M.S Menon, J.:— O.S No. 221 of 1952 of the District Court of Nagercoil is a suit by the appellant against his wife, defendant 1, and her parents, defendants 2 and 3, in which he prays for a decree in the lolloping terms:
“(A) That plaintiff is entitled to recover the person of defendant 1 as his lawfully wedded wife since the marriage subsists unaffected.
(B) That an injunction be issued against the defendants restraining them from effecting any kind of marital relationship between defendant 1 and another.
(C) Awarding the costs of this plaintiff from defendants 2 and 3 in case they contest the plaintiff's suit and awarding
(D) Such other reliefs as the Court may deem fit and proper.”
2. And the following extract from the order of the lower court summarises his case:
“The plaintiff alleges that he has married defendant 1 on 22-10-1123 and that they were living as husband and wife till 1124 Vrischigom when defendant 1 was taken to her parent's house at Manavalakurichi for a short stay and he left the place to attend to his business at Nagercoil leaving her there. But under some pretext or other her parents did not allow her to go with him in spite of his repeated requests and finally in the month of Adi 1125 when he said that he would take his wife, he was threatened with force by defendant 2 and so he had to leave the place without his wife. After some years he got a notice on 14-5-1951 from defendant 2 to the effect that defendant 1 has effected a divorce, signed by defendant 2, Katif (priest) and Secretary of the Village Committee. Immediately he sent registered replies to all those three people but he got reply only from defendant 2. On 23-5-1951 within 9 days of the receipt of the reply he sent a notice stating that defendant 1 has no right to effect a divorce under the Muhammadan Law and what is contained in the reply relating to divorce is false and that it has not taken place. He again sent a notice to the Village Committee on 2-12-1952 for which on 22-12-1952 he received a reply from Katif stating that he did not effect any divorce but his signature has been obtained fraudulently by the President of the Village…………..
3. The plaintiff prayed for and obtained an interim injunction in C.M.P No. 6172 dated 20-12-1952. It was, however, cancelled by the learned District Judge by his order dated 20-2-1953 and this Civil Miscellaneous Appeal is from that order of cancellation. The main question for decision in the suit will be whether defendant 1 has effected a valid divorce or not. There is no enactment in Travancore corresponding to the Dissolution of Muslim Marriages Act, 1939, and the desirability of such legislation has already been pointed out by this Court in ‘(1950) 5 Dom LR (TC) 398’.
4. The parties are followers of Shaffi in whom; according to the recent evaluation of Mr. Joseph Schacht (The Origins of Muhammadan Jurisprudence by Joseph Schacht) Muhammadan Jurisprudence reached its very apex to be followed merely by a time of consolidation and a long period of scholasticism. Under this school of law it is possible for a wife to annul her marriage without the intervention of the Court in certain specified circumstances and the circumstances in which she can do so are detailed in Ss. 205 and 207 of Tyabji's Muhammadan Law, third edition as follows:
“205. Under Shia and Shaffi law a marriage may, subject to S. 207, be annulled by the wife (without the intervention of the Court) on ground (1), (2) or (3) below; and under Shaffi law also on ground (4):
(1) the insanity of the husband, whether on not he has lucid intervals, & whether it come on before or after the marriage, and whether before or after consummation;
(2) the fact that the husband was prior to the marriage a eunuch; according to the opinion of some Shia Ithna Achari authorities (not endorsed by the Sharaiu'1-Islam) even if that condition supervenes;
(3) the husband's impotence with reference generally to all women, whether it comes on before or after the marriage contract; provided that the marriage has never been consummated;
(4) the husband's inability to maintain his wife.
“207. Section 205 is subject to (1) the option, being exercised without delay after the ground comes to the knowledge of the party concerned; and (2) where the ground is the husband's impotence, subject to the wife applying to the Court to fix a period of time for establishing it and if no sexual intercourse takes place during the period so fixed, the wife may annul the marriage without any further order of the Court.”
5. The only one of the four grounds that alleged before us as the basis of defendant 1's right of annulment was ground No. (4), namely, the husband's inability to maintain his wife. It is significant that this ground though indicated in para. 5 of the counter-affidavit in this Court is entirely absent in the fourteen elaborate paragraphs of her counter-affidavit before the lower Court. There is also no allegation either here or in the Court below as to when she came to know that her husband was financially incapable of maintaining her and hence it is impossible to decide on the materials before us the existence or otherwise of laches on her part.
6. The lower Court has apparently misunderstood the law on the subject as can be seen, from the following passage:
“On a consideration of the evidence of P.W 1 and other circumstances bearing on the case I come to the conclusion that defendant 1 was wilfully deserted by the plaintiff for several years without even making any provision for her maintenance and therefore she was competent to divorce the plaintiff.”
7. Desertion and non-payment of maintenance are not sufficient as neither of them in the case of quarrelling spouses need necessarily be founded on Jack of means and the consequent inability to maintain a wife.
8. It may be that defendant I will be able to establish that the plaintiff was unable to maintain her and that she exercised her right of annulment within a reasonable time after she came to know of her husband's inability to afford the necessary maintenance. But there can be no doubt that the balance of convenience is in favour of the issue of a temporary injunction restraining her from getting married a second time, for if she ultimately fails in her contention of a valid divorce the refusal of a temporary injunction at this stage may well have paved the way by then for bigamous marriage and an illegitimate child or children.
9. In these circumstances we reverse the order of the lower Court and grant a temporary injunction as prayed for by the plaintiff. The parties will bear their costs here and in the Court below. It is essential that a case of this type should be tried and disposed of as quickly as possible and we direct the District Court of Nagercoil to proceed expeditiously in the matter and see that the trial is completed without any delay whatsoever.
B/D.R.R
10. Appeal allowed.