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2000 DIGILAW 172 (KER)

Muhammed Ashraf v. Nadeera

2000-03-21

K.K.USHA, R.RAJENDRA BABU

body2000
JUDGMENT K.K. Usha, J. 1. The question arising in this appeal is one relating to the interpretation of the provisions contained under S.2(ii) of this Dissolution of Muslim Marriages Act, 1939 (Act 8 of 1939). The contention raised by the appellant that for the wife to take advantage of the provisions contained under clause.(ii) of S.2 as a ground for divorce the nonpayment of maintenance by the husband must be without reasonable cause, was not accepted by the Trial Court. Aggrieved by the above, the husband who was the respondent in O. P. 35/98 before the Family Court, Ernakulam has come up in appeal. 2. The petition was filed under S.2 of the Dissolution of Muslim Marriages Act, 1939 by the respondent herein claimed a decree for dissolution of marriage. The petitioner and respondent are Muslims. Their marriage was solemnized on 12-6-1988. A child was born to them in the wedlock. The petitioner and the respondent have been living separately from 5-10-1992 onwards. The petitioner contended that the respondent has neglected to maintain her for more than two years, that she was subjected to cruel treatment when she was living with the respondent, that the respondent has now married another lady name Rasheeda and therefore the petitioner is entitled to a decree for divorce. The respondent resisted the petition. He contended that he had never ill treated the petitioner, on the other hand, he was meted with ill treatment at the hands of the petitioner. He had not wilfully neglected to maintain the petitioner. She has been living separately from him without any justification. A petition filed by her as M. C. 304/94 claiming maintenance for her and the child was disposed of by awarding maintenance only to the child, Crl. R. P. No. 1172/95 filed against the above order by the wife was rejected by this Court. He admits having contracted a second marriage. According to him, he was compelled to contract second marriage, since the petitioner refused to live with him. The contention put forward by the 2nd respondent is that the petitioner is not entitled to a decree for divorce on the ground of cruelty or on the ground nonpayment of maintenance. 3. He admits having contracted a second marriage. According to him, he was compelled to contract second marriage, since the petitioner refused to live with him. The contention put forward by the 2nd respondent is that the petitioner is not entitled to a decree for divorce on the ground of cruelty or on the ground nonpayment of maintenance. 3. The family Court took the view that the petitioner had not substantiated the ground of cruelty, but following the dictum laid down by this Court in Moosa v. Fathima, 1983 KLT 787 , granted divorce under S.2 of the Dissolution of Muslim Marriages Act, 1939. The Family Court took the view that for taking recourse to clause.(ii) of S.2 it is not necessary for the petitioner wife to prove that she was not being maintained by the husband without reasonable cause. The learned counsel for the appellant submitted before us the view taken by this Court in 1983 KLT 787 and earlier decisions do not lay down correct law and therefore a fresh look has to be taken on the issue. 4. The Dissolution of Muslim Marriages Act, 1939 was enacted to consolidate and clarify the provisions of Muslim law relating to suits for dissolution of marriage by women married under Muslim' Law and to remove doubts as to the effect of the renunciation of Islam by a married Muslim woman on her marriage tie. S.2 provides for the grounds on which a woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage. S.2(ii) with which we are concerned in this appeal reads as follows:- "A woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds. Namely :- XX XX XX ii) that the husband has neglected or has failed to provide for her maintenance for a period of two years.". 5. In the facts of this case it is admitted that both parties are living separate from 5-10-1992 onwards. It is also admitted that when the petitioner filed MC. No. 304/94 for maintenance the court disallowed her claim for the reason that she was living separately from her husband without any sufficient reason. 5. In the facts of this case it is admitted that both parties are living separate from 5-10-1992 onwards. It is also admitted that when the petitioner filed MC. No. 304/94 for maintenance the court disallowed her claim for the reason that she was living separately from her husband without any sufficient reason. The contention raised by the appellant is that under such circumstances, if he is not paying maintenance to her, it would be with reasonable cause and therefore she is not entitled to claim divorce under clause.(ii). The respondent, on the other hand, would submit that the question whether husband fails to maintain for reasonable cause or not is irrelevant for the ground under clause.(ii). The mere fact that he is not maintaining her for a period of two years is sufficient for her to seek a decree for divorce. There is a divergence of view on this issue between different High Courts. Our High Court had been consistently taking the view that a mere failure to pay maintenance would be sufficient for the wife to claim a decree for divorce under clause.(ii). It is not necessary for her to prove that the maintenance is not being granted without reasonable cause. The first decision of this Court on this point is that of V. R. Krishna Iyer, J., as he then was, in Yusuf Rowthan (Defendant) v. Sowramma (Plaintiff), 1970 KLT 477 . After quoting elaborately from earlier judgments of different courts in India taking contrary views and after quoting from Holy Quoran and other authorities on the principles of Muslim Law the learned Judge observed as follows:- "10. The Indian Judge 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? The Indian Judge 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, us administered in India, the Muslim husband has the right to walk out of the wedlock at his whim and secondly, that such an irreparably marred married life was not worth keeping alive." The learned Judge proceeded to hold that "a Muslim woman, under S.2(ii) of the Act, can sue for dissolution on the score that she has not as a fact been maintained even if here is good cause for it the voice of the law, echoing public policy is often that of the realist, not of the moralist." 6. The question again came up for consideration before the same learned Judge in Aboobacker Haji v. Mamu Koya ( 1971 KLT 663 ). The Learned Judge found fault with the lower court for assuming that when the wife withdraws her society from the husband she has no right to maintenance and no neglect to maintain arises at all. According to the learned Judge, "This is a wrong view with a masculine slant, reading into S.2 more than it says." The learned Judge then summed up the view which he has taken in 1970 KLT 477 as "the law to mean that where there has been an actual failure to provide for the maintenance of the wife even if it be because the wife has improperly declined to line with the husband S.2 clause.(ii) is fulfilled." 7. Later, the principles laid down in 1970 KLT 477 was followed by Balakrishna Menon J. in 1983 KLT 787 . A contra view was taken by the Andra Pradesh High Court in Ahmed Abdul Qadeer v. Raggat Banu, (AIR 1978 AP 417). Dissenting from the view taken by Krishna Iyer, J. Jeevan Reddy, J., as he then was, held that "the words "failed to provide" under S.2(ii) must be understood as "failed to provide without reasonable cause". A contra view was taken by the Andra Pradesh High Court in Ahmed Abdul Qadeer v. Raggat Banu, (AIR 1978 AP 417). Dissenting from the view taken by Krishna Iyer, J. Jeevan Reddy, J., as he then was, held that "the words "failed to provide" under S.2(ii) must be understood as "failed to provide without reasonable cause". The absence of the words "without reasonable cause" in S.2(ii) is immaterial and must be deemed to be implicit and inherent in the language employed in clause.(ii). A similar view was taken in Mst. Mabia Khatum Bibi v. Shaikh Anwar Ali, ( AIR 1971 Cal. 218 ), and also in Jamila Khatun v. Kasim Ali Abbas Ali, AIR 1951 Nagpur 375. A learned Single Judge of the High Court of Jammu and Kashmir also took the view that a wife living apart without any justification is not entitled to claim dissolution of marriage under clause.(ii) of S.2 is Mst. Zoona v. Mohamad Yakub Najjar, AIR 1983 J & K 78. 8. We are not persuaded to take a different view from what has been consistently taken by this Court in the matter of interpretation of clause.(ii) of S.2. The Supreme Court had occasion to consider the scope of the provisions ' contained under S.2 of the Act in Mst. Zohara Khatoon v. Mohd. Ibrahim, AIR 1981 SC 1243 . Before referring to the statement of object and reasons of the Act 1939 the Supreme Court has referred to the background in which state was enacted as follows:- "18. There can be no doubt that under the Mohammedan law the ' commonest form of divorce is a unilateral declaration of pronouncement of divorce of the wife by the husband according to the various forms recognized by the law. A divorce given unilaterally by the husband is especially peculiar to Mohammedan law. In no other law has the husband is especially peculiar to Mohammedan law. In no other law has the husband got a unilateral right to divorce his wife by a simple, declaration because other laws, viz., the Hindu law or the Parsi Marriage and Divorce Act, 1936, contemplate only a dissolution of marriage on certain grounds brought about by one of the spouses in a Court of law. 19. In no other law has the husband got a unilateral right to divorce his wife by a simple, declaration because other laws, viz., the Hindu law or the Parsi Marriage and Divorce Act, 1936, contemplate only a dissolution of marriage on certain grounds brought about by one of the spouses in a Court of law. 19. Before the enactment of the Act of 1939 a woman under pure Mohammedan law had no right to get a decree for divorce from the husband if he refused to divorce her. This was undoubtedly the fundamental concept of divorce as laid down by the Mohammedan Law. As, however, some of the Muslim Jurists and Theologists were of the view that where a husband becomes impotent or disappears for a large number of years treats his wife with cruelty, the wife should have some right to approach the Qazi for dissolving the marriage. Relying on these authorities the legislature intervened and passed the Dissolution of Muslim Marriages Act, 3939 under which the wife was conferred a legal right to move the civil court for a decree for dissolution of marriage on the grounds specified in S.2 of the Act of 1939." 9. The relevant portion of the statement of object and reasons of Act of 1939 may be extracted thus:- ''There is no provision in the Hanafi Code of Muslim Law enabling a married Muslim woman to obtain a decree from the court dissolving her marriage incase the husband neglects to maintain her, makes her life miserable by deserting or persistently maltreating her or absconds leaving her unprovided for and under certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India. The Hanafi Jurists, however, have clearly laid down that in cases in which the application of Hanafi Law causes hardship, it is permissible to apply the provisions of the "Maliki, Shaffi'i or Hambali Law". Acting on this principle the Ulemas have issued fat was to the effect that in cases enumerated in Clause.3, Part A of this Bill (now see S.2 of the Act), a married Muslim woman may obtain a decree dissolving her marriage .... Acting on this principle the Ulemas have issued fat was to the effect that in cases enumerated in Clause.3, Part A of this Bill (now see S.2 of the Act), a married Muslim woman may obtain a decree dissolving her marriage .... As the courts are sure to hesitate to apply the Maliki Law to the case of a Muslim woman, legislation recognizing and enforcing the above mentioned principle is called for in order to relieve the sufferings of countless Muslim women," 10. Keeping in mind the object of the Act we will now consider the scope of clause.(ii) of S.2. clause.(ii) provides that a married Muslim woman can obtain a decree for dissolution of her marriage on the ground that the husband has neglected or failed to provide for her maintenance for a period of two years. It is a well known rule of construction that no words are to be added to the statute unless there are adequate grounds to justify an inference that the legislature has intended something which it has omitted to express. "The dominant purpose in construing a statute is to ascertain the intention of the Parliament. One of the well recognized canons of construction is that the legislature speaks its mind by use of correct expression and unless there is any ambiguity in the language of the provision and unless there is any ambiguity in the language of the provision the Court should adopt literal construction if it does not lead to an absurdity. The first question to be posed is whether there is any ambiguity in the language used in R.40. If there is none, it would mean the language used, speaks the mind of Parliament and there is no need to look somewhere else to discover the intention or meaning. If the literal construction leads to an absurdity external aids to construction can be resorted to. To ascertain the literal meaning it is equally necessary first to ascertain the juxtaposition in which the rule is placed, the purpose for which it is enacted and the object which it is required to subserve and the authority by which the rule is framed. This necessitates examination of the broad features of the Act." (Lt. Col. Prithi Pai Singh Bedi v. Union of India and others, ( AIR 1982 SC 1413 ). 11. This necessitates examination of the broad features of the Act." (Lt. Col. Prithi Pai Singh Bedi v. Union of India and others, ( AIR 1982 SC 1413 ). 11. In the present case legislature has not made the ground for divorce under clause.(ii) conditional that neglect or failure to provide for maintenance of the wife is without a reasonable cause. On the other hand we find in clause.(iv) which provides another ground for divorce such a specific condition is added. It provides that the wife would be entitled to seek divorce on the ground that the husband has failed to perform his marital obligations for a period of three years 'without reasonable cause'. When the very same legislature under the very same section has added the condition 'without reasonable cause' in clause.(iv), but omitted the same in clause.(ii), it is not for this court to add that condition under clause.(ii) also. This is the view taken by Tyabji, C. J. in Mt. Noor Bibi v. Pir Bux. (AIR 1950 Sind 8). The relevant portion is quoted below:- 16. Having very carefully considered the reasoning in all these cases, 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. To hold otherwise would be to make the task of a draftsman impossible. The question whether there was 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. A husband may maintain a wife whether she was or was not, under the particular circumstances, entitled to maintenance; and similarly not maintain a wife, whether she was or not entitled to maintenance. A husband may maintain a wife whether she was or was not, under the particular circumstances, entitled to maintenance; and similarly not maintain a wife, whether she was or not entitled to maintenance. 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. But apart from this, it seems 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.(ii). 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 to maintain the wife for two years and further that a suggestion was made that the word "omitted" be substituted for (he 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 a 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 causes 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 Mohammedan law and startling state of affairs would result. With all respect to the learned Judge who adopted this method of construction, it seems to me that this is not permissible. It is a settled rule of construction that when (he enacted words are clear, they must be given effect to, and the courts must not busy themselves with supposed intentions or consequences. 17. As a matter of fact, no abrogation of the Mohammedan law relating to the maintenance of wives or otherwise is involved in dissolving a marriage, on proof of a husband's failure to maintain his wife, even when the wife had by her conduct disentitled herself from claiming maintenance. 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." 12. Abdul Rashid, J. also expressed the same view in Manak Khan v. Mt. Mulkkan Bano, AIR 1942 Lah. 92. Abdul Rashid, J. also expressed the same view in Manak Khan v. Mt. Mulkkan Bano, AIR 1942 Lah. 92. The relevant portion is quoted below:- Where the words of the statute are unambiguous, effect must be given them whatever the consequences. It is laid down expressly in clause. (iv) of S.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." 13. A contention was raised by the learned counsel for the appellant that since the term used in clause.(ii) is that "the husband has neglected or has failed to provide for her maintenance," it has to be taken that there was failure on the part the husband to discharge his obligation to maintain his wife without reasonable cause. We do not find much merit in this contention also. When we examine the provisions contained under S.125 of the Crl. P.C. we find the word "neglect" has used in sub-s.(1) of S.125, but sub-s.(4) still provides (hat no wife shall be entitled to receive an allowance from her husband under S.125 if, without any sufficient reason, she refuses to live with her husband. If the word "neglect" would take in the concept of failure to pay without reasonable cause also as contended by the appellant, then sub-s.(4) of S.125 was unnecessary. 14. On an overall consideration of the statutory provisions, in the background in which Dissolution of Muslim Marriages Act, 1939 was enacted we find no justification to add the words 'without any reasonable cause' in clause.(ii) as contended by the appellant. We are, therefore, in full agreement with the view taken in the earlier judgments of this Court referred above and, according to us, the dictum laid down therein does not require reconsideration. In the result, the appeal fails and it stands dismissed.