JUDGMENT

1. This is an appeal from a decree of the learned Additional Subordinate Judge, Lucknow, dated 20th April 1931, affirming a decree of the learned Munsif (North) Lucknow, dated 25th August 1930. The facts of the case, so far as it is necessary, to state them for the purpose of disposing of this appeal, are as follows: The parties belong to-respectable families. They are Shia Mahomedans. They were married in 1912, but their married life has been very unhappy. The plaintiff, Mt. Mustafa Begam, lived with her husband, Mirza Kazim Baza Khan, defendant, at his house for some months after the marriage. She then came back to her parents' house and did not go back to her husband's house for about five years. She is the only and pet- child of her parents. In 1918 the defendant brought a suit against the plaintiff for restitution of conjugal rights, and a decree was. passed in that suit in terms of a compromise. The plaintiff then lived with the defendant for about 18 months, and during that period a child was born to them. She again returned to her parents' house and since then has never been to the defendant's house. In 1921 the defendant brought a second suit against the plaintiff for restitution of conjugal rights.

2. The suit was again decreed by the appellate Court on the basis of a compromise. Under that compromise the defendant was not entitled to take the plaintiff back to his parents' house, but he could keep her in a separate house and they could live together in that house as husband and wife.

3. This decree, unfortunately, remained a dead letter. The defendant tried to execute the decree some three or four times, but no satisfactory result followed and the parties continued to live separately. The defendant then married another woman, but she died after four years. In 1929 the plaintiff brought a suit against the defendant for " khula " divorce, but subsequently withdrew it with liberty to bring a fresh suit. The present suit was brought by the plaintiff in 1930, claiming divorce on the following grounds: (1) that the defendant falsely accused the plaintiff of theft and bad conduct and caused her great mental and physical pain; (2) that the defendant had bitter and inimical feelings towards the plaintiff, and so they cannot pull on together; (3) that the defendant did not for a long time take any care of the plaintiff and did not provide her with raiment and food and did not in any way discharge his responsibilities; (4) that the defendant owing to his bad nature has so far been maltreating the plaintiff and has all along been trying to harass and defame her; and (5) that the defendant has been spoiling the plaintiff's life merely to get the property of the plaintiff's parents.

4. The claim was resisted by the defendant. He denied all the charges brought against him by the plaintiff. The learned Munsif held that the charges mentioned above were not proved. He held further that the alleged charges could not be grounds for claiming divorce under the Shia law. He therefore rejected the plaintiff's claim. The learned Additional Subordinate Judge agreed with the learned Munsif on questions of fact. He also held that the charges brought by the plaintiff against the defendant were not proved, and that she had failed to prove, specifically, the grounds on which divorce was claimed by her in the present suit. He observed however that the circumstances of the case showed "a high degree of incompatibility of temperament." He then proceeded to discuss the question of law, and came to the conclusion that the plaintiff; "apart from khula " was not entitled to a judicial divorce. He made the following observations in his judgment:

It is therefore clear that any attempt to bring the wife on the level with the husband in the matter of divorce would be against the spirit of Islam. The woman has to labour under the disadvantage that she cannot get divorce from her husband on mere grounds of incompatibility, inconvenience, etc. She must