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Second Appeal No. 219 of 1959, decided on 31st July 1961.
S. 103‑Sufficient evidence on record‑High Court entitled to determine undisposed issue of fact‑[Md. Tozammal Hussain Talukdar v. Puni Agarwallini (1951) 3 D L R 298 and Abdul Matleb Biswas and others v. Matulla alias Matiar Rahman Molla and others (1955) 6 D L R 202 ref.].
O. XLI, r. 31‑Appel late Court not bound to dispose of judgment of trial Court in seriatim while setting it aside‑[Akhiladkia Molla v. Panchu Molla and others P L D 1957 Dacca 607 distinguished].
Wife refusing to go to husband's house without sufficient cause‑Not entitled to mainten ance.
S. 2 (ii)‑Non‑payment of maintenance simpliciter‑Does not constitute "neglect or failure"‑[Nurud Din Ahmed v. Masuda Khanum P L D 1957 Dacca 242 foll.]
A. K. M. Nurul Islam for Appellant.
Ahmad Sobhan for Respondent.
This appeal at the instance of the plaintiff is directed against the decision of the Subordinate Judge, Dinajpur reversing that of Munsif, Thakurgaon, in a suit for dissolution of the marriage.
2. Plaintiff Majida Khatun instituted the suit on 3‑6‑57, for dissolution of the marriage on the grounds of cruelty, non payment of maintenance for a period of two years and non performance of marital obligations for a period of three years. Plaintiff was married to defendant on the 28th Savan 1359 B.S. corresponding to 13‑8‑1952. Plaintiff's case is that defendant a man of bad morals, habitually ill‑treated plaintiff with cruelty and as a result she has been living in her father's house from Jaistha 1360 B.S. corresponding to May 1953; and that since her stay in her paternal house, defendant has not paid any maintenance money to her and has not performed the marital obliga tions.
3. Defence is total denial about cruel treatment of defen dant towards plaintiff and that he is a man of bad morals. Defence case is shortly this: --‑Plaintiff went to her father's house in Jaistha 1361 B. S. corresponding to middle of May, 1954, as her father fell ill. She did not return to the house of defendant although he made repeated attempts to bring her and on the other hand, a case under section 488 of the Criminal Procedure Code for maintenance was brought against defendant on 22‑9‑54, and during the pendency of that case, plaintiff's father brought another case under section 365 of Pakistan Penal Code against defendant on 14‑2‑1955 ; both the cases failed and plaintiff's father was directed to show cause why he would not be prosecuted under section 211 of the Pakistan Penal Code. The matter was compromised on 4‑10‑1955, and in terms of the compromise, plaintiff was sent to defendant's house and she lived with him till the end of Pous 1363 B. S. corresponding to middle of January 1957. She left defendant's house as ill‑feeling started between defendant and plaintiff's father over some money matter. It was further alleged that there was no ground for dissolution of the marriage as defendant performed marital obligations within the period of three years, and as defendant was not bound to maintain her during the period of her stay in her father's house although defendant repeatedly attempted to bring her.
4. The trial Court held that defendant was not a man of bad morals and that he never treated the plaintiff with cruelty. But the trial Court on the findings that plaintiff has been living in her paternal house from Jaistha 1360 B. S., that maintenance was not paid to her during this period and that marital obligations were not performed from Jaistha 1360 B. S. decreed the suit.
5. On appeal the learned Subordinate Judge held that defen dant performed marital obligations within the period of three years preceding the date of institution of the suit and that defen dant was not bound to give her maintenance as plaintiff withheld herself from the defendant without any justification. Accord ingly the decision of the trial Court was reversed and the suit was dismissed. Hence this appeal at the instance of the plaintiff.
6. Mr. A. K. M. Nurul Islam, the learned Advocate for appellant advanced the following points in support of the appeal: (1) The appellate Court below erred in law in holding that plaintiff's lawyer had no right to advance any argument against the finding of the trial Court that defendant did not treat plaintiff with cruelty on the ground that no cross‑objection was filed; (2) The judgment of the appellate Court below is not a proper judgment according to law as the finding of the trial Court that defendant did not treat plaintiff with cruelty was affirmed without discussion of evidence and without giving reasons ; (3). The judgment of the first appellate Court is not a proper judgment of reversal as the learned Subordinate Judge did not advert to the reasons given by the trial Court for dissolu tion of the marriage; (4) The Court below erred in law in finding without any basis that the wife was refractory; and (5) the lower appellate Court erred in law as it failed to appre ciate that the present case is not one of non‑maintenance simpli citer but a case of non‑maintenance added with cruelty and non performance of marital obligations.
7. The learned Munsif on discussion of the evidence held that defendant did not live an immoral life and that he did not treat the plaintiff with cruelty. No cross‑objection was filed against these findings because the suit was decreed. There is no dispute that although no cross‑objection was filed against these findings, respondent could challenge these findings, in the appeal. The learned Subordinate Judge also held that the Court had jurisdiction to look to the merits and demerits of these findings though no cross‑objection was filed. While upholding this view, the learned Subordinate Judge expressed the opinion that respondent's lawyer had no right to advance any argument against these findings as cross‑objection was not filed. For this observation, which is erroneous, appellant has not been in any way prejudiced, as it appears that the lower appellate Court looked to the merits and demerits of these findings and appellant's lawyer argued on these points. It is not the appellant's case that her lawyer was not allowed to argue against these findings. No such ground has been taken in the memorandum of appeal.
8. The trial Court discussed the evidence about allegations of b id morals made against the defendant and about his cruel conduct towards plaintiff, and came to the conclusion that defendant was not a man of bad morals and that he did not treat his wife with cruelty. The appellate Court held that from the evidence on record, the trial Court was justified in coming to these findings. Mr. Islam has contended that although a judgment of affirmation the appellate Court below should have discussed the evidence, given its reasons for the findings and that a mere reference to the evidence on record was not a compli ance with the provisions of law.
9. Mr Islam has contended that there was no discussion of the evidence of P. W. 3 by the trial Court or by the appellate Court although this witness stated that plaintiff had shown him marks of wounds on her person. Mr. Islam took me through the evidence of P. W. 3 and it appears this witness made the statement that plaintiff showed him marks of wounds on her person. It has been contended that as the evidence of this witness was not considered by the learned Subordinate Judge, the appeal should be sent back on remand to the appellare Court for coming to a finding regarding cruelty on consideration of his evidence. In support of this contention that the judgment of the appellate Court is not a proper judgment because of non‑consideration of evidence, reference has been made to the case of Bashir Ullah v. Mst. Sardar Begum (P L D 1954 Lah. 614). In that case it has been held that even if the Court of appeal professes to have examined the evidence but it does not appear from the judgment that it has done so, a mere statement that upon an examination of the evidence it agrees with the conclusion of the trial Judge would not convince the Court of second appeal that the evidence has been so appraised as to make it unnecessary for that Court to undertake a second appraisal. This case does not support the view that an appeal should be sent back on remand for non‑consi deration of some evidence by the first appellate Court.
10. For mere non‑discussion of the evidence of P. W. 3 in details, it would not be proper to send back the appeal on remand. In view of the provisions of section 103 of the Civil Procedure Code, this Court is entitled, if the evidence on record is sufficient, to determine any issue of fact necessary for the disposal of the appeal but which has not been determined by the lower appellate Court. This view finds support in the cases of Md. Tozammal Hussain Talukdar and others v. Puni Agar wallini and others ((1951) 3 D L R 298), and Abdul Matleb Biswas and others v. Matulla alias Matiar Rahman Molla and others ((1956) 6 D L R 202). In the case reported in 3 D L R 298, it was held by Akbar, J., as he then was, that in view of the provisions of section 103 of the Code of Civil Procedure the Court is entitled to determine the issue of fact which is necessary for the disposal of the case but which has not been determined by the lower appellate Court. In the case reported in 6 D L R 202, it has been laid down that the High Court has power under section 103 of the Code of Civil Procedure to come to a finding on the evidence on record and resort to power under this section can be had where the interest of the justice demands. In this case, the trial Court discussed the evidence of plaintiff Majida Khatun and of her father P. W. 2, and held that the allegation of cruelty was not established. P. W. 2 stated that he was shown marks of wounds by plaintiff, but he did not tell where these wounds were shown to him. There is nothing in his evidence to show that plaintiff told him that these wounds were due to beating by defendant. Plaintiff also did not make any statement that she showed marks of wounds to P. W. 3, Mobarak Ali. From his evidence it cannot be held that defen dant beat her and treated her with cruelty. The appellate Court below was justified in holding that defendant did not treat the plaintiff with cruelty.
11. The trial Court found that plaintiff had been living in her father's house from Jaistha 1360 B. S. that is, from middle of May 1953. From that, he came to the conclusion that defen dant failed to perform marital obligations for a period of three years and failed to pay maintenance for more than two years and that accordingly she was entitled to get the decree for dissolu tion of marriage.
12. The learned Subordinate Judge on the other hand relying on the admitted case of plaintiff that she was forcibly taken away by defendant on 1st Falgoon, 1361 B. S. corresponding to 13‑2‑1955, and that she lived with her husband up to the middle of Chaitra 1361 B. S. corresponding to last of March 1955, and that plaintiff kept her husband concealed under a mattress in the house of her husband's sister in Baisakh 1362 B. S. came to the conclusion that defendant performed marital obligations within the period of three years. Mr. Islam had contended that from these facts there should not have been the inference that marital obligations were performed as plaintiff stated that there was no cohabitation with defendant since Jaistha 1360 B. S. It was for the appellate Court to consider whether there would be co habitation or not when a grown up wife lived with her husband for more than a month and when she kept her husband concealed in the house of a relation of her husband on one occasion in 1362 B. S. The appellate Court on consideration of these facts has come to the conclusion that there was perform ance of the marital obligations. This finding of fact cannot be disturbed by this Court. The trial Court while holding that plaintiff has been living in her father's house from Jaistha 1360 B. S. totally overlooked the admitted facts that she lived with her husband from 13‑2‑1955, up to the end of March 1955, and that she met her husband in the house of a relation of her husband in Baisakh 1362 B. S.
13. A lower appellate Court is not bound to dispose seriatim of the reasons given by the trial Court, if it gives special reasons of its own for coming to an opposite conclusion. This view is supported by the decision in the case of Jatra Mohan Nandi v. Pitambar Mistri (A I R 1915 Cal. 99). The learned Advocate for the appellant has referred to the case of Akhiladkin Molla v. Panchu Molla and others (P L D 1957 Dacca 607) in which it has been laid down that although the lower appellate Court in reversing a judgment is not bound to deal seriatim with the reasonings of the trial Court or to notice each and every particular item of evidence relied upon by the trial Court if it has given different reasons of its own for coming to the conclusion, yet when the lower appellate Court has reversed the judgment of the trial Court on a material issue without consi deration of the facts and circumstances on which the judgment of the trial Court is based, the High Court, in second appeal, will interfere with the judgment of the appellate Court, even if the question involved is a question of fact. In that case the issue whether a certain patta was valid and the question of possession and dispossession were not at all considered by the first appellate Court and accordingly the appeal was sent back on remand for re‑hearing. But in the present case the issues on which the trial Court decreed the suit for dissolution of the marriage were considered by the first appellate Court.
14. Mr. Islam has also referred to the cases of A. H. Md. Ismail & Co. v. Sachidananda Bhattacharjee (40 C W N 769) and Baidya Nath Sein v. Kumud Chandra Paul and another (40 C W N 513). In the case reported in 40 C W N 769, it has been laid down that a finding of fact by the first appellate Court without consideration, of material facts and circumstances on which the trial Court based its decision is not binding in second appeal. In that case, the first appellate Court held that a Company was not insolvent at a particular time on the ground that no such plea was taken in the defence although the question was raised in the trial Court and evidence was adduced. It was held that the first appellate Court did not apply its mind to the facts and circumstances on which the trial Court relied and the case was sent back on remand. But in the instant case the first appellate Court considered the material facts and circumstances and came to a different conclusion on giving reasons.
15. In the case reported in 40 C W N 513, it has been laid down that the Court of appeal ought not to set aside the findings of fact of trial Judge unless the appellant convinces the Court that such finding is clearly wrong. But in the present case the appellate Court below was convinced that the findings of fact arrived at by the trial Court were wrong, and it has given the reasons for holding so.
16. It is the plaintiff's case that she was forcibly taken away by defendant on 1st Falgoon, 1361 B. S. corresponding to 13‑2‑1955, that she lived with her husband for a little more than a month and then she left her husband's house by the middle of Chaitra 1361 B. S. corresponding to the end of March 1955.
17. From these admitted facts the learned Subordinate Judge inferred that defendant made forcible attempts to take plaintiff to his house. The learned Subordinate Judge has made the following observation :‑
" .from the case made out by the plaintiff it appears that the defendant made forcible attempt to take away the plaintiff from her father's house and actually took away the plaintiff from her father's house."
It is admitted that plaintiff's father brought a case under section 365 of the Pakistan Penal Code against defendant, that case failed, that plaintiff's father was asked to show cause why he would not be prosecuted under section 211 of the Pakistan Penal Code and that the matter was ultimately compromised on 4‑10‑1955. In the trial Court it was contended on behalf of the defendant that after the compromise, plaintiff was sent back to her husband's house and that she lived with her husband till Pous 1363 B. S. corresponding to middle of December 1956. The trial Court held that it was for the defendant to prove that plaintiff lived with defendant up to that time and on consideration of the evidence of D. Ws 1 and 3, he concluded that defendant did not go to the house of plaintiff to take her. Mr. Islam has contended that the appellate Court did not at all refer to the evidence of D. W. 3 and that there was no basis for the finding that defendant attempted to take plaintiff to his house and that as such the finding that the plaintiff was refractory to defen dant was without basis. From the admitted case of the plaintiff that she was forcibly taken away in Falgoon 1361 B. S. and that she left her husband in Chaitra 1361 B. S. corresponding to end of March 1955, the learned Subordinate Judge held that there were attempts on the part of the husband to take the plaintiff to his house. In the circumstances the contention that there is no basis for the finding that plaintiff without justification withheld herself from the defendant, cannot be accepted.
18. A Muslim husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain her if she refused herself or is otherwise disobedient, unless refusal or disobedience is for non payment of dower. This view finds support in several authori ties on Muhammadan Law. In Baillie's Digest of Muhammadan Law, Second Edition, page 442, it has been stated as follows
"If, when called upon to remove to his house, she refuses to do so of right, that is, to obtain payment of her dower, she is entitled to maintenance ; but if she refuses to do so without right, as when her dower is paid, or deferred, or has been given to her husband, she has no claim to maintenance.
If a woman be a nashizah or rebellious, she has no right to maintenance until she returns to her husband's house. By this expression is to be understood a woman who goes out from her husband's house (munzil) and denies herself to him, in contradistinction to one who merely refuses to abide in her husband's apartment (beit), which is not necessary for the purpose of restraint. If, however, the house be her own property, and she forbids him from entering it, she is not entitled to maintenance unless she had asked him to remove her to his own house, or to hire a house for her. When she ceased to be a nashizah or rebellious, she is again entitled to maintenance.
19. In Ameer Ali's Muhammadan Law, Volume 11, Fifth Edition, 407, it has been observed as follows: --‑
"But the right of the wife to maintenance is subject to the condition that she is not refractory or does not refuse to live with her husband without lawful cause."
20. In the present case, it has been found by both the Courts below that defendant was not cruel to plaintiff. It has been held by the lower appellate Court that defendant's attempt to take her in his house failed. It follows that plaintiff has refused herself to return to her husband's house without sufficient cause. It has been rightly held that she is not entitled to maintenance.
21. Clause (ii) of section 2 of the Dissolution of Muslim Marriages Act (Act No. VIII of 1939), provides that a woman married under Muslim Law shall be entitled to obtain a decree for dissolution of her marriage on the ground that the husband has neglected or has failed to provide her for her maintenance for a period of two years. But non‑payment simpliciter of main tenance does not constitute a failure or neglect within the meaning of clause (ii) of section 2 of the Act. This view is supported by the case of Nuruddin Ahmed v. Masuda Khanam (P L D 1957 Dacca 242). The present case is one of non‑maintenance simpliciter as the allegations relating to cruelty and non‑performance of marital obligations have not been established.
22. There is no ground for interference with the decision of the learned Subordinate Judge.
23. In the result, the appeal is dismissed with costs. The judgment and decree of the learned Subordinate Judge are affirmed.
Leave under Clause 15 of the Letters Patent as asked for by Mr. A. K. M. Nurul Islam is refused.
S. B./A. H.
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