ITTOOCHALIL MEETHAL MOOSSA Vs. PACHIPARAMBATH MEETHAL FATHIMAS

JUDGEMENT

(1.) These second appeals arise out of two connected suits, one for dissolution of a Muslim marriage and the other for restitution of conjugal rights. As against the unbridled and arbitrary power of divorce a Muslim male enjoys to what extent the Muslim law concedes a right of divorce to the woman is the point for determination in these second appeals.

(2.) Both the suits were tried together and common judgments were pronounced by both the courts below. The courts below have concurrently found that a ground under Clause (ii) of Section 2 of the Dissolution of Muslim Marriages Act, 1939 has been made out by the wife against the husband. Under Clause (ii) of Section 2 a woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on the ground "that the husband has neglected or has failed to provide for her maintenance for a period of two years". On the finding that the husband has neglected or failed to provide for the maintenance of the wife for a period of two years the suit by the wife for dissolution of marriage was decreed and the suit for restitution of conjugal rights by the husband was consequently dismissed. Krishna Iyer, J. (as he then was) in the decision reported in Yusuf Row-than v. Sowramma (1970 Ker LT 477) 8 (AIR 1970 Ker 261) has held that a man's failure to provide for the maintenance of the wife for the period of two years mentioned in Clause (ii) of Section 2 entitles the wife to a decree for dissolution of marriage whether or not the husband had reasonable cause for withholding such maintenance. Learned counsel for the appellant challenges the correctness of this decision in the light of the decisions of other High Courts taking a contrary view that a wife is entitled to a decree for dissolution of marriage only if she is able to satisfy the court that the husband has neglected or failed to provide for her maintenance without reasonable cause for the period aforesaid. Krishna Iyer, J. in para 10 of the decision in 1970 Ker LT 477 : (AIR 1971 Ker 261) refers to the conflict of decisions by the various High Courts in India on the question as to whether it is necessary for the wife to show that the neglect or failure to provide maintenance was also without reasonable cause. The learned Judge after referring to the pristine Islamic Law under which the wife is also conceded a right for dissolution of marriage in certain circumstances has chosen to follow the decision in Mt. Noor Bibi v. Pir Bux (AIR 1950 Sind 8) in preference to the decisions taking a contrary view.

(3.) Abdulla Yusuff Ali in his commentary on the "Meanine of the Glorious Quran" commenting on Sura LXV states thus at p. 1561:- "The relations of the sexes are an important factor in the social life of the community, and this and the following sura deal with certain aspects of it. "Of all things permitted by law", said the Prophet