Badr-Un-Nissa Bibi v. Muhammad Yusuf

Collister and Bajpai, JJ.:— This is an appeal by the plaintiff, Mst. Badr-un-nissa Bibi, who brought a suit against her husband Syed Muhammad Yusuf under the provisions of Act VIII of 1939 for the dissolution of her marriage, for the recovery of her prompt dower and for the recovery of the goods specified at the foot of the plaint or Rs. 200 on account of the price thereof.

The court below was of the opinion that the dower of the plaintiff was fixed at Rs. 15,000 and she was, therefore, entitled to recover the prompt portion of the dower which would be Rs. 7,500. The court below further gave her a decree for Rs. 200 being the price of the articles left by the plaintiff at the defendant's place. No decree for dissolution of marriage, however, was granted by the court below, and the question that we have got to decide is whether on the facts established the plaintiff is entitled to a dissolution of the marriage under Act VIII of 1930.

The plaintiff appellant did not get her evidence printed but at the request of Dr. Faruqi appearing on behalf of the plaintiff we have examined the record for ourselves and gone through the evidence adduced by the plaintiff. The evidence consists of the testimony of the plaintiff herself, Muhammad Sirajul Haq her father, Muhammad Razi, Tirath Raj and Muhammad Amin. The court below was not satisfied on the evidence of these witnesses that any act of cruelty or desertion was established, nor was it clear from this evidence that the plaintiff's case came within either clauses (ii) and (iv) of section 2 or within clause (viii) (a), (d) and (f) of the same section. We have also gone through the evidence produced on behalf of the defendant and the conclusion at which we have arrived is that the parties were married in February, 1934, and that either the wife came to the husband's place for just a night (as she herself deposes) or she remained there for a month or so, but she undoubtedly went back to her father's place very soon afterwards. It was then discovered that she was about to be confined and it was thought desirable that she should remain at her father's place for her Confinement. This is only natural, but the trouble commenced just after the birth of a child. The parents of Badr-un-nissa decided to celebrate the occasion and had a nautch which was witnessed by the plaintiff also. This was not to the liking of the husband and he wrote a letter Ex. 1 in October, 1935 (the Judge says that Ex. 1 is of October, 1935) in which he protested strongly against the action of the wife in witnessing the nautch and he went to the extent of saying that he had given freedom now to the wife and that she might do whatever she liked and he would have nothing to do with her. A careful reading of the letter, however, shows that this was in the nature of a threat as he himself admitted in his evidence, and the letter wound up by saying that if the girl were to apologise within a week the action would be forgiven and forgotten; otherwise thousands of letters after a week would prove useless. We can understand the feelings of the defendant, and we do not agree with the contention advanced on behalf of learned counsel for the plaintiff appellant that the letter operates as a divorce ipso facto. This was a letter written by an irate husband and was couched in furious language, but there was an option given to the wife to offer an apology.

Apart from this letter there is very little evidence on the record to show that the husband ill-treated the wife. First of all, they never lived together for any length of time and there was not much occasion for any serious quarrel between the two, but it is said on behalf of the appellant that the defendant used to come, to the place of the plaintiff's father and quarrels used to take place there. We have reason to believe that the quarrels, if any, were due to the fact that whereas the defendant insisted that the plaintiff should go back to the defendant's house, the plaintiff and the plaintiff's parents were not willing to allow rukhsati. There is a great deal of evidence on behalf of the defendant to the effect that various attempts were made in 1935, 1936 and 1937 by outsiders to bring about a reconciliation and to induce the plaintiff's father to send the plaintiff to the defendant's place, but the plaintiff's father would not listen to it. The plaintiff is apparently the only child of her parents and it may be that out of their misguided love they were not prepared to send the plaintiff to the defendant's place, and this aversion to send the plaintiff might have led to the fact that the defendant being disgusted with the attitude adopted by the father of the plaintiff married a second time in the beginning of 1938.

It is then contended on behalf of the plaintiff that this second marriage is a ground for dissolution of the first marriage. Under the Muhammadan law a Muhammadan husband can marry four wives, but under the Act he has got to treat all of them equitably in accordance with the injunctions of Quran. In the present case it is said that the plaintiff is not being treated equitably; but the fault is either her own or of her parents. The husband has not been permitted to treat her at all, either equitably or inequitably, and we cannot think that the plaintiff is entitled to a dissolution of her marriage on this ground.

It is true that some articles of the plaintiff were left at the place of the defendant when she went there on the first occasion and it is said that the husband has disposed of the property or has prevented her from exercising her legal rights over it within the meaning of section 2, clause (viii)(d) of the Act. As we said before, the wife went only for a short time after her marriage to her husband's place, and these articles were probably left by her at the husband's place to be used by her again when she went back to her husband's place, but certain circumstances intervened and she was never allowed to go to the husband's place and the articles remained there. It cannot be said that the husband in any way disposed of her property or prevented her from exercising her legal rights over it.

The last and most formidable contention on behalf of the plaintiff was that regard being had to all the evidence in the case — whether adduced by the plaintiff or adduced by the defendant — the husband had neglected or had failed to provide for her maintenance for a period of two years. Very soon after the marriage the plaintiff came back to her parents place and ever since then the defendant has not been maintaining her. On one occasion the defendant's father took certain sweets to the plaintiff's place but those sweets were refused. This can hardly be said to be providing for her maintenance. The question is whether the husband has neglected or has failed to provide for her maintenance when the facts are such as we have discussed above. We were also asked to look at clause (iv) of section 2 where the words are: “…The husband has failed to perform, without reasonable cause, his marital obligations for a period of three years.” The submission is that clause (ii) does not use the word “without any reasonable cause” and the wife is entitled to a dissolution of the marriage on the mere, neglect or the failure of the husband to provide for her maintenance for a period of two years, and this may be with reasonable cause or without reasonable cause. We have given this part of the argument our anxious consideration, and we are of the opinion that the word “neglect” implies wilful failure and it cannot be said that in the present case there was any wilful failure on the part of the husband to provide for the maintenance of his wife. The words “has failed to provide” are not very happy, but even they imply an omission of duty. Where the wife through her own conduct leads the husband to stop the maintenance, the courts will not allow dissolution of marriage for that would be giving her a benefit—if benefit it can be called—arising from her own wrongful acts. It may be that the husband is too poor to maintain the wife and then perhaps it will be open to the wife to claim dissolution of marriage for even in that case there might be some omission of duty on the part of the husband although such omission may be due to circumstances beyond his control. It is to cover such cases that the words “without reasonable cause” have been omitted from clause (ii), but where the wife or her parents are entirely to blame and no blame attaches to the husband it is not possible for the courts to say that the husband has failed to provide for the maintenance of the wife. We have already said that this can in no case be said to be a case of “neglect” which implies wilful failure, nor do we think that this is a case where the Husband has failed to provide for the maintenance of the wife.

For the reasons given above, we dismiss this appeal, but under the circumstances of the case as the fault is not of the plaintiff herself we make no order as to costs.