A wife's refusal to live with her husband without justifiable cause bars her claim for dissolution of marriage under Section 2(ii) of the Dissolution of Muslim Marriages Act, 1939, on the ground of neglect or failure to maintain.

JUDGMENT :

R.N. Misra, J. - The Defendant-husband is the Appellant against the decree of the appellate Court granting dissolution of marriage in a suit by the Plaintiff, by reversing the decree of the trial Court.

2. The parties got married in April, 1959. It was alleged by the wife that after their marriage the Defendant came and lived with the Plaintiff in her house. About a year after marriage, a son was born to them and that boy has been given away in adoption by the Defendant. The Plaintiff further alleged that the Defendant bad taken to drinking, developed ill contacts and started physically assaulting the Plaintiff on several occasions. He also did not maintain the Plaintiff. In June, 1961 he physically assaulted the Plaintiff and she was laid up for quite a long time on account of injuries sustained by her. From July, 1961 the Defendant went away and kept no contacts with the Plaintiff. His whereabouts were not known to the Plaintiff, nor did he ever provided any maintenance for her. As the Defendant had failed to provide maintenance for more than two years, the wife applied for dissolution of the marriage.

3. The Defendant denied all the allegations made by the Plaintiff. He pleaded that the Plaintiff has started a false case at the instance of her father. He had been providing maintenance for her from time to time. He was devoted to her. The Defendant was satisfied that the Plaintiff was equally devoted to him but on account of the undue intervention of the Plaintiff's father there has been serious rift on many occasions. The Plaintiff and their Bon should come and live with the Defendant so that there would be no further dispute.

4. The learned trial Judge came to hold that the Plaintiff had failed to estsblish that there was any cruelty to her or that the Defendant was indulging in gambling and had developed drinking habits. The plea of abandonment was also found against. He further found that the Plaintiff had relationship with the Defendant till 1962-63. Then he came to examine the question of maintenance and non-payment thereof. He came to hold that the Defendant had not been paying any maintenance for wen over two years before the suit but the Plaintiff never expected any maintenance as she lived along with her father and was being maintained by him. He accordingly dismissed the action.

5. On Plaintiff's appeal, the learned Subordinate Judge affirmed the findings regarding absence of cruelty and failure of the Plaintiff to establish that the Defendants indulged in gambling and drinking or that he had abandoned her. He however, came to hold that the Defendant was bound to maintain the Plaintiff and since he had not maintained her for two years before the suit the Plaintiff was entitled to dissolution of marriage under the provisions of Section 2(ii) of the Dissolution of Muslim Marriages Act, 8 of 1939. He accordingly decreed the suit and granted dissolution of marriage. The husband is now in Appeal against this reversing decree.

6. Mr. Pal contends that the learned appellate Judge has clearly gone wrong in coming to hold that the husband was bound to maintain the Plaintiff even if she lived apart wilfully and contrary to the desire or directions of the husband. Wild allegations bad been made in the plaint alleging cruelty, gambling, drinking, abandonment etc. An those have been negatived concurrently by both the Courts below. The learned appellate Judge took a wrong view of the law and illegally granted dissolution of marriage.

7. This leads us to an examination of the provision of Act, 8 of 1939. Several grounds have been provided in Section 2 of the Act for obtaining decree for dissolution of marriage. As far as relevant, the provisions of that section reads as follows:

A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on anyone of more of the following grounds, namely:

(ii) that the husband has neglected or has failed to provide for her maintenance for a period