FAKHARUDDIN Vs. HAMIDAN

JUDGEMENT

(1.) This is a defendant's appeal arising out of a suit for dissolution of marriage under the Dissolution of Muslim Marriages Act (8 of 1939). The respondent, Srimati Hamidan, sued the appellant for dissolution of her marriage alleging that the defendant was given to gambling and prostitution, that he habitually maltreated her, that he failed to maintain her for two years before suit and lastly that he failed to perform his marital obligations towards her within the last three years. The defendant denied that he was given to gambling or prostitution or that he maltreated her. He pleaded that the plaintiff-respondent had herself left his house and gone to live with her mother and thereafter refused to come back to him, and, therefore, he was not bound to maintain her and that for the same reason he was prevented from performing his marital obligations towards her

(2.) The defence was accepted by the learned Munsif and the suit was dismissed. On appeal, the lower appellate Court agreed with the Munsif that the plaintiff-respondent had failed to prove that the defendant-appellant had habitually maltreated her or that he was given to gambling or prostitution, but it was of the opinion that the defendant had failed to maintain the plaintiff and to perform his marital obligations towards her for over three years. What it found was that the plaintiff had gone to her mother's house with the defendant's consent on ths understanding that she would return after Eid, that this was four years before the suit, that the defendant never called her after Eid, that, indeed, he went away from Mathura, where the parties resided, to Agra and remained there for over four years and during this period he never sent for his wife and never sent her any maintenance till she gave notice intimating to him that she would claim dissolution of her marriage with him, and that after the receipt of this notice some money was sent by the defendant to the plaintiff but even then he did not write to her to come and live with him. On these facts the lower appellate Court came to the conclusion that the conduct of the defendant- appellant showed that he did not want her to come back to him and had indeed deserted her. It also found that the defendant paid no maintenance to the plaintiff and did not perform his marital obligations towards her. In the result the lower appellate Court decreed the plaintiff's suit.

(3.) This appeal came up in the first instance before our learned brother. Gurtu, who considered that the case should be decided by a Bench as it involved an important question of law.