AHMED ABDUL QADEER Vs. RAFFAT BANU

JUDGEMENT

(1.) The Second Appeal raises an interesting question relating to interpretation of Clause (ii) of Section 2 of the Dissolution of Muslim Marriages Act, 1939 (hereinafter referred to as "the Act"). there has been a divergence of opinion among the several High Courts in India on this question and, it appears, there is no decision of either the Madras High Court on this question.

(2.) The parties to this appeal were married in November 1958. They have two daughters also who are now said to be aged about 17 years and 16 years respectively. After the marriage, the husband (appellant herein) was living in the house of his wifes parents. He left that house in July, 1971 on account of certain difference. Thereafter, the respondent filed a petition under Section 488, Cr. p. C. for maintenance for herself and her two daughters, which was allowed to the extent of daughters only. She then instituted the present proceedings for dissolution of marriage on the ground that the husband has failed to provide for her maintenance for a period of two years. The husband opposed the said suit. The trial Court came to the conclusion that the wife is not entitled to maintenance, because she was living away from the husband without any reasonable cause and, for that reason, she was disentitled for claiming any maintenance from the husband. If so, it was held , the husband cannot be said to have failed to maintain her. The suit for dissolution of marriage was, accordingly, dismissed. In appeal, however, the learned Addl. Chief Judge, City Civil Court, Hyderabad, following the decision reported in A. Yousuf v. Sowramma, AIR 1971 Ker 261 held that for the purpose of Section 2 (ii) of the Act, the circumstances or reasons for which the husband has failed to provide maintenance are immaterial and that, so long as it is proved that the husband has failed to provide maintenance for a period of two years, the wife is entitled to a decree for dissolution. Even if the wife was disentitled for claiming maintenance by her own act or conduct, even then it was held, it makes no difference to the wifes right to claim dissolution on the said ground.

(3.) The Dissolution of Muslim Marriages Act, 1939 was passed by the Indian Legislature with a view to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of Marriage by women married under Muslim Law. Section 2 of the Act, in so far as it is relevant for our purposes, reads:--