1. In this case after I had proceeded to deliver judgment it was represented to me that there was a chance of an amicable settlement between the parties, the Advocate-General stating that his in-formation was that the wife was willing to come and stay with the husband, but her parents were not allowing her to do so. He, therefore, suggested that if the real wishes of the wife were ascertained and if she was unwilling to live with him, the husband will have no objection to the dissolution of the marriage. Accordingly I directed Mr. Subba Rao to himself proceed to the house of the wife in Cuttack and ascertain her real wishes. He informed me that the wife is not willing to stay with the husband owing to his behaviour in the past. Accordingly I proceed to deliver judgment.
2. In this appeal the principal question for decision is whether the facts proved entitled the wife to claim dissolution of her marriage with the respondent. The plaintiff is admittedly the married wife of the respondent. Marriage took place in 1925. The parties apparently lived as husband and wife till 1931 or 1932 when the wife was attacked with malaria in Balasore that is the place where the family of the husband resides. But the husband in the course of his duties had to remain away from Bala-sore. Thereafter she came to Cuttack or rather was brought to Cuttack by her bro—, there as it was alleged that she was not being properly looked after by the family of the husband during her illness. Soon after the defendant married another wife without the previous consent of the plaintiff. This was followed by a notice (Ex. 2) which was sent to the defendant on behalf of the plaintiff demanding from him her prompt dower and also maintenance at the rate of Rs. 40 a month. No reply was sent to this notice. The plaintiff then instituted a suit for recovery of the dower debt and also for return of certain moveables as it was alleged that she was not allowed to bring them from Balasore. In that suit the defence was that the plaintiff had voluntarily relinquished a portion of her dower debt and also had converted the balance to deferred dower. The matter came up to the High Court where it was decided that whether the wife's allegation that she was coerced to enter into the agreement to relinquish the dower debt was true or not, as the relinquishment took place when she was a minor, the defendant is bound to pay the full dower debt. The decree of the High Court was passed on 21st December 1937. That decree is being realised through the execution Court where the defendant has been able to get an order for instalments. I was informed that warrant of arrest was applied for by the wife to recover part of her decretal dues.
3. All the above facts are fully established and show that the feelings between the parties are so embittered that there would be no peace between the husband and wife if they live together. But if the law does not entitle the wife to dissolve her marriage this Court will not be able to help her. The suit for dissolution of marriage was based upon the provisions of S. 2, sub-cl. (ii) of Act VIII (8) of 1939, to the effect that if husband has neglected to maintain his wife for over two years she is entitled to claim dissolution. The defendant says that he is not bound to maintain his wife because she refuses to live with him notwithstanding his efforts to induce her to come and stay with him as his wife. She, rather her parents, refuse to allow her to do so. The wife on the other hand says that she is not bound to live with her husband until her dower debt has been paid and further that the husband has never asked her to come and live with him and has mercilessly neglected her and has not paid any maintenance. The learned Munsif did not believe the denial of the defendant of the allegation that the plaintiff left for Cuttack in 1932 after suffering from malaria, but he thought that she came to her father's house without any reason and without the permission of the husband. He also thought that there was no reason to disbelieve the evidence led on behalf of the defendant, that he came with an offer to take the plaintiff back to his house but met with cold rebuff from the parents of the plaintiff. In these circumstances the learned Munsif decided that no cause arose to the plaintiff to claim maintenance as she was not subjecting herself to the control of the husband. Accordingly he dimissed the suit.
4. On appeal the learned District Judge found as a fact that the husband has not been maintaining the wife sirree 1932, that she had cause to leave Balasore and came to Cuttack as alleged by her, but he thought that it was the duty of the wife to go back to the husband when she had recovered and it was not the business of the husband to come and ask his wife to return to him. The learned Judge did not think it necessary to give any finding upon the evidence which was led on behalf of the husband that he did come to fetch his wife back to go and stay with him. The attention of the learned Judge was drawn to para. 213 of Mulla's Muhamedan Law, 12th Edn., p. 227, where it is stated that the husband is not bound to maintain his wife who refuses herself to him or is otherwise disobedient, unless the refusal or disobedience is justified by nonpayment of prompt dower, but although he thought that there was some force in this contention, he did not accede to the argument in these words:
“I do not think, however, that this argument really assists the appellant because I have not been shown that apart from the legislation of 1939 failure to maintain a wife afforded any ground to divorce under the Muhamedan Law. That was a right accruing to the wife at any rate-as far as the Civil Courts are concerned by the Act of 1939. By that time the prompt dower was being-paid. Therefore at the time the Aetcame into operation as the wife was living separate from the husband, he was not under the duty to maintain her.”
5. Accordingly he dismissed the appeal.”
6. In my opinion upon the facts found the wife is entitled to a decree for dissolution. The husband refused to pay the prompt dower. He took the defence when a suit had been instituted to recover it that there was no prompt dower payable by him, that the wife had relinquished a portion of that dower debt and the balance had been converted into deferred dower. The High Court, however, decided in December 1937, that the lady was entitled to the payment of her dower debt. The dower debt is still unpaid. In these circumstances according to Baillie's Principles of Muhamedan Law quoted in para. 213 of Mulla's book, the wife can refuse to go and stay with the husband and the husband is bound to maintain such a wife. The suit was instituted on 31st July 1939 after the Dissolution of Muslim Marriages Act came into operation. The suit for recovery of dower debt was instituted in 1932 and, as already stated decided, in 1937. It follows that before the institution of the suit the lady had not been paid any maintenance for over two years. The lady is not being paid any maintenance since the institution of this suit. Indeed the husband's attitude in this Court was that he was not bound to pay maintenance unless and until the lady comes and stays with him. In these circumstances the facts come within the mischief of S. 2, sub-cl. (ii) of Act VIII (8) of 1939, and the lady is entitled to dissolution of her marriage.
7. The learned Advocate-General drew my attention to some authorities and it is desirable that I should deal with them. He relied very strongly upon a recent decision of Lahore High Court (A.I.R 1944 Lah. 336.1) That case was decided upon the facts that a Muhamedan wife cannot compel her husband to divorce his other wife and if she refuses to live with him unless he divorced his other wife, there is no liability on the husband to maintain the wife and his failure to do so would not entitle her to get a divorce under S. 2, sub-cl. (ii) of Act VIII (8) of 1939, The facts here are entirely different. Moreover the learned Chief Justice quoted with approval the passage which I have referred to above from Mulla's Muhamedan Law. The learned Chief Justice observes at p. 338 that Baillie and other Text book writers confirm the view that a Muhamedan husband is not legally bound to provide maintenance for his wife if the latter without reasonable cause refuses to live with him. In this case the lady had a reasonable cause for refusing to live with the husband because her prompt dower was not paid. In this view of the matter the husband was bound to maintain her during the period that he him-self was in fault. Reliance was placed upon A.I.R 1944 All. 23.2 The facts of that case are entirely different from the facts of the present case as it was observed there that where the wife through her own conduct leads the husband to stop the maintenance, the Court will not allow dissolution of marriage and specially where the wife or her Barents are entirely to blame and no blame attaches to the husband, it cannot be said that the husband has failed to provide for the maintenance of the wife. In the present case, upon the facts found, no blame can attach to the wife because it was the failure of the husband to carry out his contract that gives the wife a right under the Muhamedan Law to refuse to go and live with him. Mr. Subba Rao on the other hand referred, to the case in 210 I.C 5873 (a case entirely different on facts) and the decisions of two Single Judges of the Lahore High Court, 194 I.C 5674 and 199 I.C 8475, but I do not consider it profitable to deal with these cases.
8. It will be noticed that so far I have proceeded entirely upon the plain words of Section 2 of the Muslim Divorce Act, but I have also perused the evidence adduced on behalf of the defendant and I am not satisfied that the defendant ever made any honest effort to request his wife to come and live with him. The evidence leaves the impression in my mind that the witnesses are speaking of the time when the lady had instituted the dower suit. At or about that time undoubtedly an effort was made probably with a view to avoid the unpleasantness of the litigation which may be carried or already was in Court or possibly just before that when the notice was received by the husband in the year 1932 through a lawyer but no genuine effort has ever been made by the husband to induce his wife to come and live with him. I entirely disagree with the view of the learned District Judge that the wife herself should have gone to the house of the husband as it was not the business of the husband to go and ask his wife to return to him. The learned District Judge did not rely upon the evidence of her brother who spoke of the social custom prevailing amongst the family according to which the wife could not be expected to go to the husband without being sent for by the husband through a respectable person, if for some reason the husband was unable to go to the house of his wife. In my opinion, the learned Judge was ignorant of the well-known custom which prevails amongst the society to which the parties belong. No wife of the position of this family or of a family situated in similar circumstances would go to her husband's house unaccompanied by a proper escort sent by the husband, and if she went herself this would be considered derogatory to the position of the wife and also to the position of her family.
9. I am satisfied that the husband in this case has deliberately neglected to maintain his wife and that he has never made any attempt to induce his wife to come and live with him and be has never sent any one to bring his wife to him in a proper and decent manner. Further that the wife was perfectly within her rights in law to refuse to go to her husband so long as her dower debt was unpaid a portion of the dower debt is unpaid even till today. It is a satisfaction to me that the law as applied to the peculiar facts of this case allows me to dissolve this the between the plaintiff and the defendant as otherwise they would be forced to lead a life of bitterness and continued unhappiness. In the result I would allow the appeal, set aside the decision of “the Courts below and decree the suit of the plaintiff and grant her a decree dissolving her marriage which took place with the defendant in 1925. I would allow the plaintiff her costs in all the Courts. Leave to appeal is refused.
V.R/D.H
10. Appeal allowed.
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