A wife's refusal to live with her husband without any justifiable cause amounts to a breach of her marital obligations, which relieves the husband of his duty to maintain her under Section 2(II) of the Dissolution of Muslim Marriages Act, 1939.

Mudholkar, J—This is a second appeal by a Muslim wife from the dismissal of her suit for dissolution of her marriage with the resp Kasim Ali.

2. It is common ground that the applt. who belongs to Raipur, was married to the resp. who is a business man at Bemetara, on 23-4-1944. After her marriage the applt. went with her husband to Bemetara & lived with him for some time. She has no parents but one Hazrat Gul of Raipur treated her as his own daughter. (I would refer to him as her adoptive father). He brought her back to Raipur from Bemetara on 20-5-1944. Then sometime in the month of June, her husband fetched her back to his house. In the month of September she took ill & so she returned to her adoptive father's house at Raipur. That was towards the end of September. It may be mentioned that she was actually taken there by her father-in-law. Ever since then, she has stayed at Raipur & despite the request of her husband, has refused to return to Bemetara & live with him.

3. On 30-10-1946 the applt. served a notice on the resp. calling upon him to grant her a divorce & pay her dower but the latter declined to grant her a divorce & stated that he had not abandoned her & was willing to maintain her in his house. He, however, did not send any money to her for her maintenance ever since she went to her adoptive father's house in September 1944. Thereupon, she brought the suit, out of which this second appeal arises, on 5-4-1947.

4. She founded her suit on a large number of grounds but as the Cts. below found against her on all of them she now rests her claim for divorce only on one ground, & that is that, in point of fact, her husband did not provide her with maintenance for a period of two years & that therefore under Clause (ii) of Section 2, Dissolution of Muslim Marriages Act, VIII [8. of 1939, she is entitled to have a divorce.

5. Section 2 of the Act sets out the various grounds on which a woman married under Muslim Law can claim a decree for the dissolution of her marriage. The ground specified in Clause (ii) of Section 2 is the husband's failure or neglect to provide maintenance to the wife for a period of two years. The question is as to whether on the facts found in this case it can be said that there has in fact been neglect or failure on the part of the resp. to maintain the applt. for a period of two years.

6. It must be borne in mind that the applt. voluntarily stayed away from her husband's house & that despite the respt.'s request to return to his house & live with him & despite also his offer of maintaining her there, she chose to stay in the house of her adoptive father. Can it, therefore, be said that these circumstances indicate neglect or failure on the part of the resp. to maintain the applt. merely because he did not send any money to her during this period?

7. Relying on the decision of a Division Bench of the Chief Ct. of Sind Noor Bibi v. Pir Bux,1950 AIR(Sind) 8 the learned Counsel for the applt. argued that the failure of the reap to provide the applt. with maintenance during the time she stayed away from him does amount to a neglect or failure on the part of the husband to maintain the wife & therefore furnishes a ground for divorce. In that case, Tyabji C.J., who delivered the judgment of the Ct. expressed his dissent from the view taken by Lobo J. in Khatijan v. Abdulla, 1943 AIR(Sind) 65 & also with that taken in some decisions of other Cts. & reiterated the view which he had himself taken in a previous unreported case.

8. In Khatijan's case, Lobo J. laid down that Act VIII [8. of 1939 was never intended to abrogate the general law applicable to the Muslims & that a husband cannot be said to have neglected or failed to provide maintenance for his wife as contemplated in Clause (ii) of Section 2 unless under the general Mahomedan law he was under an obligation to maintain that wife. Lobo J. pointed out that under Mahomedan law a husband is bound to maintain his wife (unless she is too young for matrimo