Decided on 24th June 1970
In the High Court of Kerala
S.A No. 1143 of 1967
Citations: AIR 1971 Ker 261
Bench: Hon’ble Justice V.R. Krishna Iyer.
Amicus Curiae: M.A Manhu.
Counsel for Petitioner: K. Chandrasekhara, T. Chandrasekhara Menon, C. Sankara Menon, K. Vijayan.
Counsel for Respondent: N.N Venkitachalam.
Background:
Earlier the right to divorce in Muslim marriages was only vested in men. There was no recourse for a Muslim woman to seek divorce except by converting to another religion to annul their marriage. Alarmed by this trend, the Ulemas coaxed the British government to pass the Dissolution of Muslim Marriage Act, 1939. This act laid down nine grounds by which a Muslim woman could seek divorce.
Introduction:
The question of divorce in Muslim law and how to apply it correctly has been time and again reiterated in courts. The right of a Muslim woman for dissolution of marriage has been further upheld in this judgement. Justice Krishna Iyer through this judgement has pronounced that the right to divorce is not merely a right of men in Muslim Law. The wife is equally entitled to initiate such dissolution regardless if she has violated her conjugal duties.
Constitution and statutory provisions discussed: Section 2 of Dissolution of Muslim Marriages Act, 1939 and Sub-section (ii), (vii) and (ix) of Section 2.
Facts:
Sowramma, a Hanafi girl, aged 15 was married to Yusuf Rowthar who was twice her age in 1962. Sowramma had attained puberty before her marriage and soon after their wedding was residing with her husband in their conjugal home. The immediate next day the husband had gone off to Coimbatore where he ran a radio dealer’s business. The plaintiff stayed in her conjugal home for one month after which she returned back to her parents. The reason for such return was blamed on the husband. The separation lasted for a span of two years during which the defendant failed to maintain his wife. The reason for this was that the defendant was keen to restore their relationship but the plaintiff refused to return to her conjugal home. After which an action of dissolution of marriage was instituted by the wife. The trial court dismissed the suit but the Subordinate Judge’s court granted a decree for the dissolution of marriage. The husband, aggrieved by the decision had approached the court to challenge the validity of the decree of the lower appellate court.
Issues: Can the mere fact of not maintaining the wife for 2 years be a valid ground to entitle a wife for dissolution of marriage?
Arguments:
Arguments put forth by petitioner:
The petitioners argued that the wife leaving the matrimonial house wrongfully of her own accord can’t claim dissolution for the mere failure of the husband to maintain such wife for a period of two years.
Arguments put forth by respondent:
The respondents took the recourse of Section 2 of the Dissolution of Muslim Marriages Act, Act 8 of 1939. It pressed upon the sub-sections (ii), (vii) and (ix) for grounds of dissolution. The respondents argued that the plaintiff was not 15 years old at the time of her marriage under sub-section (vii). It also argued that the husband failed to provide maintenance to the wife for a period of 2 years under sub-section (ii) of Section 2.
Observation of the court:
Pertaining to sub-section (vii) as a valid ground for dissolution the court stated that Clause (vii) vests in the woman, who has been given in marriage by her father or other guardian before she attains the age of 15 years and she has the right to repudiate such marriage before attaining the age of 18 provided that the marriage has not been consummated. In the present case the court held that as there is no evidence to prove that the plaintiff was not 15 at the time of her marriage and it has been established that marriage was consummated, sufficient case on this ground can’t be made out.
The court denied the plaintiff’s claim under Section 2 (ix) as invalid and supererogatory. It was a statutory preservation of prior Islamic rights. The question arose in considering Section 2 (ii) a valid ground for the present case.
Justice Krishna Iyer J while coming to the conclusion of this question resorted to various Islamic Law and texts for the interpretation of the term “failed to maintain wife”. With reference to Triple Talaq the court stated that ‘the view that the Muslim husband enjoys an arbitrary, unilateral power to inflict instant divorce does not accord with Islamic injunctions. The statement that the wife can buy a divorce only with the consent of or as delegated by the husband is also not wholly correct’.
With reference to a wife initiating divorce (known as ‘Khula’) the court observed that under Islamic law and Quran too there were provisions for it. The Prophet in support of this step said “if a woman be prejudiced by a marriage, let it be broken off”.
The court in this case relied on the judgement of Tyabji, C.J in the case of Noor Bibi vs Pir Bux and found it concurrent with the Islamic Texts and ethos of the Muslim Community. It served as a proficient case to interpret the provisions of the Dissolution of Muslim Marriages Act of 1939. The argument in the Sindh ruling states ‘In the Muslim law of dissolutions, the failure to maintain when it has continued for a prolonged period in such circumstances, is regarded as an instance where a cessation or suspension of the marriage had occurred. It will be seen therefore that the wife’s disobedience or refusal to live with her husband does not affect the principle on which the dissolution is allowed.”
It was held that even though the wife may have contributed towards the failure of the maintenance by her husband, the wife is entitled to a decree for the dissolution of her marriage, provided that the husband fails to maintain her for a period of two years.
The court holding the above ruling upheld the plaintiff’s claim on the ground of Section 2 (ii) and entitled the respondent to divorce.
Judgement:
The court dismissed the appeal and directed the parties to bear their respective litigation costs. It held that failure to provide maintenance to wife is ground for dissolution of marriage.
Conclusion:
This case bears a significant importance as Justice Iyer in his concluding argument emphasized that only when equal rights are enjoyed by both spouses be it in their marital life or through divorce can the social imbalances between the sexes be removed. The practice of instant talaq has to be somewhat matched with the practice of Khula under judicial supervision to bridge the gap between both the sexes in exercising this remedy without biasness. The judgement in this case reiterates the same stance and is hence pivotal.
References:
https://indiankanoon.org/doc/1322686/
