| Citation | AIR 1971 Ker 261 |
| Date of judgment | 24/06/1970 |
| Court | Kerala High Court |
| Case type | Civil Petition |
| Appellant | K. Chandrasekhara, T. Chandrasekhara Menon, C. Sankara Menon, K. Vijayan. |
| Respondent | N.N Venkitachalam. |
| Bench | Hon’ble Justice V.R. Krishna Iyer. |
| Referred | Section: 2 of Dissolution of Muslim Marriages Act, 1939 and Sub-section (ii), (vii) and (ix) of Section 2 |
FACTS OF THE CASE
- The respondent aged 15 was married to an appellant who was twice her age in 1962.
- The respondent attained puberty before the marriage and soon after their wedding was residing with her husband in their conjugal home.
- The immediate next day the appellant went off to Coimbatore where he ran a radio dealer’s business.
- The respondent stayed in her conjugal home for one month after which she returned back to her parents and lived separately for over two-year years.
- During this period the appellant did not maintain her.
- Respondent filed a suit for dissolution of marriage for which the defendant alleged that he was willing to keep her but she refused to return to the conjugal home.
- While the trial court dismissed the suit, the Subordinate Judge’s court passed a decree for dissolution of marriage in Favor of the wife.
- The husband filed an appeal for the same challenging the validity of the decree of the lower appellate court.
ISSUES:
Whether the wife can claim dissolution of marriage for the failure of husband to maintain the wife for two years?
Appellant: –The appellant alleged that he was willing to keep her but she refused to return conjugal rights. She wants the dissolution of marriage for any reasonable cause and she lift her conjugal house without reasonable grounds.
Respondent: The respondent, with the help of sub-section (ii), (vii), and (ix) of section 2 which deals with grounds for dissolution under the Dissolution of Muslim Marriages Act (Act 8 of 1939), argued that the plaintiff was not 15 years old when she got married as provided under sub-section (vii) and they also argued that the husband has failed to provide maintenance to the wife for 2 years under sub-section (ii) of Section 2.
JUDGMENT: –
Mr. Justice Krishna lyer rejected the husband’s plea and upheld the decree for dissolution of marriage. The court held that a Muslim woman under section 2(ii) of the Act, can sue for dissolution of the score that she has not as a fact been maintained even if there is a cause for it. In the opinion of the Court, the reason why the husband has not maintained the wife for a statutory period of two years is immaterial. The wife is entitled to decree for the dissolution of her marriage on this ground if the husband does not maintain her for two years, although during this period she lives separately from him without any reasonable excuse. It is submitted that this view is not correct. In another case Mst Nur Bibi vs Pir Bux Bombay high court laid down that where a husband has failed to provide maintained for his wife for a period of two years immediately preceding the suit, the wife would be entitled to a dissolution of her marriage under Section 2(ii) of Act in spite of the fact that on account of her conduct in refusing to live with her husband, she would not have been entitled to enforce any claim for maintenance against the husband in respect of the period during which the husband has failed to maintain her.
The husband cannot defend the suit merely on the ground that he was unable to maintain her due to his poverty, failing health, unemployment, imprisonment or any other ground, such as, personal properties of his wife, unless it is submitted, that her conduct has been such as to disentitle her to maintenance under Muslim Law.
Conclusion: –
In my opinion in this case the judgement delivered by the justice Kishana Iyer is correct because according to section 2(ii) of Muslim dissolution act every Muslim woman have right to dissolved her marriage on ground of that the husband has neglected or has failed to provide for her maintenance for a period of two years in this case husband cannot maintained her for a period of two years she can entitle to filed a suit against her husband.
Reference: –
Mohammedan Law by Prof. I.A.Khan
This Article written by Aarti Goyal of Sardar Patel Subharti Institute of Law, intern at Legal Vidhiya.
