Skip to content


ittoochalil Meethal Moossa Vs. Pachiparambath Meethal Fathimas - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKerala High Court
Decided On
Case NumberS.A. Nos. 394 and 395 of 1978
Judge
Reported inAIR1983Ker283
ActsDissolution of Muslim Marriages Act, 1939 - Sections 2; Code of Civil Procedure (CPC) , 1908 - Sections 100
Appellantittoochalil Meethal Moossa
RespondentPachiparambath Meethal Fathimas
Appellant Advocate P.A. Mohammed (T) and; A.B. Jaleel, Advs.
Respondent Advocate M.A. Manhu, Adv.
DispositionAppeal dismissed
Cases ReferredYusuf Rowthan v. Sowramma
Excerpt:
family - right to maintenance - section 2 of dissolution of muslim marriages act, 1939 - matters pertaining to right of divorce and maintenance to muslim wife - section 2 (ii) entitles wife to decree of dissolution of marriage on husband's neglect or failure to provide for maintenance of wife for period of two years irrespective of whether husband had reasonable cause for withholding such maintenance - wife's right to maintenance conditional upon her continued readiness to submit to her husband and to be obedient to him - duty to provide maintenance to wife self-imposed to keep relationship intact and not duty corresponding to right of wife to claim maintenance against husband. - - under clause (ii) of section 2 a woman married under muslim law shall be entitled to obtain a decree..........menon, j. 1. these second appeals arise out of two connected suits, one for dissolution of a muslim marriage and the other for restitution of conjugal rights. as against the unbridled and arbitrary power of divorce a muslim male enjoys to what extent the muslim law concedes a right of divorce to the woman is the point for determination in these second appeals.2. both the suits were tried together and common judgments were pronounced by both the courts below. the courts below have concurrently found that a ground under clause (ii) of section 2 of the dissolution of muslim marriages act, 1939 has been made out by the wife against the husband. under clause (ii) of section 2 a woman married under muslim law shall be entitled to obtain a decree for the dissolution of her marriage on the.....
Judgment:

P.C. Balakrishna Menon, J.

1. These second appeals arise out of two connected suits, one for dissolution of a Muslim marriage and the other for restitution of conjugal rights. As against the unbridled and arbitrary power of divorce a Muslim male enjoys to what extent the Muslim law concedes a right of divorce to the woman is the point for determination in these second appeals.

2. Both the suits were tried together and common judgments were pronounced by both the courts below. The courts below have concurrently found that a ground under Clause (ii) of Section 2 of the Dissolution of Muslim Marriages Act, 1939 has been made out by the wife against the husband. Under Clause (ii) of Section 2 a woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on the ground 'that the husband has neglected or has failed to provide for her maintenance for a period of two years'. On the finding that the husband has neglected or failed to provide for the maintenance of the wife for a period of two years the suit by the wife for dissolution of marriage was decreed and the suit for restitution of conjugal rights by the husband was consequently dismissed. Krishna Iyer, J. (as he then was) in the decision reported in Yusuf Row-than v. Sowramma (1970 Ker LT 477) 8 (AIR 1970 Ker 261) has held that a man's failure to provide for the maintenance of the wife for the period of two years mentioned in Clause (ii) of Section 2 entitles the wife to a decree for dissolution of marriage whether or not the husband had reasonable cause for withholding such maintenance. Learned counsel for the appellant challenges the correctness of this decision in the light of the decisions of other High Courts taking a contrary view that a wife is entitled to a decree for dissolution of marriage only if she is able to satisfy the court that the husband has neglected or failed to provide for her maintenance without reasonable cause for the period aforesaid. Krishna Iyer, J. in para 10 of the decision in 1970 Ker LT 477 : (AIR 1971 Ker 261) refers to the conflict of decisions by the various High Courts in India on the question as to whether it is necessary for the wife to show that the neglect or failure to provide maintenance was also without reasonable cause. The learned Judge after referring to the pristine Islamic Law under which the wife is also conceded a right for dissolution of marriage in certain circumstances has chosen to follow the decision in Mt. Noor Bibi v. Pir Bux (AIR 1950 Sind 8) in preference to the decisions taking a contrary view.

3. Abdulla Yusuff Ali in his commentary on the 'Meanine of the Glorious Quran' commenting on Sura LXV states thus at p. 1561:--

'The relations of the sexes are an important factor in the social life of the community, and this and the following sura deal with certain aspects of it. 'Of all things permitted by law', said the Prophet 'divorce is the most hateful in the sight of God' (Abu-Daud Su-nan, xiii 3). While the sanctity of marriage is the essential basis of family life, the incompatibility of individuals and the weakness 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. That is why the question of divorce is in this sura linked with the question of insolent impiety and its punishment'.

That the Prophet himself had occasion to be distressed on account of the impudence of his wile Hadhrat Aisha is referred to at page 1569: --

'The impudence of Hadhrat Aisha once caused serious difficulties; the holy Prophet's mind was sore distressed and he renounced the society of his wives for some time. This renunciation seems to be referred to here (in Sura 16). The situation was nonetheless different for him because she was a daughter of Hadhrat Abu Bakr, one of the truest and most intimate of his companions and lieutenants. Hadhrat Umar's daughter Hafsa was also sometimes apt to presume on her position, and when the two combined in secret counsel and discussed matters and disclosed secrets to each other they caused much sorrow to the Holy Prophet, whose heart was tender and who treated all his family with exemplary patience and affection.'

Krishna Iyer, J. in the decision in Yusuf Rowthan (AIR 1971 Ker 261) refers to the divorce of the Prophet by Asma, one of his wives, it is stated, Asma asked for divorce before he went to her and the prophet released her as she had desired.

4. Maulana Muhammad Ali in his book 'The Holy Quran' says on the woman's right to divorce that --

'The Islamic law has many points of advantage as compared with both the Jewish and Christian laws as formulated in Deut, and Matt. The chief feature of improvement is that the wife can claim a divorce according to the Islamic law; neither Moses nor Christ conferring that right on the women: The Holy Quran refers to the rights of women for divorce and states 'and women have rights similar to those against them in a just manner........'

Under the Muhammedan Law a Muslim male enjoys absolute right and authority to effect a divorce. Mulla in his Principles of Mahomedan Law, 18th Edn. states thus at page 325, paragraph 308.--

'308. Divorce by talak.-- Any Mahomedan of sound mind, who has attained puberty, may divorce his wife whenever he desires without assigning any cause.' The learned author refers to a woman's right to divorce at page 336, para 319:--

'319. Khula and mubara'at.-- (1) A marriage may be dissolved not only by talak, which is the arbitrary act of the husband, but also by agreement between the husband and wife. A dissolution of marriage by agreement may take the form of khula or mubara'at.

(2). 'A divorce by khoola is a divorce with the consent, and at the instance of the wife, in which she gives or agrees to give a consideration to the husband for her release from the marriage tie. In such a ease the terms of the bargain are matters of arrangement between the husband and wife, and the wife may, as the consideration, release her dyn-mahr (dower) and other rights, or make any other agreement for the benefit of the husband'. Failure on the part of the wife to pay the consideration for the divorce does not invalidate the divorce, though the husband may sue the wife for it.

A khula divorce is effected by an offer from the wife to compensate the husband if he releases her from his marital rights, and acceptance by the husband of the offer. Once the offer is accepted, it operates as a single irrevocable divorce (talak-i-bain) (Sections 311(3), 312), and its operation is not postponed until execution of the khulanama (deed of khula).

(3) A mubara'at divorce like khula, is a dissolution of marriage by agreement, but there is a difference between the origin of the two. When the aversion is on the side of the wife, and she desires a separation, the transaction is called khula. When the aversion is mutual, and both the sides desire a separation, the transaction is called mubara'at. The offer in a mubara'at divorce may proceed from the wife, or it may proceed from the husband, but once it is accepted, the dissolution is complete, and it operates as a talak-i-bain as in the case of khula.'

Tyabji C. J. in the decision in Noor Bibi v. Pir Bux reported in AIR 1950 Sind 8 refers to the attitude of the Prophet in regard to a woman's right to divorce by the illustration of the well-known incident in the case of Jameela, the wife of Sabit Bin Kais, who hated her husband intensely although the husband was extremely fond of her. According to the account given in Bukhari (Bu. 68 : 11) Jameela appeared before the Prophet and admitted that she had no complaint to make against Sabit either as regards his morale or as regards his religion, she pleaded however that she could not be wholeheartedly loyal to her husband as a Muslim wife ought to be, because she hated him and she did not desire to live disloyally. The Prophet asked her whether she was willing to return the garden which her husband had given to her and on her agreeing to do so, the Prophet sent for Sabit, asked him to take back the garden, and to divorce Jameela. This incident during the lifetime of the Prophet is illustrative of the right of a Muslim wife to ask for and obtain a dissolution of her marriage when it was shown that the parties could not live 'within the limits of Allah'.

5. Section 2 of the Dissolution of Muslim Marriages Act 1939 is in recognition of the right of a Muslim woman to have her marriage dissolved on the specified grounds. The preamble to the Act itself states that it is an Act to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by woman married under the Muslim Law and to remove doubts as to the effect of renunciation of Islam by a married Muslim woman on her marriage tie.

6. Krishna Iyer J. in the decision in Yusuf Rowthan v. Sowramma (AIR 1971 Ker 261) has followed the decisions in Noor Bibi v. Pir Bux (AIR 1950 Sind 8) Khatijan v. Abdulla (AIR 1943 Sind 65) and Manak Khan v. Mt. Mulkhan Bano (AIR 1941 Lah 167). In the decision in Noor Bibi v. Pir Bux (AIR 1950 Sind 8) Tyabji C. J. on behalf of a Division Bench consisting of himself and Muhammad Bachal J. on the interpretation of Clause (ii) of Section 2 of the Act, stated that the plain ordinary grammatical meaning of the words 'has failed to provide maintenance' cannot be different from what it would be, for instance, if these words were used with reference to a Hindu or a Christian or a Parsi Husband. The learned Judge at page 12 states thus:--

'The question whether there was a failure to maintain was a pure question of fact, which did not in any manner depend upon the circumstances in which the failure had occurred. A husband may maintain a wife whether she was or was not, under the particular circumstances, entitled to maintenance; and similarly not maintain a wife, whether she was or not entitled to maintenance. As I pointed out in Hajra's case (Suit No. 288 of 1942), Muslim morals and ideas undoubtedly expect every husband to maintain his wife as long as the marriage subsists, even when the wife does not deserve to be maintained, and may not in law be able to enforce any claim for maintenance. It is therefore no less correct to speak of a man's failure to maintain his wife even when she is not entitled to claim maintenance, than it is to speak of a man's failure to pay his debts of honour on bets or his debts which have become time barred.'

In Mt. Akbari Begum v. Zafar Hussain (AIR 1942 Lah 92) Abdul Rasheed J. refers to the distinction in the language used in Clauses (ii) and (iv) of Section 2 and states:

'It is laid down expressly in Clause (iv) of Section 2 that where the husband has failed to perform without reasonable cause his marital obligations for a period of three years, the wife is entitled to a dissolution of her marriage. In Clause (ii) however the words 'without reasonable cause' do not occur. It must therefore be held that whatever the cause may be, the wife is entitled to a decree for the dissolution of her marriage if the husband fails to maintain her for a period of two years even though the wife may have contributed towards the failure of the maintenance by her husband.'

According to these decisions a wife's right to dissolution of marriage for the neglect or failure of the husband to provide for her maintenance cannot be linked up with her right to claim maintenance against the husband. Mulla at page 300 para 277 refers to the husband's duty to maintain his wife as follows:--

'277. Husband's duty to maintain his wife.-- The husband is bound to maintain his wife (unless she is too young for matrimonial intercourse), so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt dower, or she leaves the husband's house on account of his cruelty'.

Thus, a wife's right to maintenance is conditional upon her continued readiness to submit to her husband and to be obedient to him, but the requirement of Clause (ii) of Section 2, according to these decisions, is not dependent on the wife's entitlement' to maintenance. The only question is as to whether the husband has neglected or failed to provide for the maintenance of the wife whether she is entitled to it or not. Krishna Iyer J. on a consideration of the Islamic Law relating to a woman's right to divorce was inclined to accept the view expressed in these decisions as in consonance with the modern trend of thought in civilized societies. The learned Judge was not inclined to accept the contrary view expressed in the decisions in Badrulnisa Bibi v. Mohammad Yusuf (AIR 1944 All 23), Zafar Hussain v. Akbari Begum (AIR 1944 Lah 336) and Jamila Khatun v. Kasim Ali (AIR 1951 Nag 375). The view expressed in those decisions was accepted by a learned single Judge of the Andhra pradesh High Court in the decision in Ahmed Abdul Qadeer v. Raffat Banu (AIR 1978 Andh Pra 417) in preference to the decision of Krishna Iyer, J. in Yusuf Row-than v. Sowramma. The learned Judge of the Andhra Pradesh High Court states thus at page 419, para 7:--

'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 Yusuf v. Sowramma, AIR 1971 Ker 261. 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, if 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 that if a marriage breaks 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 (ii), and also the absence of these words therein cannot, in my opinion, make any difference. Moreover, 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 marital 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.'

7. Without much discussion of the subject a Division Bench of the Calcutta High Court in the decision in Mst. Mabiya Khatun Bibi v. Shaikh Anwar Ali, reported in AIR 1971 Cal 218 preferred to follow the view expressed in Jamila Khatua v. Kasim Ali Abbas Ali (AIR 1951 Nag 375) and other cases in preference to the decision in Noor Bibi v. Pir Bux (AIR 1950 Sind 8). Krishna Iyer J. in a later decision in Aboobacker Haji v. Mamu Koya, (1971, Ker LT 663)stated thus at page 666 :--

'I have examined this subject at some length in the case reported in Yusuf Rowthan v. Sowramma (1970 Ker LT 477) : (AIR 1971 Ker 261) and summed up the law to mean that where there has been an actual failure to provide for the maintenance of the wife even if it be because the wife has improperly declined to live with the husband, Section 2 Clause (ii) is fulfilled.'

8. Clause (ii) of Section 2 should be read in contradistinction with Clause (iv) as per which the wife is entitled to a decree for dissolution of her marriage on the ground that the husband has failed to perform 'without reasonable cause' his marital obligations for a period of three years. The words 'without reasonable cause' are significantly absent in Clause (ii). aS earlier stated, the Dissolution of Muslim Marriages Act, 1939 is an enactment to consolidate and clarify the Muslim law relating to a woman's right to obtain a decree for dissolution of marriage. The husband has absolute power to liquidate the marriage by pronouncement of 'talak'. The wife's right, for dissolution of marriage is confined to those grounds enumerated in Clauses (i) to (ix) of Section 2. If the husband wants the marriage relationship to continue, he should see that the wife does not get a ground under Clause (ii) of Section 2 to approach the court for a decree dissolving the marriage. If the wife is of immoral character or she deliberately and against the wishes of her husband lives away from him without giving him her company, it is open to the husband on his own accord to pronounce 'talak' and divorce her. If however he wants to retain the relationship between the parties, he may have to provide for the wife's maintenance whether she deserves it or not. The duty to provide maintenance to the wife under those circumstances is only self-imposed to keep the relationship intact and it is not a duty corresponding to the right of the wife to claim maintenance against the husband. As against the arbitrary power of the husband to liquidate the marriage, the wife gets a right for dissolution of marriage on the husband's neglect or failure to provide for her maintenance for a period of two years. This construction of Clause (ii) of Section 2 is in consonence with the Islamic law on the subject discussed above. There is, therefore, no justification in introducing the words 'without reasonable cause' into Clause (ii). The legislature in its wisdom, by providing these words in Clause (iv), has not thought it necessary to provide this restriction in Clause (ii). I therefore respectfully agree with the reasoning and conclusion of Krishna Iyer J, in the decision in Yusuf Rowthan v. Sowramma (1970 Ker LT 477): (AIR 1971 Ker 261). On the concurrent finding that the husband has failed to provide for the maintenance of the wife for a period over two years prior to the institution of the suit, the decision of the courts below granting a decree for dissolution of marriage between the parties is perfectly correct and does not call for interference in this second appeal. In view of the decree for dissolution of marriage, there cannot be a decree in favour of the husband for restitution of conjugal rights. The result therefore is both the second appeals fail and are dismissed, in the circumstances, without any order as to costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //