Skip to content


Mst. Zoona Vs. Mohamad Yakub Najjar - Court Judgment

LegalCrystal Citation
SubjectFamily
CourtJammu and Kashmir High Court
Decided On
Case NumberCivil Second Appeal No. 25 of 1981
Judge
Reported inAIR1983J& K78
ActsDissolution of Muslim Marriages Act, 1939 - Section 2; ;Mohammedan Law
AppellantMst. Zoona
RespondentMohamad Yakub Najjar
Appellant Advocate Abdul Qayoom, Adv.
Respondent Advocate J.N. Langer, Adv.
DispositionAppeal dismissed
Cases Referred and Smt. Rabia Khatoon v. Mohd. Mukhtar Ahmad
Excerpt:
- .....to failure of maintenance the trial court found, and rightly so, that the respondent had failed to provide maintenance to the appellant for a period of more than two years prior to the institution of the suit. she examined all the aforesaid witnesses to depose to the fact that they had gone to the respondent's house at her instance and had told him to bring her back to his home, but he had given a blank refusal and had told them that he did not want her at all the demand for providing her maintenance, there can be no manner of doubt, was implicit in these statements. in view of this evidence, the finding recorded by the lower appellate court that the appellant failed to prove that she had demanded maintenance from the respondent, is clearly erroneous, and that recorded by the trial court.....
Judgment:

I.K. Kotwal, J.

1. The appellant in this appeal is the wife, whose suit few das-solution of her marriage wife the respondent her husband, was decreed, by the trial Court, but was dismissed on appeal by the lower appellate Court.

2. The salt was brought by her under Section 2(ii), (iv), and (viii) of the Dissolution of Muslim Marriages Act, 2003, hereinafter to be referred to as the Act, on the allegations that her marriage with the respondent was solemnized nearly six years prior to the institution of the suit. Hardly two years had passed, when she was given a severe besting by the respondent and was turned, out of her matrimonial home, after snatching all her ornaments and clothes. She sent a number of persons to the respondent to persuade him to take her back to his fold and provide her maintenance, but he refused to do so and did not resume cohabitation with her, nor did he provide any maintenance to her ever since she was turned out by him.

3. The respondent denied all these allegations and resisted the suit alleging that the appellant had left his house of her own free will in furtherance of plan, and had refused to return even after he had gone himself and had also sent a number of persons to her to persuade her to come back to his house. She had also taken all clothes and ornaments with her. He was willing to provide her all the maintenance and resume-matrimonial relations with her, provided she too was prepared to live with him.

4. This controversy gave rise to a number of issues, out of which issues Nos. 1 and 4 related to cruelty, issues Nos. 2 and 3 to failure of maintenance despite demand, And issue No. 5 to failure to resume cohabitation. The parties joined the issues and led evidence on them, on consideration whereof the trial Court found against the appellant on Issues Nos. 1, 4, and 5, but found in her favour on Issues Nos. 2 and 3, and consequently passed the decree prayed for in favour of the appellant.

5. On appeal the learned District Judge refuse to hear the appellant on the findings recorded by the trial Court, on issues Nos. 1, 4 and 5 on the ground that the cross-objection taken by her in regard to these findings was barred by time and thereby confirmed the findings of the trial Court on these issues. He, however, upset its findings on Issues Nos. 2 and 3 and dismissed the appellant's suit by holding that even though the respondents had failed to maintain her for a period of more than two years, yet she was not entitled to any decree, for she had failed to prove that she had made any demand to the respondent to provide her maintenance.

6. As before the lower appellate Court, findings of the trial Court on Issues Nos. 1, 4 add 5 relating to cruelty and failure to resume cohabitation for a period of three years were attached before me as well. At this juncture it as necessary to paint out that the lower appellate Court committed an error oflaw in refusing to hear the appellant on these findings. The appellant had claimed the decree on three grounds, viz., cruelty, failure of maintenance for a period of not less than two years, and failure to resume cohabitation for a period of three years. Out of these, the trial Court found only one ground i. e., failure of maintenance in her favour, and granted the decree prayed for on this ground simpliciter. There was thus no part of the decree which it could be said, was passed by the trial Court against the appellant. She had claimed a decree for dissolution of her marriage with the respondent, which was granted in her favour. She thus got all that she had asked for; no matter that she got it on one ground only, or on all the grounds pleaded by her. No part of the decree being thus against the appellant, she was not required to take any cross-objection against any part of it, and could have supported, the same before the lower appellate Court on the two grounds found against her by the trial Court, by assailing its findings on them. The bar contained in Order 41 Rule 22 Civil p. C. was not attracted to her case.

7. Even so, these findings of the trial Court are clearly unassailable. The witnesses produced by the appellant to prove these issues are Gh. Mohi-ul-Din Najar, Gh. Hassan Yatu, Salam Yatu, Gh. Nabi Yatu, Gani Yatu, and Mohd. Akbar, all residents of Nagam. The beating is alleged to have been given to her at village Kralapora. No witness from this village has been produced to prove this fact. Out of the aforementioned, witnesses, P. W. Gh. Mohi-ul-Din is the real brother of the appellant. Statements of the other witnesses on the point of cruelty are also not of much help to her. Whereas P. W. Gh. Hassan Yatu stated that the respondent and his parents had merely abused the appellant when they had turned her out of their house, P. W. Gani Yatu stated that she was caught hold from her hair by the respondent and was given a severe beating by him. The trial Court also noted the demeanour of this witness, who it found, was very clever and cunning, and would take time to reply the questions put to him. P. W. Salam Yatu was fair enough to concede that no beating was given to the appellant in his presence. P. W. Ghulam Nabi Yatu merely saw the appellant weeping and bailing and the knowledge of P. W. Mohd Akbar is based upon the complaint that was made to him by the appellant that the treatment of her in-laws with her was not good. On the other hand all the witnesses examined by the respondent have with one voice stated that as long as the appellant had stayed in the respondents house at Kralapora, she was treated well by him. The witnesses examined by him belong to village Kralapora, and are reasonably expected to have the knowledge of the relations between the parties.

8. There is also variance between the pleading of the appellant and the evidence led by her on the issue that the respondent failed, to resume cohabitation with her for a period of three years prior to the institution of the suit. Whereas in her plaint she averred that she stayed in her husband's house for two years after her marriage, her witnesses stated that she remained there for hardly a month or so. On the other hand the witnesses examined by the appellant stated that the appellant had left her matrimonial home a little more than two years prior to the institution of the suit. The trial Court, therefore, rightly disbelieved her witnesses that the parties failed) to resume matrimonial relations at least three years prior to the institution of the suit, which is the basic requirement of Section 2 (iv) of the Act, In this state of evidence, the trial Court was perfectly justified in deciding issues 1, 4 and 5 against the appellant. Its findings on these issues are, therefore, confirmed.

9. As regards the issue relating to failure of maintenance the trial Court found, and rightly so, that the respondent had failed to provide maintenance to the appellant for a period of more than two years prior to the institution of the suit. She examined all the aforesaid witnesses to depose to the fact that they had gone to the respondent's house at her instance and had told him to bring her back to his home, but he had given a blank refusal and had told them that he did not want her at all The demand for providing her maintenance, there can be no manner of doubt, was implicit in these statements. In view of this evidence, the finding recorded by the lower appellate Court that the appellant failed to prove that she had demanded maintenance from the respondent, is clearly erroneous, and that recorded by the trial Court that such a demand was madeis clearly warranted on the evidence recorded in the case.

10. The appellant having failed to show that she was beaten up to leave her husband's house, the case of the respondent that she had gone out of his house of her own free will in the company of her father to attend her brother's marriage, and had thereafter refused to return at the behest of her father on account of some land dispute, becomes highly credible and has to be accepted. Not only the witnesses of the respondent, but some of her own witnesses have stated that there was a land dispute between her father and the father of the respondent, which indirectly came in the way of matrimonial relations of the parties. There is ample evidence on the record to show that such a dispute did exist. D. Ws. Mohd Yusuf, Gh. Qadir Mir, Gh. Rasul Najar and Mohd. Shan depose to this effect. They further stated that they went to the appellant and asked her to come back to the respondent, but she at the behest of her father refused to do so due to some land dispute. These statements inspire confidence, more so, because Gh. Rasool Najar, one of the witnesses examined by the respondent, happens to be common relation of the parties. Statements of the appellant's witnesses that the respondent had told them that he did not want her at all do not appear to reflect truth. If it were a fact that he really did not want her, or wanted to get rid of her, he in all likelihood must have seized the opportunity and straightway admitted the appellant's claim for a decree of dissolution of marriage. He should not have, in these circumstances, resisted her suit tooth and nail. Obviously, therefore, the appellant had no reason to stay back till the land dispute between the parents of the parties was finally resolved.

11. Neither the trial Court, nor even the lower appellate Court found to the contrary. The trial Court has held that even though the appellant had no reason not to go to live with her husband, she could yet get the marriage dissolved, as in its opinion, irrespective of the fact whether or not she had any justification for refusing to live with the respondent, the latter was bound to maintain her, once she had asked for it, as such, he could have refused to do so only at the peril of the dissolution ofhis marriage with the appellant. For this, it relied upon a Single Bench decision of the High Court of Kerala reported as A. Yousuf Rawther v. Sowramma, AIR 1971 Ker 261. The lower appellate Court, however, shifted its stand immediately after it found that the appellant had no justification for not living with her husband, and dismissed her suit by holding that she had failed to prove that she had made any demand for maintenance, which in contradistinction to Clause (ii) of Section 2 of the Dissolution of Muslim Marriage Act (Central Act No. VIII of 1939), was a precondition for obtaining a decree under Clause (ii) of Section 2 of the Act. Decision of this appeal, therefore, turns upon the question: Can a wife claim a decree for dissolution of her marriage under Section 2 (ii) of the Act on the failure of her husband to provide her maintenance for a period of two years after a demand in that behalf has been made by her to him, even if it is shown that she had no justification not to live with him.

12. There is undoubtedly a cleavage in judicial opinion on the point One view is that on the plain language of Section 2 (ii) of the Act, the husband is bound to maintain the wife in all circumstances, even if she had no justification for living separately from him. The clear words used in the Section, according to this view, must be given effect to, and a right in the wife to claim maintenance from her husband should not be read into the section of which it does not specifically speak. (See Mt. Akbari Begum v. Zafar Hussain, AIR 1942 Lah 92, Mt. Zainaba v. Abdul Rahman, AIR 1945 Peshawar 51, Mt. Noor Bibi v. Pir Bux, AIR 1950 Sind 8 and A. Yousuf Rawther v. Sowramma, AIR 1971 Ker 261). It is this view which prevailed with the trial Court, in particular, the following observations of Krishna Iyer, J., in AIR 1971 Ker 261 (at p. 270) (supra):

'.........For all these reasons, I holdthat a Muslim woman, under Section 2 (ii) of the Act, can sue for dissolution on the score that she has not as a fact been maintained even if there is good cause for it--the voice of the law, echoing public policy is often that of the realist, not of the moralist.'

13. The other view is that the husband is net bound to pay maintenance to hiswife in all cases. Where the wife is not willing to discharge her marital obligations towards her husband, she is not entitled to claim maintenance from him, The husband, according to this view, is not bound to follow her to provide her maintenance wherever she goes, unless she can show some legal justification for net living with, cr not discharging her marital obligation towards him. (See Mt. Khatijan v. Abdulla, AIR 1843 Sind 65, Mt. Badrulnisa Bibi v. Syed Mohammad Yusuf, AIR 1944 All 23, Zafar Hussain v. Mt. Akbari Begum, AIR 1944 Lah 336, Mt. Umat-ul-Hatiz v. Talib Hussain, AIR 1945 Lah 56. Mt. Shamim Fatma v. Ahmad Ullah Khan, AIR 1947 All 3, Jamila Khatun v. Kasim Ali Abbas Ali, AIR 1951 Nagpur 375 Anur Mohd. v. Mt. Bushra, AIR 1956 Raj 102 and Smt. Rabia Khatoon v. Mohd. Mukhtar Ahmad, AIR 1966 All 548).

14. In AIR 1944 All 23 (supra), for instance, the expressions neglect and failure to provide maintenance occurring in Section 2 (ii) were explained by the Division Bench in these words :

'..... The words 'has failed to provide' are not very happy, but even they imply an omission of duty. Where the Wife through her own conduct leads the husband to stop the maintenance, the Court will not allow dissolution of marriage for that would be giving her a benefit--if benefit it can be called--arising from her own wrongful acts. It may be that the husband is too poor to maintain the wife and then perhaps it will be open to the wife to claim dissolution of marriage for even in that case there might be some omission of duty on the part of the husband although such omission may be due to circumstances beyond his control. It is to cover such cases that the words 'without reasonable cause' have been emitted from clause (ii) but where the wife oar her parents as entirely to blame and no blame attaches to the husband it is not possible for the Courts to say that the husband has failed to provide for the maintenance of the wife....'

This section again fell for interpretation in AIR 1966 Raj 102 (supra) and was interpreted by the Court thus:

'........ 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 bewithout any justification. For ii there is justification, there cannot be said to be neglect. Neglect or failure implies non-performance of a duty. But if the husband is released from the duty on ac-count of the conduct of the lady her-self, the husband cannot be said to have neglected or failed to provide maintenance. In the present case, as aforesaid, there was neglect or failure to pro-vide maintenance.'

15. A similar view was taken by Lahore High Court in AIR 1944 Lah 336 (supra) wherein the contrary view taken by Abdul Rashid, J., in AIR 1942 Lah 92 (supra) was overruled by the Division Bench and the judgment of the learned single Judge reversed in the Letters Patent Appeal preferred against the same,

16. The view taken in these decisions appears to he more commendable. Any obligation on the part of the husband to maintain his wife, necessarily postulates a corresponding right in the wife to claim it. It is more so, because the relations between the spouses arising out of a Muslim Marriage are contractual in nature. Under the Mohammadan Law, the husband is not obliged to maintain his wife, if she is not willing to live with him and, discharge her marital obligations without any justification. Section 2 (ii) cannot be interpreted to envisage an absolute and unfettered right in the wife to be maintained by her husband under all circumstances, however faulty her own conduct may be, on the general rule of interpretation of statutes that clear words used in a statute should ordinarily be given effect to. True, this section does not specifically say that the wife should have a right to claim maintenance, nevertheless, such a right has to be read into the section, for unless it is so read, it is bound to bring it into conflict with the aforesaid general principle of Mohammedan Law. The intention behind enacting the Act was to supplement the principles of Mohammedan Law relating to matrimonial relations of spouses, but not to supplant them. In order, therefore, to determine its true ambit and scope. Section 2 (ii) has to be read in conjunction with Mohammedan Law, and cannot be read in isolation from it. In taking this view I am supported by the following observations made by Mudholkar, J. in AIR 1951 Nag 375 (supra):--

'.......Where, therefore, the question arises whether there has been failure onthe part of the husband to maintain his wife, the question must necessarily arise whether the wife was at the relevant time entitled to be provided with maintenance. It is true that Act VIII (8) of 1939 crystallises a portion of the Muslim law as stated by the learned Judge in his previous decision but it is precisely for that reason that it must be taken in conjunction with the whole of the Muslim law as it stands,'

17. Viewed thus, the appellant having failed to go back to her husband without any justification, she was not entitled to claim any maintenance from him, so long as she lived in her father's house. Consequently, the respondent, granting that he failed to provide her maintenance there, he cannot be said to have neglected or failed to provide maintenance to the appellant, to attract the mischief of Section 2 (ii). The decree of dismissal of her suit passed by the learned District Judge has, therefore, to be maintained, though on a ground different from the one relied upon by him.

18. In the result the appeal fails, which is dismissed accordingly, but in the circumstances of the case, without any order as to casts.


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