A brief narration of the facts will help to appreciate the questions argued before me, with

thoroughness and fairness, by counsel for the appellant and his learned friend opposite. (A young
advocate of this court, Sri Manhu, who has impressed me with his industrious bent and depth of
preparation on questions of Muslim law, has, as amicus curiae, brought into my judicial ken old
texts and odd material which are outside the orbit of the practising lawyer). The plaintiff had
attained puberty even before her marriage and soon after the wedding, the bridal pair moved on
to the husband's house. The very next day the defendant left for Coimbatore where he was
running a radio dealer's business. A month's sojourn in the house of the husband and then the girl
went back to her parents, the reason for her return being blamed by each on the other. This
separation lasted for over two years during which span the defendant admittedly failed to
maintain the wife, the ground alleged by the defendant being that he was willing and indeed,
anxious to keep her with him but she wrongfully refused to return to the conjugal home -- thanks
to the objectional inhibition by the father of the girl. The husband, finding the young wife
recalcitrant, moved the mosque committee, through his brother (Ext. D2) but the effort failed and
so they reported that divorce was the only solution (Ext- D4). Anyway, after preliminary
skirmishes, in the shape of lawyer notices, a litigation for dissolution of marriage erupted. The
trial court dismissed the suit but the Subordinate Judge's Court granted a decree for dissolution of
the marriage. The aggrieved husband has come up to this court challenging the validity of the
decree of the lower appellate court. His counsel, Shri Chandrasekhara Menon, has highlighted a
seminal issue of Muslim law -- the right of a female wrongfully leaving the matrimonial home to
claim dissolution through court for mere failure of the husband to maintain the erring wife for 2
years.

There is persuasiveness in this reasoning but on the facts found in the present case, even the
Lahore view cannot sustain the plaintiff's claim, while another ruling reported in Rabia Khatoon
v. Mohd. Mukhtar Ahmad, (AIR 1966 All 548) goes against her stand.

5. Now, to the other grounds. Section 2 (ix) of the Act is of wide import and preserves the
woman's right to dissolution of her marriage on any ground recognised as good under Muslim
law. Thus, it is perfectly open to a female spouse to press into service not merely the ground set
out in Clauses (i) to (viii) but also any other which has enjoyed recognition under the Shariat.
Section 2 (ii) liberates a woman from her matrimonial poundage if her husband "has neglected or
has failed to provide for her maintenance for a period of two years". We have, therefore, to
examine whether the plaintiff has been able to make out any ground sanctioned by the Muslim
law or set out in Section 2 (ii) of the Act. There is a sharp cleavage of opinion in India on the
scope and meaning of this latter provision while the former clause has not been expressly
pronounced upon.

12. The learned Judge explained the need to answer the question with reference to the Muslim
law:

"It is true that Act 8 of 1939" observed his Lordship, "crystallises a portion of the Muslim
law ............... but it is precisely for that reason that it must be taken in conjunction with the
whole of the Muslim law as it stands. Under the Muslim law, it is the duty of the wife to obey
her husband and to live with him unless he refuses to live with her or unless he makes it difficult
for her to live with him ............... When the law enjoins a duty on the husband to maintain his
wife, it is obvious that the wife can only be maintained at the place where she ought properly to
be ............ If she wants for no reason to be maintained elsewhere, she can clearly claim no
maintenance from husband under the Mahomedan law. Since her right to claim maintenance is
limited to this extent by the Mahomedan law, it must necessarily follow that in Clause (ii) of
Section 2 of Act 8 of 1939 the Legislature intended to refer only to this limited right and to no
other ...............It would be against all canons of judicial interpretation to hold that a wife's right
of maintenance, in so far as Act 8 of 1939 is concerned, is different from that contained in the
rest of the Mahomedan law".

"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."

14. Even here, I may mention that Section 2 (ii) does not speak of the wife's
right of maintenance but only of the fact of her being provided with
maintenance and this is the ratio of the ruling in AIR 1950 Sind 8. Tyabji, C.
J., elaborately examined this branch of Muslim jurisprudence as well as the
precedents under Section 2 (ii) of the Act and wound up:
"Having very carefully considered the reasoning in all these
cases this Lordship adverts to the rulings pro and con) 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 ordinary
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
marriages, 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
starting 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 a dissolution is
allowed, are entirely different. A dissolution of a marriage is allowed when
a cessation of the state of marriage has in reality 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 a
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 sub-continent into conformity with the
authoritative texts. A very strong select committee which included
Sir Nripendra Nath Sircar, Sir Muhammad 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 Muhammad Zafrullah 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 to the grounds upon which
divorce is permissible under the Muslim law. That is the chief merit of this
Bill."

(Sir Zafrulla proved a poor prophet on this point any way1)