solution (Ext- D4). Anyway, after preliminary skirmishes, in the shape of lawyer notices, a litigation for dissolution of marriage erupted. The trial court dismissed the suit but the Subordinate Judge's Court granted a decree for dissolution of the marriage. The aggrieved husband has come up to this court challenging the validity of the decree of the lower appellate court. His counsel, Shri Chandrasekhara Menon, has highlighted a seminal issue of Muslim law -- the right of a female wrongfully leaving the matrimonial home to claim dissolution through court for mere failure of the husband to maintain the erring wife for 2 years.

(3.) The concurrent findings are that the plaintiff was 15 years old, that she had attained puberty and the marriage had been consummated. Again, while both the courts have held that the defendant had failed to provide maintenance for the plaintiff for a period of two years, they have also recorded a crucial finding "that it was through her own conduct that she led her husband .................to stop maintenance for a period of 2 years".