KARNATAKA HIGH COURT
DIVISION BENCH
( Before : D.V. Shylendra Kumar, J; A.M. Farooq, J )
MEHAFOZ ALAM DASTAGIRSAB KILLEDAR — Appellant
Vs.
SHAGUFTA — Respondent
M.F.A. No. 4848 of 2001 (FC) Along with Cross-Objections 21/02
Decided on : 09-04-2003
Dissolution of Muslim Marriage Act, 1939 – Section 2 (ii)
Family Courts Act, 1984 – Section 19
Cases Referred
Mt. Badrulnisa Bibi Vs. Syed Mohammad Yusuf, AIR 1944 All 23 : (1943) 13 AWR 264
Bengal Coal Co. Ltd. Vs. The Union of India (UOI), AIR 1971 Cal 219 : (1971) 2 ILR (Cal) 42
Amir Mohd. Vs. Mst. Bushra, AIR 1956 Raj 102
A. Yousuf Rawther Vs. Sowramma, AIR 1971 Ker 261
Ittoochalil Meethal Moossa Vs. Pachiparambath Meethal Fathimas, AIR 1983 Ker 283 : (1984) 1 ILR (Ker) 92
Najiman Nissa Begum Vs. Serajuddin Ahmed Khan, AIR 1946 Patna 467
JUDGMENT
Shylendra Kumar, J.—This is an appeal u/s 19 of the Family Courts Act by a Mohammedan husband complaining against the correctness and validity of the judgment and decree dated 16.8.2001 passed by the Family Court at Belgaum in O.S. No. 24/00 whereby the Family Court has decreed the suit of the respondent/wife and granted a decree of divorce in favour of the wife by dissolving the marriage between the parties and decreed the suit which had been filed invoking the provisions of Sub-section (ii) of Section 2 of Dissolution of Muslim Marriage Act, 1939.
2. The husband being aggrieved by this judgment and decree of the Family Court dissolving his marriage with the respondent/wife is in appeal before us.
3. Sri V.V. Joshi, learned Counsel appearing for the appellant submits that an interesting question of law governing the interpretation of Sub-section (ii) of Section 2 of the Dissolution of Muslim Marriage Act, 1939 (hereinafter referred to as the ‘Act’) arises in this appeal and the out come of the appeal essentially depends on the interpretation that has to be placed on Section 2(ii) of the Act and submits that the appeal has to be allowed and the judgment and decree set aside if the particular interpretation as sought for by the learned Counsel is accepted by the Court.
4. The learned Counsel has also relied upon the earlier decision of other High Courts interpreting the very provision which supports his submissions.
5. The brief facts leading to the suit and this appeal are that the parties whom we address with reference to the ranks in the original suit were married according to the customs prevailing in the Mohammedan community in a marriage that was performed on 21.11.1996 at Belgaum. The wife who was the plaintiff in the suit joined her husband/defendant at his parental house at Dharbargalli, Belgaum. It is pleaded that the couple lived as husband and wife only for a few days and immediately thereafter, the husband went away to Saudi Arabia in December 1996 itself. That he returned to Belgaum after a long stay in Saudi Arabia only in the month of November 1997. It is pleaded that even after such return, the defendant started quarrelling with the plaintiff and subjected her to harassment. There were demands for bringing dowry and that the husband was physically assaulting the wife. The sister of the husband whose marriage had broken down and who had come back to the family house only complicated the matters by poisoning the mind of her husband. That the husband took his wife and left her in her parental house on 7.12.1997 and thereafter, has not cared either to take her back or provide her any maintenance. In the circumstances, it was pleaded that the plaintiff/wife was entitled to seek dissolution of the marriage u/s 2(ii) of the Act. Though many other facts are pleaded these basic facts are sufficient for the purpose of the present appeal.
6. The defendant/husband entered appearance and contested the suit, written statement was filed denying the plaint averments. Allegations of cruelty was specifically denied. The defendant pleaded that the plaintiff/wife suffered from a sense of superiority complex; that she was obsessed that she is a very pretty lady and better educated than the husband and that the husband was not a match and as such, was herself not willing to live with the husband and went away to her parents house; that the efforts on the part of the husband to bring her back did not yield any result as the wife did not respond to the same; that the wife never wanted to live with her husband and there was absolutely no justification for her to leave the matrimonial house or live separately justifying the provisions of any maintenance by the husband; that the suit of the plaintiff for dissolution of marriage u/s 2(ii) of the Act is not tenable; that there is no cause of action for the suit and prayed for dismissal of the suit.
7. In the light of such rival pleadings the Trial Court had formulated the following two issues for its consideration:
i) Whether the plaintiff is entitled for decree of divorce by dissolving the marriage on the ground of cruelty and desertion?
ii) Whether the plaintiff is entitled to a decree for dissolution of her marriage under the clause (ii) of Section 2 of the Dissolution of Muslim Marriage Act, 1939?
8. In so far as the first issue regarding cruelty is concerned, though the plaintiff had averred in her plaint that the husband had acted in such a manner that it amounted to practicing cruelty as against the wife, the ground of cruelty which is available as per Section 2(viii) of the Act was not as such set up by pleading the specific instances illustrated u/s 2(viii) of the Act which constituted acts of cruelty. Be that as it may, the defendant had made such allegations and the Trial Court has answered this issue against the plaintiff; that the wife did not prove any acts of cruelty practiced by the husband as against her. But, never the less, the second issue namely, entitlement for the dissolution of the marriage on the ground of neglect on the part of the husband to provide maintenance for a period of 2 years was held in favour of the wife and as such, the marriage came to be dissolved and a decree of divorce granted in favour of the wife. It is aggrieved by this decree, the defendant/husband is in appeal.
9. Even here, in so far as the facts are concerned, there is not much dispute. The fact that the wife has been living separately ever since 7.12.1997 and that a period of 2 years had elapsed at the time when the petition for divorce was presented is not in dispute. It is not in dispute that the husband had not paid any maintenance to the wife during this period.
10. What was pleaded on behalf of the husband was that the wife was not justified in the first instance for claiming maintenance in as much as it was by her own voluntary act and conduct that she had gone away from the marital house; that she herself was not willing to live with the husband though the husband very much wanted to live with her in the family house and as such, there is no obligation on the part of the husband to provide maintenance in favour of the wife and it is only when the husband has failed to perform such an obligation by not paying maintenance to a wife who was entitled for it and who was justified in claiming it, then alone the provision of Section 2(ii) of the act can be pressed into service and not otherwise.
11. Sri V.V. Joshi, learned Counsel for the appellant has also submitted that there was no demand either on the part of the wife for claiming maintenance at any point of time; that she was, in fact, not even interested in claiming maintenance as she was not in real need of the same, that she is herself well qualified and has been earning her livelihood by being gainfully employed and there was never any occasion for the husband to pay her any maintenance. Learned Counsel submits that under such circumstances, the Trial Court could not have granted the decree of divorce in favour of the wife under the provisions of Section 2(ii) of the Act which comes into play only when a wife who is entitled to claim maintenance and who is in need of the same has not been provided with such maintenance by the husband and not otherwise.
12. Learned Counsel submits that the grant of relief u/s 2(ii) of the Act in favour of a wife for dissolution of the marriage essentially depends on the interpretation to be placed on Section 2(ii) of the Act. Placing reliance on the interpretation be placed on this provision by the High Courts of Allahabad and Calcutta in decisions reported in rabia khatoon v. Mukhtar ahmad AIR 1966 All 548 Bengal Coal Co. Ltd. Vs. The Union of India (UOI), the learned Counsel submits that this aspect of the matter has been discussed in great detail and the two High Courts after noticing the back ground of the legislation, the need for providing the maintenance to a Mohammedan wife, the circumstances under which a wife becomes entitled to claim maintenance and the corresponding obligation on the part of the husband and by following the customary Mohammedan Law as was in vogue on this aspects interpreted u/s 2(ii) of the Act so that this provisions falls in line with such understanding of customary Mohammedan law and as such have held that a wife claiming dissolution of the marriage and a decree of divorce u/s 2(ii) of the act has to necessarily show that she was in the first instance entitled to claim maintenance; that there was a legal obligation on the part of the husband to provide her maintenance and it is only when the husband had failed to fulfill such obligation that the wife can claim relief under this provision.
13. The traditional view was that a Mohammedan wife who subsequent to the marriage and before payment of the dower in her favour has with her consent consummated the marriage cannot thereafter, refuse to cohabit with the husband on the premise that the dower amount has not been paid to her. Such a wife may have other remedies for enforcing her right to dower. The traditional view was, that right cannot be used to deprive the husband of his marital rights and the wife is not entitled to refuse cohabitation. If a wife refuses of perform her part of the marital obligations and in such circumstances, lives apart, there is no obligation on the part of the husband to provide maintenance to such a wife. It is this under standing of the law that was followed and engrafted to the interpretation of Section 2(ii) of the act by the Allahabad High Court followed by the Calcutta High Court.
14. Learned Judges of these two High Courts noticed that such was the view taken by the other High Courts. Peshavar High Court in FAZAL MAHAMUD V. MT. UMATUR RAHIM AIR 1949 Pesh 7 Allahabad High Court in MOHAMMAD YASIN V. RAHMAT ILAHI AIR 1947 ALL 201 Lahore High Court in a case reported in ZAFAR HUSSAIN V. AKBARI BEGUM, 5. AIR 1944 LAH 336.
15. Placing reliance on these judgment Sri Joshi, learned Counsel for the appellant submits that in the present case, the learned Trial Judge though had noticed that there was no obligation on the part of the husband to provide maintenance to the wife nor was she entitled to claim maintenance as she had left her husband on her own, never the less, on the plain understanding of Section 2(ii) of the Act, decreed the suit following the view taken by the Kerala High Court and such decision of the learned trial Judge by following the view expressed by the Kerala High Court on the interpretation to be placed u/s 2(ii) of the Act is against the preponderance of judicial opinion as indicated above and as such, the judgment and decree of the Trial Court is required to be set aside allowing the appeal and dismissing the suit. The learned Counsel urges that the view taken by the Allahabad High Court and Calcutta High Court should commend for this Court to be followed and not the view taken by the Kerala High Court.
16. The Kerala High Court had taken the view that provisions of Section 2(ii) of the Act should be so interpreted as to provide relief to a petitioning wife under this provision if she is able to show a mere instance of non-payment of maintenance for a period of 2 years by the husband irrespective of the circumstances under which the wife was living separately. This was the view taken by the Kerala High Court in A. Yousuf Rawther Vs. Sowramma, which was later followed by another learned Single Judge of the same High Court in the case reported in Ittoochalil Meethal Moossa Vs. Pachiparambath Meethal Fathimas, .
17. Sri Sachin, learned Counsel appearing for the respondent/ wife submits that the view taken by the Kerala High Court in the case reported in A. Yousuf Rawther Vs. Sowramma, by Justice Krishna Iyer. J., as he then was, is the correct view for the purpose of interpreting Section 2(ii) of the Act. That the learned Judge had taken this view after looking into the history of the Legislation, the back ground in which the law was enacted, the object with which such law was made, particularly, having regard to the limited scope under the Mohammedan Law to wife to seek dissolution of a marriage and to liberate herself from the shackles of an oppressive unbearable marriage.
18. Justice Krishna Iyer in taking view, for interpreting Section 2(ii) of the Act had also referred to the earlier view that was taken by Chief Justice Tyabji of the Sindh High Court in a case reported in Mt. noor bibi v. pir bux AIR 1950 Sindh 8. The precise question had arisen before the Sindh High Court and the learned Chief Justice Tyabji, had taken the view that on a proper interpretation of the text and correct understanding of Section 2(ii) of the Act would be to hold that failure on the part of the husband to provide maintenance for a period of 2 years irrespective of the circumstances under which the wife was living separately in itself justifies granting relief to the wife under this provision and irrespective of the question as to whether she was entitled for maintenance or not, relief should be given to the wife accepting that the condition mentioned in Section 2(ii) of the Act has been fulfilled, the moment it was shown that maintenance in fact had not been paid for a period of 2 years to a Mohammedan wife living separately from her husband during this period. The learned Chief Justice reiterating his earlier view on this question had this is to say;
“Would the general law applicable to Muslims be abrogated by construing the language of Section 2(ii) in this manner? If this question is examined, the answer must I think be, as was pointed out in Ahmed Jan v. Mr. Sultan Bibi AIR 1943 Pesh 73: (202 I.C.248) that Act VIII (8) of 1939 in fact crystallises a portion of the Muslim law which before it came into force was not codified and consisted of principles only. The argument of Mr. Qureshi and this appears to be the reasoning underlying the decision of Lobo J., is that in the case in question the wife’s claim to a dissolution must be regarded as based on a breach of the marriage contract, and that the claim cannot be allowed when the alleged breach was of a term which had become unenforceable, when therefore there was no real breach. A brief examination of the Muslim attitude towards marriage and divorce and the principles upon which a dissolution is allowed is therefore necessary.
A Muslim marriage is a covenant by which the parties enter the state of marriage. The parties are permitted to stipulate the conditions upon which they will do so, provided the conditions are not illegal according to Muslim law. The subsistence of the marriage confers certain essential rights and imposes certain duties upon the husband and the wife. These rights and duties are stated in the Quran, which speaks of them as “the limits of Allah” (Cf.e.g., verse II, 229), within which the husband and the wife have to five. The conditions of the covenants of marriage have also to be fulfilled. Not only does the Quran repeatedly exhort every Muslim to fulfil the covenants which he enters into, but the prophet has particularly emphasised: “Of all the conditions which you have to fulfil, those most entitled to fulfilment are the conditions upon which you enter the union of marriage” (Bukhari 67:53). The Muslim marriage differs from the Hindu and from most Christian marriages in that it is not a sacrament. This involves an essentially different attitude towards dissolutions. There is no merit in preserving intact the connection of marriage when the parties are not able to fail ‘to live within the limits of Allah’, that is to fulfil their mutual marital obligations, and there is no desecration involved in dissolving a marriage which has failed. The entire emphasis is on making the marital union a reality, and when this is not possible, and the marriage becomes injurious to the parties, the Quran enjoins a dissolution. The husband is given an almost unfettered power of divorce, the only restraints upon him being those imposed by the law relating to dower and by his own conscience. He has to remember the Prophet’s words: ‘Of all things permitted by the law, the word is divorce’. The Quran enjoins a husband either to render to his wife all her rights s a wife and to treat her with kindness in the approved manner, or to set her free by divorcing her, and enjoins him not to retain a wife to her injury (Cf. verses II, 229 and 231). Any suspension of the marriage is strongly condemned (Cf.e.g. Quran IV, 129).The attitude of the Prophet is illustrated by the well-know instance of Jameela, the wife of Sabit Bin Kais, who hated her husband intensely although her 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 morals or as regards his religion. She pleaded, however, that she could not be whole heartedly loyal to her husband, as a Muslim wife ought to be, because she hated him, and she did not desire to live disloyally (‘in kufr’). 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. From the earliest times Muslim wives have been held to be entitled to a dissolution when it was clearly shown that the parties could not live ‘within the limits of Allah’, when (1) instead of the marriage being a reality, a suspension of the marriage had in fact occurred or (2) when the continuance of the marriage involved injury to the wife. The grounds upon which a dissolution can be claimed are based mainly on these two principles. The grounds stated in Section 2 of Act VIII (8) of 1939 Sub-clauses (i) to (iv) are based on the principle that a suspension of the marriage had occurred which justified a dissolution, and in Sub-clauses (v) to (viii) on the principle that the continuance of the marriage in those cases would be injurious to the wife. It is important to remember that the breach of a valid condition in the marriage covenant does not as such give the wife a right to claim a dissolution. The law regarding the enforcement of the terms of a marriage contract is entirely distinct and is governed by entirely different principles from the law regarding the dissolution of a marriage. When a husband and a wife have been living apart, and the wife is not being maintained by the husband, a dissolution is not permitted as a punishment for the husband who had failed to fulfill one of the obligations of marriage, or allowed as a means of enforcing the wife’s rights to maintenance. In the Muslim law of dissolutions, the failure to maintain when it had 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.”
19. This was the basis on which the Sindh High Court placed the interpretation on Section 2(ii) for holding that it should be taken as its face value and on the plaint language and no other conditions or situations can be read into this provision, to either dilute or discard the effect of Section 2(ii) by holding that a non-payment of maintenance under justifiable circumstances can be a valid defence in a petition for a decree of divorce by the wife u/s 2(ii) of the Act.
20. Justice Krishna Iyer has further added as under in support of his view:
6. The interpretation of a legislation, obviously intended to protect a weaker section of the community, like women, must be informed by the social perspective and purpose and, within its grammatical flexibility, must further the beneficent object. And so we must appreciate the Islamic ethos and the general sociological background which inspired the enactment of the law before locating the precise connotation of the words used in the statute.
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10. The Indian Judges have been sharply divided on the woman’s right to divorce. Is she eligible only if she has not violated her conjugal duties? Or can she ask for it on mere failure of the husband to provide maintenance for her for two years, the wife’s delinquency being irrelevant? If the latter view be the law, judges fear that women, with vicious appetite, may with impunity desert their men and yet demand divorce-forgetting, firstly that even under the present law, as administered in India, the Muslim husband has the right to walk out of the wedlock at his whim and secondly, that such an irreparably married life was not worth keeping alive. The rulings reported in Ahmad Jan v. Mt. Sultan Bibi (AIR 1943 Pesh 73), Mt. Zainaba v. Abdul Rahman (AIR 1945 Pesh 51), Manak Khan v. Mt. Mulkhan Bano (AIR 1941 Lah167), Mt. Akbari Begum v. Zafar Hussain (AIR 1942 Lah 92). Mt. Noor Bibi v. Pir Bux (AIR 1950 Sind 8) and Najiman Nissa Begum Vs. Serajuddin Ahmed Khan, speak for the stand of the ‘moralists’ while the realists find expression of their view point in the rulings reported in Zafar Hussain v. Mt. Akbari Begum (AIR 1944 Lah 336), Mt. Umat-ul-Hafiz v. Talib Hussain (AIR 1945 Lah 56) : (AIR 1950 Lah 45), Mt. Badrulnisa Bibi Vs. Syed Mohammad Yusuf, , Mt. Shamin Fatma v. Ahmad Ullah Khan (AIR 1947 All 3) : (AIR 1966 All 548), Khatijan v. Abdulla (AIR 1943 Sind 65), Fazal Mahmud v. Mt. Umatur Rahim (AIR 1949 Pesh 7) , Jamila Khatun v. Khasim Ali Abbas All, (AIR 1951 Nag 375) and Amir Mohd. Vs. Mst. Bushra, . The learned Munsiff chose to follow the leading case in AIR 1951 Nag 375, while in appeal, the Sub-ordinate Judge was impressed by the reasoning in AIR 1950 Sind 8. Neither the Kerala High Court nor the Supreme Court has spoken on the issue and, speaking for myself, the Islamic law’s serious realism on divorce, when regarded as the correct perspective, excludes blameworthy conduct as a factor and reads the failure to provide maintenance for two years as an index of irreconcilable breach, so that the mere fact of non-maintenance for the statutory period entitles the wife to sue for dissolution.
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16. I am impressed with the reasoning of Tyabji, CJ which, in my humble view, 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.
17. I may also point out with satisfaction that this secular and pragmatic approach of the Muslim law of divorce happily harmonises with contemporary concepts in advanced countries.
For instance, in the Family Code of the German Democratic Republic, recently enacted, the provisions on the dissolution of marriage have been explained in an official legal publication thus:
“Their most characteristic feature is the doing away with the guilt-principle of the erstwhile German civil family law. According to that principle a partner of a petition for divorce had to prove that the other partner had in a culpable manner violated marital duties. According to the principle which now prevails in the German Democratic Republic the only valid yard-stick for the dissolution of a marriage are its objective conditions. If a marriage-as formulated in the draft – has lost its significance for the married partners, for the children and thereby for society, if it has become merely an empty shell, it must be dissolved, independently whether one of the married partners or which of the two bears the blame for its disintegration. In view of the most personal and variegated relations within married life and the fact that conflicts which lead to divorce, have frequently been simmering for years, and might have their deepest roots in an ill-considered marriage, it may be, as a result, hardly possible to declare either of the spouses guilty for the disintegration of the marital partnership.”
(Law and legislation in the G.D.R. 2/65 P. 32)
One of the serious apprehensions judges have voiced, if the view accepted in AIR 1950 Sind 8 were to be adopted, is that the women may be tempted to claim divorce by their own delinquency and family ties may become tenuous and snap. Such a fear is misplaced has been neatly expressed by Bertrand Russel in his ‘Marriage and Morals’.
“One of the most curious things about divorce is the difference which has often existed between law and custom. The easiest divorce laws by no means always produce the greatest number of divorces….. I think this distinction between law and custom is important, for while I favour a some what lenient law on the subject, there are to my mind, so long as the biparental family persists as the norm, strong reasons why custom should be against divorce, except in somewhat extreme cases, I take this view because I regard marriage not primarily as sexual partnership, but above all as an undertaking to co-operate in the procreation and rearing of children.”
The law of the Marumakkathayees provides a large license for divorce but actual experience allays the alarm. The law has to provide for possibilities; social opinion regulates the probabilities. For all these reasons, I hold that a muslim woman, u/s 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.
18. The view I have accepted has one other great advantage in that the Muslim woman (like any other woman) comes back into her own when the Prophet’s word are fulfilled. When roughly equal rights are enjoyed by both spouses, when the talaq technique of instant divorce is matched somewhat by the Khulaa device of delayed dissolution operated under judicial supervision. The social imbalance between the sexes will thus be removed and the inarticulate major premise of equal justice realised.
21. After a careful consideration of the two schools of thought, on the interpretations that were placed on Section 2(ii) of the Act by the High Courts of Peshawar, Patna, Nagpur, Allahabad and Calcutta on the one side and High Courts of Sindh and Kerala on the other side, we are of the considered opinion and with great respect to the view expressed by the formal school of thought that the provisions of Section 2(ii) should be so understood and interpreted as to provide a right in favour of a Mohammedan wife to seek dissolution of the marriage on the mere existence of the fact that she had not been paid maintenance for a period of 2 years by her husband when she has lived separately from her husband.
22. We of the view that this is the proper interpretation to be placed and the relief to be granted u/s 2(ii) of the Act cannot be made conditional or subject to the qualification that the wife was entitled to claim maintenance or permit a husband to plead that he was not under an obligation to provide maintenance having regard to the conduct of the wife. We are also of the view, placing such an interpretation would virtually amount to re-enacting the law or legislation and a interpretation leading to such an eventuality should be obviously avoided. The interpretation which we have accepted and which we follow furthers the object of providing relief to a needy Mohammedan wife who does not have any avenues open to seek relief under the customary law and in fact, has no right at all to seek divorce under the customary law.
23. Under the customary law, a wife gets divorce only if he husband also consents for the same on any of the grounds not withstanding that she may urge or she may have any justifiable cause for seeking dissolution of the marriage. Under such circumstances, statutory law being enacted to provide relief to needy person, the scope and interpretation of such statute should always be to further the object and not to curtail the scope and ambit of the provision.
24. Accordingly, we are of the view that the learned Trial Judge is right in accepting the petition of the wife and in granting the relief by dissolving the marriage between the parties on the grounds of husband not having provided the maintenance to the wife for a period of 2 years prior to the presentation of the petition to the Court. We are rejecting the submissions on behalf of the appellant and accept the submissions on behalf of the respondent/wife.
25. In the result, the appeal is dismissed. The respondent though has filed cross-objections in so far as the finding recorded by the Trial Court on the aspect of cruelty and desertion, learned Counsel for the respondent/cross-objector submits that the same is not being pressed in the light of the dismissal of this appeal and confirming the decree for divorce and dissolution of the marriage granted by the Trial Court in favour of the respondent/wife. Both appeal and cross-objections are dismissed accordingly.
(2003) AIR(Karnataka) 373 : (2003) 3 CivCC 311 : (2004) 1 DMC 76 : (2003) ILR(Karnataka) 2096 : (2003) 4 KantLJ 365 : (2003) 3 KCCR 2101
