The answer of the question is given by Justice Krishna Iyer while delivering his judgment in ‘A. Yousuf Rawther vs Sowramma: AIR 1971 Ker 261’ when he was serving as high court judge in ‘Kerala High Court’.
Yusuf v. sowarmma, 1970
The facts of the CAse
- Sowramma, a Hanafi girl, around 15, married in 1962 Yusuf Rowthan, nearly twice her age, but the husband’s home hardly found them together for more than a few days and after a long spell of living apart, an action for dissolution was instituted by the wife against the husband under ‘Dissolution of muslim marriage act, 1939’.
- The trial court dismissed the suit but the Subordinate Judge’s Court granted a decree for dissolution of the marriage. The aggrieved husband reached to hih court challenging the validity of the decree of the lower appellate court.
- The concurrent findings were that the plaintiff/respondent was 15 years old, that she had attained puberty and the marriage had been consummated. While both the courts have held that the defendant had failed to provide maintenance for the plaintiff for a period of two years, they have also recorded a crucial finding
“that it was through her own conduct that she led her husband ……………..to stop maintenance for a period of 2 years”.
The provisions of ‘Dissolution of Muslim marriage act, 1939’ used by the Plaintiff/respondent
The claim of a Muslim wife to divorce is provided for and canalised by the Dissolution of Muslim Marriages Act, Act 8 of 1939 (for short, referred to as the Act).
Section 2 is the charter of the wife and, in this case, the plaintiff has pressed into service Subsections (ii), that the husband has neglected or has failed to provide for her maintenance for a period of two years;
(vii) that she, having been given in marriage by her father or other guardian before she attained the age of fifteen years, repudiated the marriage before attaining the age of eighteen years
and (ix) on any other ground which is recognised as valid for the dissolution of marriages under Muslim law.
Section 2, Clause (vii)
Section 2, 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, the right to repudiate the marriage before attaining the age of 18 years, provided that the marriage has not been consummated.
On this ground, the high court approved the finding of lower court, according to which,
“as there is no evidence to show that the plaintiff was under the age of 15 years when her marriage was solemnised and as the probabilities establish that the marriage had been consummated, it is obvious that the second ground which the plaintiff relied upon for dissolution of her marriage with the defendant has not been made out”.
Section 2 (ii)
Section 2 (ii) liberates a woman from her matrimonial poundage if her husband “has neglected or has failed to provide for her maintenance for a period of two years”.
While looking for right interpretation of the words ‘failed to provide maintenace’, justice Krishna iyer speaking for the court, made interesting remarks-
“There has been considerable argument at the bar — and precedents have been piled up by each side — as to the meaning to be given to the expression ‘failed to provide for her maintenance’ and about the grounds recognised as valid for dissolution under Muslim law.
Since infallibility is not an attribute of the judiciary, the view has been ventured by Muslim jurists that the Indo-Anglian judicial exposition of the Islamic law of divorce has not exactly been just to the Holy Prophet or the Holy Book.
Marginal distortions are inevitable when the Judicial Committee in Downing Street has to interpret Manu and Muhammad of India and Arabia. The soul of a culture — law is largely the formalised and enforceable expression of a community’s cultural norms — cannot be fully understood by alien minds. 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. Indeed, a deeper study of the subject discloses a surprisingly rational, realistic and modern law of divorce and this is a relevant enquiry to apply Section 2 (ix) and to construe correctly Section 2 (ii) of the Act.”
Authorities on the wife’s neglecting conjugal duties
The court referred some authorities in this relation. Mulla, in his book on Mahomadan Law, commenting on the failure to maintain the wife as a ground for divorce under the Act, says:
“Failure to maintain the wife need not be wilful. Even if the failure to provide for her maintenance is due to poverty, failing health, loss of work, imprisonment or to any other cause, the wife would be entitled to divorce ………unless, it is submitted, her conduct has been such as to disentitle her to maintenance under the Mahomedan Law.
In 1942 it was held by the Chief Court of Sind that the Act was not intended to abrogate the general law applicable to Mahomedans, and ‘the husband cannot be said to have neglected or failed to provide maintenance for his wife unless under the general Mahomedan Law he was under an obligation to maintain her’. The wife’s suit for divorce was dismissed as it was found that she was neither faithful nor obedient to her husband. So also was the wife’s suit dismissed, where the wife, who lived separately, was not ready and willing to perform her part of marital duties.”
The Nagpur High Court read Section 2 (ii) of the Act to mean that where the wife voluntarily stayed away from her husband’s house despite the husband’s request to return to his house and live with him, there was no neglect or failure to maintain the wife merely because he did not send any money to her during this period and the wife was not entitled to claim divorce. Mudholkar, J. was of the view that the words “to provide for her maintenance” occurring in Clause (ii) would apply only when there was a duty to maintain under the general Mahomedan law.
The learned Judge explained the need to answer the question with reference to the Muslim law:
“Under the Muslim law, it is the duty of the wife to obey her husband and to live with him unless he refuses to live with her or unless he makes it difficult for her to live with him …………… When the law enjoins a duty on the husband to maintain his wife, it is obvious that the wife can only be maintained at the place where she ought properly to be ………… If she wants for no reason to be maintained elsewhere, she can clearly claim no maintenance from husband under the Mahomedan law.
Since her right to claim maintenance is limited to this extent by the Mahomedan law, it must necessarily follow that in Clause (ii) of Section 2 of Act 8 of 1939 the Legislature intended to refer only to this limited right and to no other ……………It would be against all canons of judicial interpretation to hold that a wife’s right of maintenance, in so far as Act 8 of 1939 is concerned, is different from that contained in the rest of the Mahomedan law”.
A Division Bench of the Rajasthan High Court (AIR 1956 Raj 102 at p. 103) agreed with the construction and observed:
“……………we are of opinion that the failure or neglect to provide maintenance in order to give rise to claim for dissolution, must be without any justification. For if there is justification, there cannot be said to be neglect. Neglect or failure implies non-performance of a duty. But if the husband is released from the duty on account of the conduct of the lady herself, the husband cannot be said to have neglected or failed to provide maintenance”.
In AIR 1941 Lah 167, Abdul Rashid, J. stated:
“Where the words of the statute are unambiguous, effect must be given to them whatever the consequences. It is laid down expressly in Clause (iv) of Section 2, that where the husband has failed to perform without reasonable cause his marital obligations for a period of three years the wife is entitled to a dissolution of her marriage.
In Clause (ii), however, the words ‘without reasonable cause’ do not occur. It must, therefore, be held that whatever the cause may be the wife is entitled to a decree for the dissolution of her marriage, if the husband fails to maintain her for a period of two years, even though the wife may have contributed towards the failure of the maintenance by her husband.”
This observation was extracted, with approval, in the Sind decision and the ancient texts, traditions and fatwas were adverted to for holding that the Indian Hanafis had all along allowed divorce for simple failure by the husband to maintain his wife.
The most compelling argument in the Sind ruling runs thus:
“The Muslim marriage differs from the Hindu and from most Christian marriages in that it is not a sacrament. This involves an essentially different attitude towards dissolutions. There is no merit in preserving intact the connection of marriage when the parties are not able and fail ‘to live within the limits of Allah’, that is to fulfil their mutual marital obligations, and there is no desecration involved in dissolving a marriage which has failed.
The entire emphasis is on making the marital union a reality, and when this is not possible, and the marriage becomes injurious to the parties, the Quran enjoins a dissolution.
The husband is given an almost unfettered power of divorce, the only restraints upon him being those imposed by the law relating to dower and by his own conscience. He has to remember the Prophet’s words: ‘Of all things permitted by the law, the worst is divorce.’ The Quran enjoins a husband either to render to his wife all her rights as a wife and to treat her with kindness in the approved manner, or to set her free by divorcing her, and enjoins him not to retain a wife to her injury (Cf. verses II, 229 and 231). Any suspension of the marriage is strongly condemned (Cf. e.g. Quran IV, 129).
A hadith on khula
The attitude of the Prophet is illustrated by the well-known instance of Jameela, the wife of Sabit Bin Kais, who hated her husband intensely although her husband was extremely fond of her.
According to the account given in Bukhari (Bu. 68:11) Jameela appeared before the Prophet and admitted that she had no complaint to make against Sabit either as regards his morals or as regards his religion. She pleaded, however, that she could not be wholeheartedly loyal to her husband, as a Muslim wife ought to be, because she hated him, and she did not desire to live disloyally (‘in Kufr’).
The Prophet asked her whether she was willing to return the garden which her husband had given to her, and on her agreeing to do so, the Prophet sent for Sabit, asked him to take back the garden, and to divorce Jameela.
From the earliest times Muslim wives have been held to be entitled to a dissolution when it was clearly shown that the parties could not live ‘within the limits of Allah’,
(1) instead of the marriage being a reality, a suspension of the marriage had in fact occurred, or
(2) when the continuance of the marriage involved injury to the wife.
The grounds upon which a dissolution can be claimed are based mainly on these two principles ……………
When a husband and a wife have been living apart, and the wife is not being maintained by the husband, a dissolution is not permitted as a punishment for the husband who had failed to fulfil one of the obligations of marriage, or allowed as a means of enforcing the wife’s rights to maintenance. 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.”
Is such freedom of divorce by wives fatal to marriage institution?
The court also considered this argument,
“One of the serious apprehensions judges have voiced, if the view accepted in AIR 1950 Sind 8 were to be adopted, is that the women may be tempted to claim divorce by their own delinquency and family ties may become tenuous and snap.
Such a fear is misplaced has been neatly expressed by Bertrand Russel in his “Marriage and Morals“.
“One of the most curious things about divorce is the difference which has often existed between law and custom. The easiest divorce laws by no means always produce the greatest number of divorces …………… I think this distinction between law and custom is important, for while I favour a somewhat lenient law on the subject, there are to my mind, so long as the biparental family persists as the norm, strong reasons why custom should be against divorce, except in somewhat extreme cases. I take this view because I regard marriage not primarily as a sexual partnership, but above all as an undertaking to co-operate in the procreation and rearing of children.”
Decision of the court on the issue
After referring above mentioned authorities, justice Krishna Iyer held that,
“For all these reasons, I hold that a muslim woman, under Section 2 (ii) of the Act, can sue for dissolution on the score that she has not as a fact been maintained even if there is good cause for it--the voice of the law echoing public policy is often that of the realist, not of the moralist.
The view I have accepted has one other great advantage in that the Muslim woman (like any other woman) comes back into her own when the Prophet’s words are fulfilled, when roughly equal rights are enjoyed by both spouses, when the talaq technique of instant divorce is matched somewhat by the Khulaa device of delayed dissolution operated under judicial supervision.
The social imbalance between the sexes will thus be removed and the inarticulate major premise of equal justice realised. Act 8 of 1939 does not abrogate the grounds already available to a woman and Section 2 (ix) is clearly a statutory preservation of prior Islamic rights.
Having succeeded on the ground set out in Section 2 (ii) of the Act the respondent is entitled to a divorce.
A. Yousuf Rawther vs Sowramma: AIR 1971 Ker 261