JUDGMENT

Mohd Ibrahim, J C - This appeal arises out of a suit for dissolution of marriage under the Dissolution of Muslim Marriages Act (VIII [8] of 1939). It was brought by Mt. Amatur Rahim against her husband, Fazal Mahmud, on the allegations, (a) that she had been treated by her husband with cruelty, (b) that the defendant had failed to maintain the plaintiff and her children for over two years and, (c) that he had failed to perform his marital obligations for a period of over three years.

2. The defendant resisted the suit and denied the truth of the above allegations.

3. The trial Judge, after considering the whole of the evidence carefully, found that the plaintiff had failed to substantiate her plea of cruelty. He rather accepted the defendant's story that he had been deserted by the plaintiff of her own accord. He also found that since the plaintiff had deserted her husband, she had rendered the performance of marital obligations quite impossible. He further held that though the plaintiff was not maintained by the defendant for over two years, he was not liable to maintain her since he was deserted by his wife and since the latter was not prepared to return to her husband under any circumstance. He relied on Zafar Hussain v. Mt. Akhari Begum A.I.R. 1944 Lah. 336, in which following observations are made:

It is not correct to say that Section 2 (ii)(The Dissolution of Muslim Marriages Act, VIII [8] of 1939) casts upon the husband an absolute duty to maintain his wife in all oases and any failure in that duty would be a ground for divorce even if the wife herself was at fault and was really the cause of the husband refusing to maintain her. Before a husband can be said to have neglected or failed to provide maintenance for his wife, it must be shown that the husband was under a legal duty to provide such maintenance. If the husband was not under Mahomedan or Anglo-Mahomedan law bound to maintain his wife, it cannot be said that he had neglected or failed to maintain her, if he sent her no money or other maintenance. A Mahomedan husband is not legally bound to provide maintenance for his wife if the latter, without reasonable cause refused to live with her husband, disobeys his instructions and declines to cohabit with him as man and wife and the husband's failure to maintain his wife in such circumstances cannot entitle the wife to a divorce under Section 2(ii).

The learned Sub-Judge accordingly came to the conclusion that the plaintiff was not entitled to a decree and dismissed her suit with costs.

4. The plaintiff appealed to the District Judge, who agreed with the trial Judge that the plaintiff had failed to prove cruelty and non-performance of marital obligations without reasonable cause. He also affirmed the finding of the trial Judge that the defendant had failed to maintain the plaintiff for over two years, though it was beyond his control to have done so because the plaintiff had refused to live with him. He was, however, of opinion that under Act VIII [8] of 1989, a wife was entitled to a divorce on the ground of her husband's failure to pay her maintenance for over two years even if she refused, without any reasonable cause, to live with her husband and declined to cohabit with him as man and wife. He followed Ahmad Jan v. Mt. Sultan Bibi A.I.R. 1943 Pesh. 73 and Mt. Zainaba v. Abdul Rahman A.I.R. 1945 Pesh. 51. In the first of those cases, it was held that Act VIII [8] of 1939 does not lay down that its provisions shall be subject to the principles of Mahomedan law; that the Act is complete in itself and crystallizes a portion of Mahomedan law which before it came into force was not codified and consisted of principles only and that all that has to be decided is whether the husband has maintained his wife for two years preceding the suit irrespective of the fact whether the woman was entitled' to maintenance or not under Muslim law. In the second case a similar view was taken and Zafar Russain v. Mt. Akhari Begu