Kerala High Court
Veeran Sayvu Ravuthar
Cites 14 Docs:
Section 2 in The Dissolution of Muslim Marriages Act, 1939
Section 2(ii) in The Dissolution of Muslim Marriages Act, 1939
Section 2 in The Code of Criminal Procedure Act, 1973
The Dissolution of Muslim Marriages Act, 1939
A. Yousuf Rawather V/S Sowramma of 24 June, 1970
1. Whether a Muslim wife residing in her own family house and away from her husband, is entitled to claim divorce on the ground under Section 2(ii) of the Dissolution of Muslim Marriage Act, 1939, hereinafter referred to as the Act, that her husband “has neglected or has failed to provide for her maintenance for a period of two years”, is the main issue raised in this case.
2. Divorce in Muslim law is a much debated topic, not only in courts; but among social activists, legislators and even among different groups in the community itself. Certainly that is with respect to the divorce coming from the husband, viz. ‘Talaq‘. At the same time the right of Muslim women to effect divorce is also a much debated issue among the Muslim themselves.
3. Marriage as per the Muslim law is in the nature of a contract. But it has got a religious sanction as well. That contract is to subsist during the life period of the couple or until they cannot live within the limits of the God. In his introduction to Chapter 65 of the Holy Quran – Al Talaqu – Abdulla Yousuf Ali quoted Abu David as Prophet has said
“Of all things permitted by law, divorce is the most hateful in the sight of Allah”.
Divorce has to be viewed in this perspective by every one who deals with Islamic law and not lightly. Thus the sanctity of marriage, the essential basis of family life, is recognised and upheld. But at the same time the incompatibility of individuals and weakness of human nature required certain outlets and safeguards, without ruining the sanctity of the marriage at the expense of human life. The principle of divorce is derived from Sunna as shown by the Prophet among Muslims. It is thus the basic principle of divorce in Muslim law that “of all things prompted by law divorce is the most hateful in the sight of God.” It has been reported by several accredited authors on Sunna, as prophet said so. Law gives the facility of dissolving the marriage if one among the spouses or by his/her bad habit renders the married life intolerable. In the absence of serious reason, no action justifies divorce either in the eyes of religion or law. Thus the divorce is “the most disliked of lawful things in the sight of God.” This is the real spirit of Muslim law relating to divorce. However Muslim law, as applied in India, does not follow this real spirit which the Holy Quran and the Prophet declared.
4. In Yousuf Rowthan v. Sowramma (1970 KLT 477) Justice Krishna Iyer had quoted from Dr. Galwash as follows:
“Marriage being regarded as a civil contract and as such not indissoluble, the Islamic law naturally recognizes the right in both the parties, to dissolve the contract under certain given circumstances. Divorce, then, is a natural corollary to the conception of marriage as a contract.
“It is clear, then, that Islam discourages divorce in principle, and permits it only when it has become altogether impossible for the parties, to live together in peace and harmony. It avoids, therefore, greater evil by choosing the lesser one, and opens a way for the parties to seek agreeable companions and, thus, to accommodate themselves more comfortably in their new homes.”
A marriage without love is certainly a hardship, more cruel than any divorce what so ever.
“Before the advent of Islam, neither the Jews nor the Arabs recognized the right of divorce for women; and it was the Holy Quran that, for the first time in the history of Arabia, gave this great privilege to women.” (Dr. Galwash).
According to him:
“Divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting reconciliation have failed, the parties may proceed to dissolution of the marriage by ‘Talaq’ or by ‘Kholaa’. When the proposal of divorce proceeds from the husband, it is called ‘Talaq’ and when it takes effect at the instance of the wife it is called ‘Kholaa’.”
This right of Muslim wife is recognised by the enactment of the Dissolution of Muslim Marriage Act, 1939. As its long title indicates its aim is to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under the Muslim Law. Therefore, the Muslim women married under the Muslim Law are given a right to get a decree for dissolution of marriage in terms of Section 2 of the Act on different grounds as specified as (i) to (ix) under the said section. Section 2(ii) relates to the husband’s negligence or failure “to provide for her maintenance for a period of two years.”
5. Can this ground be involved by a Muslim wife who stays away from her husband without any excuse and thus not entitled to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973. We are claimed upon, mainly, to answer this question, pressed before us in this appeal.
6. This appeal is by the defendant in O.S. 42/1996 on the file of the Family Court, Trissur. He challenge the decree of divorce obtained by the respondent/plaintiff, hereinafter referred to as ‘wife’ under Section 2(ii), 2(iv) and 2(viii) of the Act.
7. The appellant, here-in-below referred to as ‘husband’ married the respondent on 7.2.1974. They have two children, a daughter of 21 years old and son of 39 years old at the time of the suit. When the wife was carrying the second child, the husband had taken her to her house. He did not even come to her house inspite of intimation about the birth of the second child. He did not give maintenance to her or her children. In effect he had deserted her and the children. She filed a petition for maintenance in the year 1978 before the Judicial Magistrate of the First Class at Vadakkancherry. Maintenance for the children alone was granted. A further case was filed as M.C. 409/92 in Family Court, Ernakulam for enhancement of the maintenance awarded to the children and for the maintenance of the respondent. According to her the appellant had taken up a contention that he had divorced the plaintiff, in the earlier proceedings; but, later on a contrary stand had been taken. According to her the husband had married two other women. He was not treating her equally with other wives. Therefore she had been shown cruelty. The marital life with him was miserable. It was in the above circumstances she had sought for declaration that the marital relationship between them was not subsisting. She also sought for an alternate prayer for a decree of divorce dissolving the marriage between them on the ground of negligence or failure on the part of the husband to provide for her maintenance for more than two years, that he had failed to perform, without reasonable cause, his marital obligation for more than three years and that he had treated her with cruelty in so far as he did have more wives than one and did not treat her equitably in accordance with the injunctions of the Quran. The husband disputed the case set up by her. He contended that he had never deserted her. She went to her house on her own accord. Her petition for grant of maintenance had been dismissed by the competent court. Therefore he did not have a legal obligation to maintain her. Consequently, it could not be taken that he had neglected or failed to provide for her maintenance. A failure will arise only when there was obligation to maintain. She was at liberty to come to his house. He had not divorced her. An equitable treatment with another wife can be disputed only if she had come and lived with him. So there was no reason at all to grant the declaration sought for by her or to grant a decree of divorce on any of the three grounds urged by her.
8. Ext. A1 certificate from the Mahal Juma ath was produced by her to prove the factum of divorce. But that was a certificate dated 1.12.1995 certifying the divorce said to be effected on 8.4.1984 and certified on the basis of some other records. Ext. P1 did not contain from which record the material for certification were obtained. The wife did not attempt to prove Ext. A1 by examining the person who had issued the certificate or bringing the document based on which Ext. A1 certificate was issued. Thus the trial court found that the wife was not entitled for declaration that there was a divorce by the husband.
9. On the other hand the trial court found that the dismissal of application for maintenance filed by the wife did not ipso facto prove that the husband did not have an obligation to provide for maintenance of his wife. Every Muslim husband was liable to maintain his wife. The right to get maintenance in terms of Section 125 of Code of Criminal Procedure, 1973 dependent upon other circumstances and even if the wife failed to obtain an order of maintenance in terms of said provision, the obligation of a Muslim husband to provide for maintenance of his
wife does not get extinct. The trial court relied on two decisions of this Court in Yousuf Rowthan v. Sowramma, 1970 KLT 477, and Moosa v. Fathima, 1983 KLT 787 to arrive at the finding that the husband had neglected and failed to provide for the maintenance of his wife.
10. The court below also found that the husband had never gone to the wife’s house and she had to leave the house as she was not treated decently and that he was showing discrimination towards her as compared to his other wives. Therefore the trial court found that he had failed to perform his marital obligation towards her to grant her a decree on the ground of Section 2(iv) of the said Act. The trial court also found that because of the treatment meted out to her by the husband, there was perfect discrimination to attract Section 2(viii)(f) that he did not treat her equitably with other wives in accordance with the injunction of the Quaran. It was in the above circumstances the decree of divorce had been granted by the court below.
11. This decree is assailed by the husband contending that the court below erred in finding sustenance of the ground urged by the wife in terms of Section 2(ii) that he had failed to provide for maintenance for a period of two years. He was always ready to maintain her in his own house. In such circumstances she herself had, by her conduct, disabled her to get maintenance. That was why her applications seeking maintenance had been dismissed by the competent courts. When she did not have legal entitlement to get maintenance from the husband, there arises no question of any failure on the part of the husband to provide for her maintenance especially when she was living away from him. In such circumstances the finding in that regard has to be reversed. The decisions of this Court relied on by the trial court requires reconsideration as various other High Courts, in similar circumstances, have taken a different view in the decisions in Ahmed Abdul Quadeer v. Raffat Banu (AIR 1978 AP 417) and Asa Ram v. Ravi Prakash (AIR 1966 AH. 518).
12. It is further contended that he did have obligation to give his company to his wife only so long as she is prepared to live with him in his house. She had left his house for no reason. Therefore it cannot be taken that he had failed to perform his marital obligation towards her, because of her keeping away from him. There was reasonable cause, so far as he was concerned, that he did not give company to her in her own house. Therefore no decree of divorce ought to have been granted on the ground available under Section 2(iv) of the Act.
13. According to him there was no occasion for any ill-treatment or inequitable treatment towards her. He had not violated the injunctions of Quran in that regard. So no ground in terms of Section 2(viii) (f) was also available to grant a decree in her favour, the appellant contends.
14. It is true that every other High Courts except Sind High Court and High Court of Lahore and later this Court, had held that the word negligent appearing in Section 2(ii) of the Act implies willful failure and therefore it shall imply an omission of a duty cast on the husband to provide maintenance. In Mt. Shamim Fatima v. Ahmad Ullah Khan, (AIR1947 All. 3) it has been held that
“the Act does not mean that the husband is bound to follow his wife wherever she may go and force money or food or clothes upon her ….. If she refused to avail herself of the shelter which was offered to her, she cannot complain and is certainly not entitled to a decree.”
Similar was the view taken by the Rajasthan High Court in Amir Mohammed v. Msf. Bushra, AIR 1956 Raj. 103. That Court was of the 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-performance 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.”
Similar are the views taken in Jamila Khatun v. Kasim Ali Abbas Ali, AIR 1951 Nag. 375 and Mst. Mahiyakhatun Bibi v. Shaik Anwar Ali, AIR 1971 Cal. 218.
15. But in the decision in Smt. Noor Bivi v. Pir Bux (AIR 1950 Sind 8), Tyabji, C.J., after elaborately examining the different aspects of Muslim jurisprudence touching this issue and the content of Section 2(ii) of the Act held that:
“Having very carefully considered the reasoning in all these, I can see no reason for taking a different view of the question before us from that which I expressed in Hajra ‘s case (Suit No. 288 of 1942). The plain ordinarily grammatical meaning of the words: “Has failed to provide maintenance in Clause (ii) appears to me to be very clear. It is true that these words occur in an enactment which deals with the dissolution of Muslim marriage, but the meaning of these words cannot therefore 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 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….. 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 the cases in which it has been held that there could be no failure to maintain, unless the wife was entitled to enforce a claim for maintenance, the plain ordinary meaning of the words, it seems to me, was intentionally departed from, on the express ground that the ordinary meaning of the words was not the one which could really have been intended, that the really intended meaning had been sought to be expressed, rather unhappily, by the use of words which in fact had a different meaning; and the supposed intended meaning which necessarily involved importing into the enacted words something which was not there, was then preferred to the ordinary meaning; on the supposition that unless that was done an abrogation of the general Muhammadan Law and a startling state of affairs would result…..”
The learned Chief Justice expatiated on the Muslim Law and observed,
“The principles upon which maintenance is enforced during the subsistence of a marriage, and those upon which dissolution is allowed, are entirely different. Dissolution of a marriage is allowed when acessation of the state of marriage has in really taken place, or the continuance of the marriage has become injurious to the wife. The continuance of a state of affairs in which a marriage had ceased to be reality, when the husband and the wife no longer lived “within the limits of Allah” is abhorred in Islam, and the prophet enjoined that such a state of affairs should be ended. The main object of enacting the Dissolution of Muslim Marriages Act was to bring the law as administered in this subcontinent into conformity with the authoritative texts. A very strong select committee which included Sri. Nripendranath Sircar, Sri. Mohammed Zafrulla Khan and several notable Muslim Scholars examined the Muslim Law and drafted the bill with the greatest care….. With regard to the provisions of the enactment, Sir. Muhammed Zafrulla Khan made a statement which is of particular interest with regard to the question now before us.
Sir, the outstanding merit of this Bill is that it puts down, in the space of one printed page, the various grounds on which divorce may be obtained by a woman married under the Muslim Law. This is a matter the lack of which has, in the past, caused a great deal of distress and misery and suffering in India….. As I have said, this Bill defines the grounds on which Khula may be obtained by a married woman under the Muslim law in very definite, clear and precise terms and I cannot imagine that any Judge, whether he is a Muslim or a non-Muslim, could have much room left for doubt with regard to them. There may be a dispute with regard to the facts in any particular case – that is inherent in every litigation – but I do not think there can now be much doubt with regard the grounds upon which divorce is permissible under the Muslim law. That is the Chief merit of this Bill.”
Tyabji, C.J. relied on the observations of Abdul Rashid, J. In Manak Khan v. Mt. Mulkhan Bano (AIR 1941 Lahore 167) which reads as follows:
“Where the words of the statute, are unambiguous, effect must be given to them whatever the consequences. 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.”
Tyabji, C.J. also relied on Mt. Khatijan v. Abdulla (AIR 1943 Sind. 65) where it was held:
“In the Muslim law of dissolutions, the failure to maintain when it has continued for a prolonged period in such circumstances, is regarded as an instance where a cessation or suspension of the marriage had occurred. It will be seen therefore that the wife’s disobedience or refusal to live with her husband does not affect the principle on which the dissolution is allowed.”
His Lordship also relied on his own unreported decision in Hajara’s case (Suit No. 288 of 1942) and held that:
“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 lime barred. But apart from this, it seeks to me to be clear that the choice of the words “had failed to provide for her maintenance” was necessitated by the very nature and effect of Clause (iii). To make my point clear, let it be assumed that it was clearly intended to draft the clause so as to entitle the wife to a dissolution on a mere omission by the husband – no matter under what circumstances – maintain the wife for two years and further that a suggestion was made that the word “omitted” be substituted for the words “neglected or has failed”. I think the draftsman would have preferred the words as they are and said.
“As the clause itself enacts that a right to as dissolution will be the consequence of an omission to maintain, every omission to maintain must be spoken of as a failure to maintain in this enactment. The fact that there are no further qualifying words is sufficient to show that nothing more than an omission to maintain could possibly be intended.”
In the case in which it has been held that there could be no failure to maintain, unless the wife was entitled to enforce a claim for maintenance, the plain ordinary meaning of the words, it seems to me, was intentionally departed from, on the express ground that the ordinary meaning of the words was not the one which could really have been intended, that the really intended meaning had been sought to be expressed, rather unhappily, by the use of words which could really have been intended meaning which necessarily involved importing into the enacted words something which was not there, law then preferred to the ordinary meaning; on the supposition that unless that was done an abrogation of the general Mohaminadan Law and a startling state of affairs would result. With all respect to the learned Judges who adopted this method of constructional seems to me that this is not permissible. It is a settled rule of construction that when the enacted words are clear, they must be given effect to, and the Courts must not busy themselves with supposed intentions or consequences.”
Finally the Lordship answered the point as follows:
“a husband cannot claim to have provided maintenance for his wife, unless the provision made by him was in fact sufficient to provide adequately for her necessities. The question in such cases must always be: was the husband realty maintaining his wife? If the wife was being maintained by herself, or by some person other than her husband, or was not being sufficiently provided for at all, there would be a failure by her husband to maintain her.”
This pronouncement was made thus taking into account the Muslim Law, as well as the meaning of the words employed in Section 2(ii) of the Act.
16. Inspite of the different view taken by different High Courts in several decisions as mentioned above, Justice Krishna Iyer in Yousuf Rowthan v. Sowramma (1970 KLT 477) accepted the view taken by Tyabji, C.J. in Mt. Khatijan v. Abdulla (AIR 1943 Sind 65), as the reasoning therein:
“accords with the holy Islamic texts and the ethos of the Muslim community which together serve as a backdrop for the proper understanding of the provisions of Act 8 of 1939”.
and held that:
“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 a moralist.”
17. This view is sought to be reconsidered by the counsel for the appellant. In that regard counsel submits that the view taken in Yousuf Rowthan’s case has been considered and dissented to by the Calcutta High Court in Mst. Mabiya Khatun Bibi v. Shaikh Anwar Ali (AIR 1971 Culcutta 218) and by Andhra Pradesh High Court in Ahmed Abdul Quazdeer v. Raffat Banu (AIR 1978 Andhra Pradesh 417) where it has been observed as follows:
“Impressive and highly scholastic as it is, I am unable to persuade myself to agree with the view taken by Krishna Iyer, J. In Yousuf v. Sowramma, AIR 1971 Ker. 261. The provisions of the 1939 Act must be construed in a reasonable manner, which is 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, thee 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 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. 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 faulty 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 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 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.”
18. An attempt was earlier made before this Court after Yousuf Rawthan for re-consideration of the view taken therein, before Balakrishna Menon, J. as he then was. In the meantime this Court had again accepted the position in Yousuf Rawthan in Aboobacker Haji v. Mamukoya (1971 KLT 553). That judgment was also rendered by Krishna Iyer, J. as he then was. In Moosa v. Fathima (1983 KLT 787) this Court did not accept the request for reconsideration of the view taken in Yousuf Rawthan and Aboobacker Haji. Considering the entire contention including the decision rendered by the Andhra Pradesh High Court, AIR 1978 AP 417 and Culcutta High Court (Mst. Mabiya Khatun Bivi v. Shaikh Anwar Ali, AIR 1971 Culcutta 218, Justice Balakrishna Menon, J., as he then was, held as follows :
“Clause (ii) of Section 2 should be read in contra-distinction 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 a 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 Clause (i) to (xi) of Section 2. If the husband wants the marriage relationship to continue, he should see that the wife does not get aground 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 aright 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 consonance 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 those 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 Yousuf Rawthen v. Sowramma (l970 KLT 477). 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 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.”
19. Thus, the consistent view taken by this Court is that “the construction of Clause (ii) of Section 2 is in consonance with the Islamic law on the subject….. There is therefore no justification in introducing the words “without reasonable cause” into Clause (ii). The Legislature in its wisdom by providing those words in Clause (iv) has not thought it necessary to provide this restricting in Clause (ii). “Accordingly this Court held that a wife under such circumstances, even if she had contributed for not to maintain her or even if she was not entitled for maintenance, could have applied for dissolution of marriage under Section 2(ii) on the ground that the husband had neglected or failed to provide for her maintenance for a period of two years. When the consistent view followed by this Court in these three decisions, accepting the view taken by Tayabji, C.J., in Noorbibi’s case, is so clear, there is no reason at all for reconsideration, taking into account the phraseology used in Section 2(ii) as compared to Section 2(iv). The excuse if any put forth by the husband in maintaining the wife is not at all a relevant consideration while considering the ground for dissolution of marriage by the wife under Section 2(ii) of the Act. So we are in respectful agreement with the view taken by this Court in the earlier decisions in Yousuf Rawthan, Aboobacker Haji and Moosa’s cases.
20. The trial court had allowed divorce under Section 2(iv) of the Act as well. The said provision provides that a wife is entitled to dissolution of the marriage if “the husband had failed to perform without reasonable cause his marital obligation for a period of three years”. It has been found by the Court below that after the wife got separated from the husband, the latter had never made any attempt to get conjugal company and consortium of the wife and that the husband did not choose to take any action for restitution of conjugal right and that no reason was given why he did not resort to such remedy. Accordingly Court below held that he had failed to perform his marital obligation without any reasonable cause, entitled the wife to get a decree of divorce on that ground also. Thus this finding is based on the evidence on record and circumstances disclosed. When that conclusion is a probable one based on the facts and evidence in the case, there is no reason at all to reverse it in this appeal.
21. The dissolution of marriage was sought for in terms of Section 2(viii) as well, that the husband had treated the wife with cruelty in so far as he did not treat her equitably along with his other wives in accordance with the injunctions of the Quran.
22. It was an admitted case before Court below that the husband did have other wives. He had been living with at least one of his other wives; but not with the plaintiff. He had not been giving conjugal company and consortium to her as he had been giving it to his other wives. He had provided maintenance to the wife, who had been living with him. He did not provide maintenance to the plaintiff admittedly. These are the aspects considered by the court below to find that he had not been treating her equitably with other wives and thus he had been guilty of cruelty in that regard to make available the ground under Section 2(vii)(f) to the wife to get dissolution of marriage. This is also a finding based on the evidence available on record and circumstances, revealed. That is also a possible conclusion. There is no reason at all to interfere with that finding as well.
In the result appeal fails and is dismissed, any how with, no order as to costs.