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Appeal from Appellate Decree Nos. 831 and 832 of 1967, decided on 7th March 1968.

‑Framing of issues‑Non‑framing of specific issue without any prejudice to parties‑Cannot, by itself be a ground for asking fresh trial.

The non‑framing of specific issues by itself cannot be a ground for asking a fresh trial in the suit, where it is shown that the parties have not been prejudiced by such non‑framing of the issues.

Province of East Pakistan v. Nawab Khawaja Habibullah Bahadur 18 D L R 727; Mst. Minta v. Syed Fuzl Rub and others M I A 573 and Sardaran and others v. The Municipality, Lyallpur P L D 1961 Lah. 35 rel.

‑Plea of non framing of specific issue on particular point --Neither any specific ground on point taken in memorandum of second appeal nor such ground taken in first appeal‑Appellant, held, could not succeed in second appeal on such point.

‑Cruelty‑Conduct on part of husband rendering wife's life miserable‑Sufficient to attract provision of S. 2(viii)(a) ‑Treatment of husband need not necessarily be accompanied by some assaults on wife ‑ An isolated slap or trivial blow by loving husband may not come within mischief of section, provided there are adequate materials to interpret same in different way‑Entire bundle of circumstances and background of such occurrence as well as its effect on life and physical and mental well being of wife has to be considered in arriving at a finding whether wife's life was rendered miserable thereby or‑.not‑Material on record showing that husband, who was deaf and dumb, had assaulted wife time and again and had rendered wife's life miserable by his conduct‑Wife, in circumstances, held, entitled to dissolution of marriage in terms of S. 2 (viii)(a).

An isolated slap or a trivial blow by a loving husband may not come within the mischief of section 2(viii)(a) provided there are adequate materials to interpret the same in a different way. The entire bundle of circumstances and the background of such occurrences as well as the effect on the life and the physical and mental well being of the wife has to be considered in arriving at a finding whether the wife's life was rendered miserable thereby or not.

Jamieson v. Jamieson (1952) 1 A E R 875 and The Holy Quran, Verse 34, Sura 4 ref.

‑Failure to maintain‑Non payment of maintenance by itself‑No ground for founding an action for dissolution of marriage under Muslim Law‑Wife voluntarily ruining away from husband's house without sufficient justification and declining to live with husband despite husband's requests to return‑Not entitled to bring suit for dissolution of marriage on grounds of non‑payment of maintenance‑Wife having been forced to leave husband's house due to cruelty and conduct of husband rendering her life miserable and living with her brother for five years before filing of suit‑Husband keeping indifferent and not giving her maintenance‑Plea of attempts on part of husband's relative to bring her back not proved to satisfaction of Courts‑Attempt to bring her back made by husband 2 years before filing of suit allegedly having failed due to hindrance by her brothers and sisters‑Wife, in circumstances, held entitled to receive her normal and ordinary maintenance from husband‑Non‑payment of maintenance for period of more than two years during her stay with her brother, in circumstances, held, entitled her to a decree for dissolution of marriage.

Non‑payment of maintenance by itself is no ground for founding an action for dissolution of marriage under the Muslim Law. In a case where the wife voluntarily runs away from her husband's house without sufficient justification and despite the husband's request to return and live with him, she disobeys him and declines to live with him then such a wife cannot be entitled to bring a suit for dissolution of marriage on the ground of want of maintenance for more than two years.

It was not a case of refusal on the part of the wife to stay with the husband and to perform her lawful obligations under the marriage contract but was a ‑case where she was prevented from doing so due to the obstacle and hindrance by her brothers and sisters. Moreover, the Court of appeal below found that her life was rendered miserable by the cruelty of conduct on the part of the husband, in that view of the matter, the Court was incline to hold that nothing had been proved on behalf of the husband to show that she was disentitled by her conduct to receive her normal and ordinary maintenance for a period of more than two years during the time she was staying with her brothers and sisters. On this ground the wife was held entitles to get a decree for dissolution of her marriage.

8 D L R 51; Mst. Aishan BIN v. Sain 10 D L R Lah. 7 and Nuruddin Ahmed v. Masuda Khanam 9 D L R 8 ref.

Upendra Kumar Roy with Shahid Alam for Appellant.

Abdus Salam with Abdul Baset Mazumdar for Respondent.

These two second appeals arise out of Title Suit No. 38 of 1965 and Title Suit No. 10 of 1966 of the 1st Court of Munsif, Brahamanbaria. On the prayer of the parties these suits were tried analogously as the same question of law and facts are involved in these two suits and the parties are also the same.

Title Suit No. 38 of 1965 was filed by Firoza Khatoon against her husband Goas Ali who is deaf and dumb for dissolution of marriage and Title Suit No. 10 of 1966 was subsequently brought by Goas Ali against her wife Firoza Khatoon for restitution of conjugal rights. These suits were disposed of by one judgment.

The case of the plaintiff Firoza Khatoon in Title Suit No. 38 of 1965 is that she was married to Goas Ali on 6th Magh 1363, B. S. corresponding to 20‑1‑57 at a dower of Rs. 900 only. At the time of her marriage she was a minor and was 10 years old only. She was without any father and guardian at the time of the marriage and was given in marriage against her will by her brother. The defendant Goas Ali is deaf and dumb and also an idiot and cannot distinguish between Halal and Haram and Shara and Sharaiat and is lacking in all natural sentiments of an ordinary human being. After her marriage, the plaintiff tried her best to lead a happy married life and to adjust herself to the needs of her husband but as her husband is a subnormal and abnormal person as such all her efforts failed. She has all through been deprived of proper marital treatment from her husband and has suffered continuous mental injuries and physical torture and utmost social embarrassment due to unusual behaviour from her husband. She was, ultimately, forced to leave her husband's house 5 years back and since then she has been living with her brothers and sisters through many odds and perils. During this period of 5 years her husband did not pay any maintenance to her nor perform any marital obligation. She, therefore, prayed for dissolution of marriage.

Goas Ali, the husband‑defendant of Title Suit No. 38 of 1965 filed a written‑statement wherein he denied the case of the plaintiff as made out in the plaint. His further case is that the parties lived at a short distance from each other and were intimately known to each other before the marriage and the plaintiff duly consented to the marriage. It was further pointed out that the husband Goas Ali though is deaf and dumb but is not an idiot. He is quite intelligent and healthy and leads a normal life and performs his work in the field with ability. After his marriage he lived happily with Firoza Khatoon and three children were born out of the wedlock. These children however, died after their birth. In 1373 B. S. in the month of Jaistha she went to her father's house on a pleasure trip but she did not come back after that. In the month of Aswain of that year defendant's uncle Monzur Mia went to bring her back to attend the marriage ceremony of his younger brother but she was not allowed to come by her brother and other relations.

In Title Suit No. 10 of 1966 the husband Goas Ali prayed for restitution of conjugal rights on the same facts as stated in his written statement in the earlier suit. Firoza Khatoon, the wife resisted the suit of the husband on the above facts as stated in her plaint and has therefore claimed that the husband is not entitled to get any restitution of conjugal rights.

The trial Court after considering the facts and materials on record dismissed the Title Suit No. 38 of 1965 for dissolution of marriage and decreed the Title Suit No. 10 of 1966 for restitution of conjugal rights and directed the wife to go to the domain of the husband. The wife Firoza Khatoon filed two appeals which were numbered Title Appeals Nos. 19 and 20 of 1967 against the judgment and decree of the trial Court in the above‑mentioned suits.

The learned Subordinate Judge, 3rd Court, Comilla by one judgment dated 30‑6‑67 allowed these appeals and decreed the suit for dissolution of marriage filed by the wife and dismissed the suit for restitution of conjugal rights filed by the husband. These two second appeals have been filed by the husband Goas Ali against the judgments and decrees of the lower appellate Court.

Mr. U. K. Roy, the learned Advocate for the appellant, has firstly contended that the trial Court failed to frame proper issues in the suit and in the absence of such issues the decision of the Courts below with regard to non‑payment of maintenance and cruelty of conduct of the husband towards his wife is entirely illegal and this has vitiated the judgment of the courts below. The learned Advocate has further contended that the suit should be sent back to the trial Court for framing proper issues on these points and fresh trial of these suits should proceed after taking necessary evidence in the light of those issues.

On the pleadings of the parties, the following issues were framed by the trial Court :‑

(1) Is the marital tie between the plaintiff, and the defendant. in T. S. No. 38/65 liable to be dissolved on the defendant's failure to perform marital obligation as alleged for

(2) Is the plaintiff of T. S. No. 10/66 entitled to get back the defendant to his domain

(3) Did the marriage between the plaintiff and the defendant duly held and consummated

(4) To what relief, if any, the plaintiff in both these suits are entitled 7

The trial Court on these issues, however, discuss the evidence at length and arrived at findings of fact to the effect that there is no evidence to show that the husband ill‑treated or assaulted the wife as claimed by her and also disbelieved the case of the wife to the effect that the husband failed to perform marital obligation and that the has been living at the house of her brothers since 6/7 years.

The lower appellate Court on a consideration of the materials on record as well as the pleas raised by the parties came to the conclusion to the effect that "it is clear that her life was altogether miserable by cruelty of conduct of tae defendant. Evidently she was assaulted time and again and their relationship was not at all happy." The lower appellate Court further found that the materials on record and other circumstances clearly proved that the plaintiff wife has been living in the house of her brother for more than two years prior to the institution of the suit and no maintenance was given by the husband to the wife during this period. On these findings the lower appellate Court reversed the judgments and. decrees of the trial Court. It is true that specific issues concerning cruelty of conduct by the husband towards the wife as well as of non‑payment of maintenance for a period of two years was not specifically raised. Yet it is obvious that evidences were given by both sides relating to such matters and arguments were heard and considered on these aspects of the', case. It has been rightly pointed out that the husband was not in any way prejudiced because of the absence of the specific issues in this regard. In that view of the matter, I am inclined to hold that the trial is not liable to be set aside only because specific issues were not framed in this regard. This view of mine finds adequate support in the case of Province of East Pakistan v. Nawab Khawaja Habibullah Bahadur (18 D L R 727) Sattar, J. with whom S. Ahmad, J. concurred, while considering the plea of this nature observed as follows: ‑

"We are of the view that, as the parties adduced evidence on this point and it has not been shown to us that the appellant was in any way prejudiced on account of the above facts, the finding of the Court below in this regard cannot be set aside only on those grounds."

Similar point came up before their Lordships of the Judicial Committee of the Privy Council as early as in 1870. Their Lordships in the case of Mst. Mitna v. Syed Fuzl Rub, and others (M I A 573), overruled the contention and observed that the High Court acted rightly in repelling arguments relating to the issues on the ground that the parties have perfectly understood the issues and the matter was fought out on evidence and that there was no fatal mistrial of the case which vitiated the proceeding and render a retrial necessary. Non‑framing of proper issues was, however, deplored by their Lordships of the Privy Council. Similar view is also taken in the West Pakistan High Court, Lahore in the case of Sardaran and others v. The Municipality Lyallpur (P L D 1961 Lah. 35). In view of the above I am of opinion that the non‑framing of specific issues by itself cannot be a ground for asking a fresh trial in the suit, as it has been shown that the parties have not been prejudiced by such non framing of the issues. Apart from that it will be seen that no specific ground has been taken in the memorandum of appeals filed in this Court to this effect nor any objection on this ground was taken by the appellants before the Court of appeal below. In that view of the matter, the appellant cannot succeed on this point. Apart from that issue No. 1 as framed by the trial Court, in my opinion, broadly covers these pleas of cruelty and maintenance though the same were not specifically mentioned.

Mr. U. K. Roy, the learned Advocate for the appellant next contended that the Court of appeal below erred in law in holding contrary to the evidence on record that the life of the wife Feroza Khatoon was miserable by cruelty of conduct of the defendant and that she was assaulted time and again and their relationship was not at all happy. Mr. Roy has argued that there was no evidence on record to hold that the wife Feroza Khatoon was treated by her husband with cruelty and that her life was miserable by cruelty of conduct. In support of his argument, the learned Advocate for the appellant submitted that the brother of the wife who is P. W. 2 has stated that "sometime she was well behaved sometime misbehaved." From this the learned Advocate says that the husband's behaviour was sometimes sympathetic towards his wife and sometime it was not and as such no conduct of cruelty by the husband was established in the evidence. Apart from this the witnesses for the defendant husband have tried to show that the husband and wife lived happily and the husband never ill‑treated her. It is to be noticed that the husband was a deaf and dumb person and as such could not and in fact did not give evidence in this case to show as to how their conjugal life was. The wife has deposed as P. W. 1 in this case. She has only stated in examination‑in‑chief as follows: ‑

"I did not lead a happy and conjugal life and behaved with him as husband and wife. The defendant is deaf and dumb could not distinguish what is right or wrong. He assaulted me and behaved with me like a bull. I am living with my mother since 6/7 years. He did not take any information nor maintained me. I was driven out by the defendant."

In cross‑examination, however, she gave further details about the behaviour of her husband towards her. On being challenged in cross‑examination she stated as follows: ‑

"I cannot say in which year I was beaten for the 1st time. It was at night. Zaher and Raham Ali rescued me. I was beaten with stick‑in my entire body. It was 10/ 12 at night. Rahim Ali came from his brother‑in‑law Dillar Ali's house. Zaher came from his house, he lives in the same house of mine and my cousin. . . I cannot say in which year I was beaten at night for the last time. It was at mid‑night Masoon Ali and 3/4 others came and rescued me. Zohar Ali saw my beating at day time at mid‑day I cannot say in which but I was beaten in different times. I was beaten outside of the hut. He kicked me. I cannot say in which year and month, I came to my brother's house. I alone went there at night. The defendant, his brother and mother beat me, kicked me, gave blow. Many persons were present there."

On this evidence of the plaintiff‑wife, the lower appellant Court observed that the plaintiff clearly gave out her mind before the Court and he had no reason to hold that she has given out anything other than the truth. The lower appellate Court, in my opinion, has rightly concluded that the evidence as given in cross‑examination in reply to questions asked to her with regard to the assaults made on her is obviously spontaneous and can hardly be rejected. From this evidence it is clearly established that the plaintiff wife was treated with cruelty and her life was made miserable by such conduct by her husband. The finding of the Court of appeal below in this regard is clearly sustainable by the evidence on record. The contention of the learned Advocate for the appellant on this point has, therefore, no substance.

Mr. Roy has next contended that an isolated slap or a single blow by the husband to her wife does not constitute cruelty of conduct within the meaning of section 2 (viii) (a) of the Dissolution of the Muslim Marriages Act, 1.939. He has relied on a decision of the House of Lords in the case of Jamieson v. Jamieson ((1952) 1 A E R 875) and has submitted that the word "Cruelty" in the context of matrimonial matters has a specialised meaning. Section 2 (viii) (a) of the Dissolution of Muslim Marriages Act, 1939 which is a ground for Muslim wife to claim dissolution of her marriage runs as follows: ‑

"Habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill‑treatment or . . . . "

The section makes it clear that the conduct on the part of the husband, which renders her life miserable is sufficient to attract this provision of the law and it is not necessary that the treatment has to be accompanied by some assaults on her. An isolated slap or a trivial blow by a loving husband may not come within the mischief of this subsection, provided there are adequate materials to interpret the same in a different way‑. The entire bundle of circumstances and the back ground of such occurrence as well as the effect on the life and the physical and mental well being of the wife has to be considered in arriving at a finding whether the wife's‑ life was rendered miserable thereby or not. From this stand point it cannot be said that the finding of the Court of appeal below is erroneous. The evidence of the wife in this case if believed and I have not found any sufficient reason why the same should be disbelieved then that establishes a case of gross cruelty which clearly entitles the wife to a dissolution of the marriage in terms of section 2 (viii) (a) of this Act. The above view that I have taken does not go counter to the definition of cruelty as given by the law lords in the case cited above though the words used in the Matrimonial Case Act, 1937 and the Divorce (Scotland) Act 1938 are different than those under consideration in the instant case.

Mr. Roy has next cited Verse 34, Sura 4 from the Holy Qur'an and has submitted that the Holy Qur'an has even permitted leading of woman. The Verse 34, Sura 4 is as follows:‑

This Verse has been translated by Moulana Abdullah Yusuf Ali in Vol. 1, page 190: -

Men are the protectors

And maintainers of woman,

Because God has given

The one more (strength)

Than the other, and because

They support them

From their means.

Therefore the righteous women

Are devoutly obedient, and guard

In (the husband's) absence

What God would have them guard.

As to those women

On whose part ye fear

Disloyalty and ill‑conduct,

Admonish them (first),

(Next), refuse to share their beds,

(And last) beat them (lightly);'

But if they return to obedience,

Seek not against them

Means (of annoyance);

For God is Most High,

Great (above you all).

It is obvious that this Surah of the Holy Qur'an speaks of slight beating but that is spoken of in a case of an apprehension of disloyalty and ill‑conduct (desertion) where the fault is entirely of heirs and all previous attempts to dissuade her from following the evil path has failed. But it is not the case here and the reference to this Surah is entirely misconceived. In that view of the matter, I am of opinion, that this Verse of the Holy Qur'an does not in any way help Mr. Roy. The point, therefore, raised by R. Roy in this regard is bound to fail.

Mr. Roy, the learned Advocate for the appellant, then contended that the view taken by the lower appellate Court with regard to non‑payment of maintenance is clearly erroneous and should be set aside. The lower appellate Court with regard to the wife's plea of non‑payment of maintenance has observed as follows: ‑

"Considering the materials on record and other circumstances I have reason to hold that the plaintiff has been living in the house of her brother for more than 2 years prior to the institu tion of the suit and it is nobody's case that any maintenance was given to the plaintiff during this period. It is well settled in 8 D L R 51 that in order to succeed in a suit for dissolu tion of marriage all that a woman is required to do is to establish that for two years immediately proceeding the suit her husband has not provided for her maintenance and the courts have not to go into the question whether the woman herself had contributed towards the failure of her husband to provide maintenance for her or to render conjugal right to him is also no ground for refusing her claim for dissolu tion. So, I hold that non‑payment of maintenance for more than 2 years by the defendant husband is a sufficient ground which entitles the plaintiff wife to have dissolution of marriage."

A Division Bench of the Lahore High Court in the case of Mst. Aishan Bibi v. Sain (10 D L R Lah. 7), in my opinion correctly stated the law on this point.

His Lordship Mr. Justice Md. Munir, Chief Justice with whom Mr. Justice Md. Jan concurred, observed as follows: ‑

"Now it seems to me to be clear not only from the history but also from the terms of the provisions of Act VIII of 1939 that this Act, while it codifies Muslim Law on certain points, is only supplementary to certain other rules of that law, the validity of which it assumes and recognises. In the first place, the Act applies only to Muslims and was intended to consolidate and clarify the provisions of Muslim Law relating to suits for dissolution of marriage by women married under the Muslim Law."

Again his Lordship observed:‑

"On a plain interpretation of the Act, therefore, I see no difficulty in holding, and such finding would be consistent with all well accepted principles that if by reason of the wife's conduct the husband was under no obligation to pay her maintenance, the former cannot make the alleged non‑payment a ground for dissolution of her marriage under the Act."

This view has been respectfully concurred to and followed by this Court in the case of Nuruddin Ahmad v. Masuda Khanam (9 D L R. 8) Mr. Justice Hamoodur Rahman with whom Amin Ahmad, A. C. J. concurred observed as follows: ‑

"As observed by his Lordship, even apart from the provisions of the Muhammadan Law as they stood prior to the passing of Dissolution of Muslim Marriages Act, 1939, under the language of the said Act itself, a neglect or failure on the part of the husband to provide maintenance has to be established before the wife can expect to succeed in a suit for dissolution of her marriage on this ground. A neglect or a failure to do something naturally connotes that there is a duty cost upon the person to do that thing which he has failed or neglected to do. This automatically leads us to the enquiry us to what that duty is. The Dissolution of Muslim Marriages Act, 1939, does not prescribe what that duty is, and as such the only source from which the extent and the nature of the said duty can be ascertained must necessarily be the Muhammadan Law on the subject, which being the personal law governing the relationship of Muslims in this country, is the only law to which recourse can be had for this purpose. From this point of view also, the above words of the statute by themselves attract the previous Muhammadan Law and it cannot, therefore, be said that the non‑payment simpliciter constitutes a failure or neglect within the meaning of the provisions of clause (ii) of section 2 of the Dissolution of Muslim Marriages Act, 1939."

From the above it is obvious that non‑payment of mainten ance by itself is no ground for founding an action for dissolution of marriage under the Muslim Law. In a case where the wife voluntarily runs away from her husband's house without sufficient justification and despite the husband's request to return and live with him she disobeys him and declines to live with him then such a wife cannot be entitled to bring a suit for dissolution of marriage on the ground of want of maintenance for more than two years. It is obvious, therefore, that the proposition of law laid down by the learned Subordinate Judge does not appear to be correctly stated. Fact; however, remains that the case of the wife Firoza Khatun in the present appeal is that she was forced to leave her husband's house five years before the filing of the suit due to his ill‑treatment as well as physical and mental torture and has been living with her brothers and sisters since then and her husband did not have any information of her nor did he give her maintenance. The husband's story that she has been living in her brother's house for nearly two years only and that people from her husband's side went to bring her back at the time of the marriage of the younger brother of the husband was disbelieved by the lower appellate Court. It is not the case of any of the parties that the maintenance was given to the wife during the period of her stay in her brother's house. The lower appellate Court disbelieved the husband's story that an attempt was made once to bring her back to the husband's house which was refused by her. The finding of fact on this point by the lower appellate Court is clearly sustainable. The evidence of the defence witnesses on this point does not inspire confidence and the lower appellate Court is right in holding that she has been living in the house of her brother for more than 2 years prior to the institution of the suit and no maintenance was given to her during this time. The defendant husband has examined three witnesses to prove his case D. W. I is the younger brother of the husband. He has stated in his evidence that in Aswin 1372 B. S. They sent their uncle Manjar Ali to bring her back to attend his marriage D. W. 1 stated that in Aswin, 1371 B/S. he also went to bring her back. But it is curious to notice that nobody saw either him or his uncle to go to bring her back. He admitted that nobody was present at that time when the wife told him that she will not go. D. Ws. 2 and 3 have also tried to support the husband's case by saying that they also went to bring her back D. W. 2 is uncle of the husband, D. W. 3 is also another uncle of the husband. It is be noticed, however, that no evidence has been given about husband's attempt in going to the house of the wife himself and in trying to bring her back. The evidence given on behalf of the defendant attempts to show that an attempt to bring her back was made during the period 2J years before the filling of the suit. The case of the husband is that the wife was prevented from coming to the husband's place by the near relations of the wife. Another reason given on behalf of the defendant for her not coming is that as three children of her died in her husband's house, as such, the wife's mother and brother did not allow her to go to her husbands house. See the evidence of D. W. 2 this will show that according to the husband a refusal on the part of the wife does not establish a case of disobedience on her part. Even if this case as made out by the husband's side is accepted even then it will show that there was no justification on the part of the husband in not providing her with normal maintenance as she was entitled to under the Muslim Law. It is not a case of refusal on the part of the wife to stay with the husband and to perform her lawful obligations under the marriage contract but is a case where she was prevented from doing so due to the obstacle and hindrance by her brothers and sisters. Moreover, the' Court of appeal below found that he F life was rendered miserable by the cruelty of conduct on the part of the husband. In that view of the matter, I am inclined to hold that nothing has been proved on behalf of the husband to show that she was disentitled by her conduct to receive her normal and ordinary maintenance for a period of more than two years during the time she was staying with her brothers and sisters. On this ground also the wife is entitled to get a decree for dissolution of her marriage.

These are the only points raised in this case by the learned Advocate for the appellant and as I have already found them to be without any substance they are, therefore, rejected.

The result, therefore, is that these appeals are dismissed with costs.

The connected Rules Nos. 1151(s) and 1152 (s) of 1967 are discharged without any order as to costs.

Leave under clause 15 of the Letters Patents prayed for is refused.

A. E.

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