BAI FATMA ALAUDDIN Vs. MUMNA MIRANJI HAJI

JUDGEMENT

(1.) THIS is a wife's second appeal arising out of her suit against the respondent husband for a dissolution of her marriage under Section 2 of the Saurashtra Dissolution of Muslim Marriages Act, No. XXVI of 1952, the grounds for the dissolution alleged being fl) that she was treated cruelly. (2) that she was not treated equitably in accordance with the injunctions of the Koran, and (3) that the defendant had neglected or had failed to provide for her maintenance for a period of two years prior to the suit. The parties ace Mahomedans and were married some time in about 1946-47 and they lived together for about two or three years, after which the plaintiff has gone to live with her parents. The husband's defence was that he had made attempts to bring back the plaintiff to his house and that the plaintiff had, without any justifiable reason, refused to come and live with him, that he had not neglected nor had failed to provide for her maintenance for a period of two years nor bad he treated her cruelly nor was there any truth in the allegation that he did not treat her equitably in accordance with the injunctions of the Koran. The learned trial Judge disbelieved the plaintiff's allegation that she had been beaten and driven out by the defendant from his house after depriving her of her clothes and he also disbelieved the defendant's plea that she had left hint at the instigation of her brother. He held that after the plaintiff went to live with her parents, the defendant bad made efforts two or three times to bring her back to the matrimonial house but that the plaintiff had declined to live with the defendant. But in the learned Judge's opinion, this was not sufficient and that the efforts should have been continued to a period within two years prior to the suit. He disbelieved the allegations of cruelty but held that the defendant had failed to give her equitable treatment in accordance with the injunctions of the Koran. However his decision was rested on the ground contained in Section 2 (ii) of the Saurashtra Dissolution of Muslim Marriages Act, viz. , that the defendant had neglected or failed to provide for the plaintiff's maintenance and on this ground he gave a decree for a dissolution of the marriage.

(2.) ON appeal the learned Assistant Judge accepted the trial Court's finding that cruelty was not proved and as regards the inequitable treatment ha held that the defendant had married a second wife only a short time prior to the suit during which time the plaintiff was not living with the defendant and there was no occasion for treating the plaintiff not equitably in accordance with the injunction of the Koran. On Section 2 (ii) of the Act the learned appellate Judge held that mere failure to provide for maintenance of the wife did not amount to neglect or failure within the meaning of the said clause find that on a true interpretation of the clause it was necessary to see as to on account of whose fault the provision for the wife's maintenance had not been made. He found on the facts that the husband had made repeated attempts to call back the wife but the wife was recalcitrant and had refused to live with the husband and that in these circumstances it could not be said that there was any wilful neglect or failure On the part of the husband to provide for the Wife's maintenance and, therefore, the requirements of Section 2 (ii) of the Act had not" been complied with and the wife was not entitled to a decree for dissolution of the marriage. Accordingly the learned Judge reversed the trial Court's decree and dismissed the suit with costs. The plaintiff has preferred this second appeal.

(3.) MR. Joshi appearing for the appellant has not pressed the contention regarding the alleged cruelty of the husband nor the ground under Section 2 (viii) (f) relating to the treatment not being equitable in accordance with the injunctions of the Koran and he has confined tile appeal to the ground contained in Section 2 (ii) of the Act. His contention is that this is a suit brought under a specific Statute and the language of the Statute has to be given its natural interpretation and that once it is proved that the defendant has failed to provide for the wife's maintenance then it ipso facto follows that he has neglected or failed to maintain her within the meaning of the said clause, and considerations of the husband's liability to maintain the wife arising under the Mahomedan or Anglo Mahomedan Law do not at all arise and in support of his contention he has relied upon Mt. Noor Bibi v. Pir Bux, AIR 1950 Sind 8 (A ). An earlier decision of Lobo, j. , in Mt. Khatijan v. Abdulla, AIR 1943 Sind 65 (B), was there dissented from and Tyabji, C. J. , held in accordance with his own earlier view, that where a husband has failed to provide maintenance for the wife for a period of two years immediately preceding the suit, the wife would be entitled to a dissolution of her marriage under Section 2 (ii) of the Act in spite of the fact that on account of her conduct in refusing to live with the husband she would not have been entitled to enforce any claim for maintenance against the husband in respect of the period during which the husband had failed to maintain her. He held that considerations of circumstances governing the husband's liability to maintain the wife under the Mahomcdan Law were irrelevant to a case under the Dissolution of Muslim Marriages Act, 1939, and that words of the Statute must be given their natural interpretation. He observed -