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Civil Appeal No. 22 of 1951, decided on 20th January, 1952, against the order of District Judge, Rahimyar Khan, dated 28th June, 1951.
S. 2 (2) as amended by Bahawalpur Notification No. 39, dated 1st June, 1943‑Maintenance‑Procedure prescribed by Notification not observed‑Case remanded.
Where the procedure prescribed by Bahawalpur Notifica tion No. 39, dated 1st June, 1943, amending section 2 (2) of Dissolution of Muslim Marriages Act (VIII of 1939) was not observed and the husband was not given a period of time during the pendency of the wife's suit for dissolution on the ground of neglect to maintain, to change his attitude, the case was remanded for carrying out the requirements of the law.
‑Mst. Rabal brought a suit for the dis solution of her marriage against her husband Dadoo alleging ill treatment and failure on the part of her husband to pay her maintenance for 2 years. The Court of first instance held that the factum of cruelty was not established and without going into the second question dismissed the suit of the plaintiff. The learned District judge agreeing with the trial Court on the first point and without going into the second maintained the decree of the Court of first instance. This is a second appeal before me. The suit was brought by the plain tiff under Dissolution of Muslim Marriages Act, 1939. Clause 2 of section 2 of the Act reads :‑
"A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage if the husband has neglected or has failed to provide for her maintenance for a period of 2 years."
If the matter had ended there then there was likelihood for the plaintiff to succeed in her claim but a local amendment of this Clause of section 2 had been introduced by Notification No. 39, dated 1st of June, 1943, according to which the husband during the pendency of the suit should be given a period to change his attitude and to give maintenance to his wife. If he fails to change his attitude then the suit for the dissolution of marriage ought to be decreed. If the Court is satisfied that the husband has complied with the order of the Court and is further satisfied that he will continue in future to maintain his wife then the case should be decided bearing that factum in mind. This procedure has not been adopted by the Court of first instance, neither this question appears to have been placed before the learned District Judge. In these circum stances T have no alternative but to accept the appeal and set aside the judgment and decree of the Court below 'and send the case back to the original Court with the direction that he should carefully follow the procedure laid down in the notifi cation quoted above in order to decide the suit finally. The cost in this Court shall be borne by the parties while the cost in the Court below shall be the cost in the cause.
Parties are informed to appear in the Court of first instance on 27th of January, 1952.
A. H.
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