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 wife's 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, : AIR1971Ker261 held that for the purpose of Section 2 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 wife's 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:--
'2. 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:---
(i) xx xx(ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years;
(iii) xx xx(iv) that the husband has failed to perform, without reasonable cause his marital obligations for a period of three years....................'
4. A majority of the High Courts in India, including the Allahabad, Lahore, Nagpur, Rajasthan and Bombay High Courts, have taken the view that the words, 'has failed to provide for her maintenance' mean and imply a duty on the part of the husband to maintain his wife, which he has failed to perform. In other words, it was held that before the wife can invoke the said provisions, she must prove that she was entitled to maintenance which the husband has failed to provide. If the wife by her own act or conduct disentitles herself for maintenance from her husband, she cannot at the same time be allowed to sue for dissolution on the ground that her husband has failed to provide for her maintenance for a period of two years. The reason, obviously, is that the wife shall not be allowed to take advantage of her own wrong. It was held that the words 'failed to provide' must be understood as 'failed to provide without reasonable cause'. It was held that the absence of the words 'without reasonable cause'. It was held that the absence of the words 'without reasonable cause' in clause (ii) is immaterial and that, the said words are implicit and inherent in the language employed in clause (ii).
5. On the other hand, the Sind High Court and V. R. Krishna Iyer, J. (as he then was) of Kerala High Court have taken the view that the words 'failed to provide for her maintenance' mean only that, and nothing more. By contrasting the language of clause (iv) in Section 2, they pointed out that where in Legislature wanted to so provide, it would have clearly employed the words 'without reasonable causes'. The use of the said words in clause (iv) and the omission of such or similar words in clause (ii) was held to be significant. Moreover, it was held by Krishna Iyer, J. that clause (ii) in Section 2 must be understood consistent with the ethos of the Muslim law and the general sociological background which inspired the enactment of the said law. The learned Judge observed that though the Muslim law relating to dissolution of marriage and divorce is quite modern and realistic in its approach, the Court, and in particular the Judicial Committee of the Privy Council have placed an unwarrantedly conservative and pednatic interpretation thereon, with the result that the Muslim law on the subject tends to support the male chauvinism, reducing the wife to a totally subject and dependent status. He observed:--
'It is a popular fallacy that a Muslim male enjoys, under the Quoranic law, unbridled authority to liquidate the marriage ........... Muslim law, as applied in India, has taken a course contrary to the spirit of what the Prophet or the Holy Quoran laid down and the same misconception vitiates the law dealing with the wife's right to divorce.....' He then refers to the case of Jamila W/o Thabit-ibn-Quais, as also of Asma, one of the wives of Holy Prophet, to emphasise that while the sanctity of marriage is the essential basis of family life, the incompatibility of individuals and the weaknesses of human nature require certain outlets and safeguards if that sanctity is not to be made into a fetish at the expense of human life. He, therefore, disagreed with the other High Courts in India and held that under Section 2 of the Act, a Muslim woman can sue for dissolution on the score that she has not as a fact, been maintained even if there is good cause for it.
6. Before expressing my opinion on the subject, it would be appropriate to quote the following passage, which neatly summarises the right of a muslim wife to obtain or claim maintenance from her husband, from Mulla's 'Principle of Mohomedan Law' (16th Edition), occurring at page 301:--
'............ Failure to maintain:- Failure to maintain the wife need not be wilful. Even if the failure to provide for her maintenance is due to poverty, failing health, loss of work, imprisonment or to any other cause, the wife would be entitled to divorce. Mere inability of the husband to maintain his wife is no longer a ground for refusing a divorce (Manak Khan v. Mt. Mulkhan, AIR 1941 Lah 167). and it is absolutely immaterial whether the failure to maintain is due to poverty, failing health, loss of work, imprisonment or any other cause whatsoever (Satgunj v. Rahmar Dil ILT (1945) Karachi 327 : 224 Ind Cas 6: AIR 1946 Sind 48), unless, it is submitted, her conduct has been such as to disentitle her to maintenance under the Mohomedan Law; (Kunju Ismail v. Mt. Kedeja Unuma, : AIR1959Ker151 ). In 1942 it was held by the Chief Court of Sind that the Act was not intended to abrogate the general law applicable to Mahomedans, and 'the husband cannot be said to have neglected or failed to provide maintenance for his wife unless under the general Mahomendan Law he was under an obligation to maintain her.' The wife's suit for divorce was dismissed as it was found that she was neither faithful nor obedient to her husband, Mt. Khatijan v. Abdulla ILR (1942) Karachi 535 : (AIR 1943 Sind 65). So also was the wife's suit dismissed, where the wife, who lived separately, was not ready and willing to perform her part of marital duties (Mt. Umat-Ul-Hafiz v. Talib Hussain, AIR 1945 Lah 56; Jamila Khatun v. Kasim Ali, AIR 1951 Nag 375). Where the wife has not been paid her prompt dower, she is entitled to stay away from her husband and the husband is bound to maintain her. If he does not maintain her for a period of two years, the wife is entitled to divorce (Najiman Nissa v. Serajuddin (1946) 228 IC 198 : AIR 1946 Pat 467).....................'
7. Impressive and highly scholastic as it is, I am unable to persuade myself to agree with the view taken by Krishna Iyer, J, in A. Yousuf v. Sowramma, : AIR1971Ker261 . The provisions of the 1939 Act must be construed in a reasonable manner, which is one of the basic rules of interpretation. A wife, who by her own act or conduct, disentitles herself for maintenance cannot yet be allowed to take advantage of her own conduct and claim dissolution. The words 'failed to provide' do imply a duty to provide. It there is no such duty to provide, it cannot be said that the husband has failed to provide maintenance to his wife. Suppose a wife is of an immoral character, or she deliberately and against the wishes of her husband lives away from him without giving him her company which she is bound to, the husband cannot still be compelled to provide for her maintenance. The husband cannot be compelled to go on providing maintenance to enable the wife to lead an immoral life. It is true if a marriage break down, there must be an outlet; but, it cannot equally be forgotten that the dissolution of a Muslim marriage at the instance of the wife is governed by the provisions of the Act, and the words occurring in the enactment have to be given their ordinary and reasonable meaning nor are there any compelling reasons to place a highly restrictive meaning upon the said clause. The words 'without reasonable cause' must be deemed to be implicit in clause' must be deemed to be implicit in clause (ii), and also the absence of these words therein cannot, in my opinion, make any difference. More, a reading of the several clauses in Section 2 shows that a right is given to a Muslim woman to obtain the dissolution of her marriage where her husband is guilty of one or the other things mentioned in the several clauses, viz., that, his whereabouts have not been known for a period of four years; that, he has been sentenced to imprisonment for a period of seven years or upwards; that, he has failed to perform his martial obligations for a period of three years without any reasonable cause, that, he was impotent at the time of the marriage and continues to be so, and so on and so forth. In this scheme it would not be appropriate to introduce a ground which entitles the wife to divorce, even though the husband's conduct is totally blameless and where the conduct of the wife herself is blame-worthy.
8. For the above reasons, I agree with the view taken in Mt. Badrulnisa Bibi v. Mohammad Yusuf. AIR 1944 All 23; Zafar Hussain v. Mt. Akbari Begum, AIR 1944 Lah 336, Jamil Khatun v. Kasim Ali, AIR 1951 Nag 375; and Bai Fatma v. Mumna Miranji Haji : AIR1957Bom107 , in preference to the one taken in Mt. Noor Bibi v. Pir Bux, AIR 1950 Sind 8 and A. Yousuf v. Sowramma. : AIR1971Ker261 . With the result, the second appeal is allowed but, in the circumstances, there shall be no order as to costs.
9. Appeal allowed.