1. This is a second appeal by the husband defendant in a suit for dissolution of marriage.
The respondent Mst. Bushra instituted a suit in the court of Munsif, Tonk on 3-8-1949, for dissolution of her marriage with the defendant, Hafiz Amir Mohd. She alleged that her marriage with the defendant had taken place about 25 years before the suit. She lived with the defendant for sometime but the defendant thereafter, treated her cruelly, assaulted her and turned her out of the house. It was alleged that thereafter, the defendant did not provide her with maintenance and that she was entitled to claim dissolution both on the grounds of cruelty and for failure to provide maintenance in view of the provisions of the Dissolution of 'Muslim Marriages Act. The defendant traversed the allegations and pleaded that the plaintiff of her own accord had left his protection and carried with her all the jewellery and ornaments on the pretence of joining a marriage in her father's family. It was alleged that the defendant was not bound to maintain her according to the Muslim law unless the wife agreed to remain with him and under his protection and obeyed his wishes. During the course of evidence, it was also urged that the defendant had obtained a decree for restitution of conjugal rights, but the plaintiff did not render herself unto the defendant even after the decree. The learned Munsif after considering evidence came to the conclusion that the relations between the parties were strained for more than 20 years and certain litigations civil and criminal had taken place between the parties and it would be in the interest of both the parties that this marriage be dissolved. He, therefore, gave a decree for dissolution of marriage by order dated 7-8-1950, On appeal the learned Civil Judge of Tonk came to the conclusion that during married life there were several assaults by the husband about twenty years before the date of the suit and any suit on that basis would be barred by limitation. He held however that the defendant had failed to maintain the woman without reasonable cause inasmuch as the wife was entitled to remain away from the husband for fear of assault. Since it was admitted that 'the husband had not taken steps to maintain the wife for about twenty years, he upheld the decree of the lower Court.
2. The second appeal by the husband came before a single Judge of this Court. It was argued that Dissolution of Muslim Marriages Act came to be enforced in Rajasthan on 26-1-1950 and the period of two years in which the husband's neglect or failure to provide for maintenance could give rise to a suit for dissolution should be a period after the enforcement of the Act. It was also contended that the failure or neglect to provide for maintenance which could 'give rise to a right to claim dissolution, must be a failure or neglect without sufficient reason and that in the present case, the husband had justification in refusing to provide maintenance for the wife as she was remaining away from him without any just cause. The learned Single Judge referred the case to a Division Bench as in his opinion there was a difference of opinion among the High Courts, on the two questions of law urged before him.
3. Before going into the question of law, it may be stated that the husband Hafiz Amir Mohd. in his statement admitted that the marriage took place about 25 years before the suit (1924 A. D.) & that his wife Mt. Bushra came to live with him for about twelve months after the marriage. He also admitted that on the next occasion his wife came to him after about four years and again remained with him for six months and thereafter she went away and did not return. The decree for restitution of conjugal rights is dated 7-3-1927 and therefore it appears that the wife came to live with the husband after the husband had obtained the decree The version of Mst. Bushra is that thereafter, the husband treated her cruely, assaulted her and turned her out of the house, whereupon she lodged a complaint in the court of the Magistrate and the husband was convicted. In support of that statement, she produced the judgment of the Magistrate Ex. P3 (8-8-1929). There remains no doubt therefore; that she had complied with the decree for restitution of conjugal rights, and thereafter, she went away on account of the cruelty of her husband. The separation was thus forced upon her and the failure to provide maintenance, thereafter was not justified on any ground whatsoever. The plea by the husband that he was always ready and willing to maintain her but that the wife neglected to come under his protection, is of little value. On the question of law, we are of opinion that the failure or neglect to provide maintenance in order to give rise to claim for dissolution, must be without any justification. For if there is justification, there cannot be said to be neglect. Neglect or failure implies non-perfomance of a duty. But if the husband is released from the duty on account of the conduct of the lady herself, the husband cannot be said to have neglected or failed to provide maintenance. In the present case, as aforesaid, there was neglect Of failure to provide maintenance.
4. On the second question, although the Act came into force in Rajasthan in 1950, it was a declaratory Act and therefore, it was not necessary that the period of neglect or failure should run for two years after the enforcement of the Act. It was sufficient if this neglect or failure could be proved to be of more than two years before the institution of the suit. It may be stated that although the Dissolution of Muslim Marriages Act had not come into force on the date of the institution of the suit, it had been brought into force before the passing of the decree and the failure had taken place for quite a number of years before the suit came to be decided. In that view of the matter, the decree of the lower court is correct and does not call for any interference.
5. The appeal is accordingly dismissed withcosts.