1. Respondent 1 is the legally wedded wife of the appellant. She filed a suit for the recovery of Rs. 525/- being the amount of dower, for the maintenance amount of Rs. 540/- for three years previous to the suit; for directing the defendant to fulfil conditions of the decree in favour of the appellant (Order Section 310 of 39-40 on the file of the Munsiff, Shimoga), or in the alternative for a decree granting divorce to the plaintiff by the dissolution of the marriage between herself and the appellant. The appellant denied his liability to pay either the dower or the amount of maintenance claimed; regarding the relief of fulfilment of the conditions in Order Section 310 of 39-40, he pleaded that the conditions were too onerous to be complied with and that respondent 1 is not entitled to the dissolution of the marriage as the requirements for the grant of the relief are not existing. The trial Court decreed the suit for Rs. 250/- being the prompt portion of the dower and the rest of respondent 1's claim was dismissed. On appeal the Subordinate Judge gave a further relief by way of dissolution of marriage and directed the appellant to pay the institution fee due to the Government on the appeal memo. The defendant (appellant) has preferred the second appeal against the said decree.
2. The main question that is argued is about the decree granting divorce. The decree in Order Section 310/39-40 was for the restitution of conjugal rights filed by the defendant against the plaintiff on fulfilment of five conditions of which the first condition is that the defendant should deposit Rs. 250/- being the prompt portion of the dower and the fifth condition isthat the defendant should give security of two respectable persons to the effect that he would properly look after the plaintiff. Admittedly neither condition has yet been fulfilled. In - 'Najiman Nissa Begum v. Serajuddin Ahmed Khan', AIR 1946 Pat 467 (A) it is laid down thus:
'Where the husband refuses to pay the prompt dower and takes the defence, when a suit has been instituted to recover it, that there was no prompt dower payable by him, that the wife has relinquished a portion of that dower debt and that the balance has been converted into deferred dower, but the Court decides that the wife is entitled to the payment of her dower debt which, however, remains still unpaid, the wife can refuse to go and stay with the husband and the husband is bound to maintain such a wife.
Consequently, where, before the institution of a suit by the wife for dissolution of marriage, the wife has not been paid any maintenance for over two years and is not paid any maintenance since the institution of the suit and the attitude of the husband is that he is not bound to pay maintenance unless and until the wife comes and stays with him, the facts come within the mischief of Section 2 (ii) and the wife is entitled to dissolution of her marriage.'
The circumstances of the present case are similar to that in the Patna case and attract-the principles laid down therein. Section 2(ii), (Mysore) Dissolution of Muslim Marriages Act, 1943, corresponding to the Indian Act, 1939 runs thus:
'A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds namely:--
x x x x (ii) that the husband has neglected or hasfailed to provide for her maintenance for aperiod of two years;'
Where the prompt dower yet remains unpaid, and the condition of protection is not fulfilled, the wife may refuse to live with her husband. Besides, it was the duty of the husband to maintain his wife, but he has not only neglected to do so for a period of three years prior to suit but has denied his liability to maintain. In consequence, the wife is entitled to a decree for divorce. In this view the decision arrived at by the learned Subordinate Judge is perfectly justified.
3. Regarding the direction that the appellant should pay the court-fee, due on appeal memoto Government, such order is fully within thejurisdiction of the appellate Judge, and in thepeculiar circumstances of the case, I see noreason to disagree with the direction. In confirming therefore the judgment and decree ofthe learned Subordinate Judge, this appeal failsand is dismissed, parties bearing their own costsin this Court.
4. Appeal dismissed.