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Mst. Mabiya Khatun Bibi Vs. Shaikh Anwar Ali - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtKolkata High Court
Decided On
Case NumberLetters Patent Appeal No. 2 of 1968
Judge
Reported inAIR1971Cal218,75CWN216
ActsDissolution of Muslim Marriages Act, 1939 - Section 2
AppellantMst. Mabiya Khatun Bibi
RespondentShaikh Anwar Ali
Appellant AdvocateApurbadhan Mukherjee and ;Hrishikesh Chatterjee, Advs.
Respondent AdvocateHemesh Chandra Sen, Adv.
DispositionAppeal dismissed
Cases ReferredSmt. Rabia Khatoon v. Mohd. Mukhtar Ahmad
Excerpt:
- .....on the around that the husband ha3 failed or neglected to provide maintenance for her. 2. our learned brother r. n. dutt, j. in the connected second appeal answered the above question in the negative agreeing with the lower appellate court in its view on the said point. in support of his said conclusion, our learned brother and the lower appellate court referred to several decisions, namely, kadu v. smt. koleman bibi, (1935) 39 cal wn 876, syed abbas ali v; nazernunnessa begum, (1939) 43 cal wn 1059, najiman nissa begum v. serajuddin ah-med khan, air 1946 pat 467 jamila khatun v. kasim ali abbas ali, air 1951 nag 375. 3. in their judgment, they also referred to the contrary view, expressed in mt. noor bibi v. pir bux, air 1950 sind 8. 4. they, however, preferred to follow the.....
Judgment:

P.N. Mookerjee, J.

1. The only point, arising in this Letters Patent Ap-peal is to the effect whether a Mohamedan wife, who has left the husband voluntarily and has refused to come back to him in spite of requests and had no iusti-fiable ground for staying away from the husband, could claim a dissolution of marriage on the around that the husband ha3 failed or neglected to provide maintenance for her.

2. Our learned brother R. N. Dutt, J. in the connected Second Appeal answered the above question in the negative agreeing with the lower appellate court in its view on the said point. In support of his said conclusion, our learned brother and the lower appellate Court referred to several decisions, namely, Kadu v. Smt. Koleman Bibi, (1935) 39 Cal WN 876, Syed Abbas Ali V; Nazernunnessa Begum, (1939) 43 Cal WN 1059, Najiman Nissa Begum v. Serajuddin Ah-med Khan, AIR 1946 Pat 467 Jamila Khatun v. Kasim Ali Abbas Ali, AIR 1951 Nag 375.

3. In their judgment, they also referred to the contrary view, expressed in Mt. Noor Bibi v. Pir Bux, AIR 1950 Sind 8.

4. They, however, preferred to follow the preponderant judicial opinion on the point, represented by the first set of cases, and were not inclined to accept the single decision, reported in AIR 1950 Sind 8, supra.

5. At the hearing before us, our attention has been drawn to another decision, a later one, reported in Smt. Rabia Khatoon v. Mohd. Mukhtar Ahmad, AIR. 1966 All 548, which also took the same view on the point as the first set of cases abovementioned.

6. Having considered the matter in the light of the above authorities and the relevant principles of law, we are of opinion that the decision in the first set of cases, apart from weight of authority, is more acceptable on principle. In this view, we would agree with our learned brother R.N. Dutt, J. in disallowing the plaintiff's claim in the instant case and uphold the dismissal of her suit.

7. This appeal will, accordingly, fail and it will be dismissed.

8. There will be no order for costs, either in this Court or in any of the courts below.

Amiya Kumar Mookerji, J.

9. I agree.


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