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Civil Appeal No. 48 of 1956, decided on 9th. May 1961.

Dissolution of Muslim Marriages Act (VIII of 1939)----

S. 2 (ii)‑Wife deliberately refusing to return to husband's house‑ Husband not bound to maintain her separately‑No ground for divorce.

Where there is no reliable evidence to establish any default on the part of the husband and it was the wife who deliberately refused to return to her husband's house, the husband was under no duty to provide ‑for her maintenance in her parents house and therefore it was futile to argue "that the husband had neglected or had failed to provide for her maintenance" or "that the husband has failed to perform without reasonable cause his material obligations for a period of three years".

Mst., Aishan Bibi v. Sain P L D 1952 Lah. 460 ref.

Muhammad Younas for Appellant.

Karim Ullah for Respondent.

Date of hearing : 9th May 1961.

Mst. Sherinzadgi's suit for dissolution for her marriage was decreed by the trial Court against her husband Gul Muhammad, but on appeal the District Judge dismissed She suit. She has now come up to this Court on a further appeal.

2. It is common ground between the parties that the wife had been living in her parent's house for more than three years prior to the institution of the suit, but there is sharp disagreement between them as to whether it was the wife who had run away from the hasband's residence or it was the husband who had forcibly turned her out. The evidence produced by the wife falls for short of the standard required for the proof of the allegation of ill‑treatment. On the other hand the husband has produced sufficient evidence to rebut his wife's allegations and to prove that his wife had gone to the house of her parents on the pretext of attending a marriage party, and that thereafter she refused to return in spite of his repeated request in the shape of deputations sent on several occasions. I agree with the finding of the Appellate Court that the husband was not to blame, and that it was the intransigence of the wife and her parents which caused their separation for more than three years.

3. The appellant's counsel, however, contends that even if the separation was the result of the conduct of the wife without any blame attaching to the husband, she was entitled to the dis solution of her marriage under clause (ii) of section 2 of the Dis solution of Muslim Marriages Act, 1939, for, as he put it, the husband was bound to provide for the maintenance of his wife in her parent's house. For this proposition he relies on some authorities, which are obviously obsolete, having been overruled by some recent decisions. The most authoritative decision is the case of Mst. Aishan Bibi plaintiff‑appellant v. Sain defendant respondent (P L D 1952 Lah. 460). In this case his Lordship Muhammad Munir, C. J. was pleased to observe as follows :‑

"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. The position that the Act it and was intended to be a complete codification of the Muslim Law of the grounds on which dissolution may be obtained, is incorrect."

4. In the case under appeal, as already pointed out, there is no reliable evidence to establish any default on the part of the husband. Since it was the wife who was deliberately refusing to return to her husband's house, the husband was under no duty to provide for her maintenance in her parent's house and therefore it is futile to argue "that the husband has neglected or has failed to provide for her maintenance or that the husband has failed to perform without reasonable cause his marital obligations for a period of three years.

5. In the result, the finding of the Appellate Court is upheld, and the appeal is dismissed with costs.

K.M.A. Appeal dismissed.

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