INTRODUCTION :
The Dissolution of the Muslim Marriages Act provides that if the husband has neglected or failed to provide maintenance to his wife for two years then the woman shall be entitled to obtain a divorce from her husband, even if the failure to provide for her maintenance is due to poverty, failing health, loss of work, imprisonment or due to any other cause.
In this present case, the question before the court was whether the wife can claim divorce from her husband if he has failed to provide maintenance to her for 2 years. Justice Krishna Iyer by upholding the right of Muslim women for divorce, through this judgment has pronounced that the right to divorce is not only meant for men under Mohammedan law, the women are also equally entitled to initiate divorce even if they have violated any of their conjugal duties
SUMMARY OF FACTS :
Sowramma, a Hanafi girl was around 15 years when she got married to Yousuf Rowther in 1962, who was twice her age. Sowramma had attained puberty even before her marriage and soon after the wedding, the bridal pair moved on to the husband’s house. And the very next day Yousuf Rowther left for Coimbatore where he was running a radio dealer’s business.
After spending some months in the house of her husband she then went back to her parents, the reason for her return being blamed by each on the other. This separation lasted for over two years and during this period the husband failed to maintain the wife, the reason given by the husband was that he was willing to restore the relationship but Sowramma has refused to return to the conjugal home.
ISSUES :
Can the wife claim dissolution of marriage for the failure of the husband to maintain her for 2 years?
Under the Muslim Law on marriage, certain obligations are imposed on the parties and certain rights are vested in them. The rights and obligations arising out of marriage are reciprocal so that if either of the party fails to perform his/her duties, the spouse at fault shall no longer be entitled to the enjoyment of the rights vested in him/her. One of the rights of the wife is that she is entitled to maintenance from her husband while she is under obligation to look after the domestic comforts of the husband to make herself available to him. Hence, if the husband fails to provide maintenance, she can lawfully refuse to live with him
According to Islamic law, maintenance ordinarily means all those things which are necessary for the support of life, such as food, clothes, and lodging. It should be in accordance with the changing standard of society and in consonance with the status of the spouse.
The dissolution of the Muslim marriages Act provides that a woman married under the Muslim law shall be entitled to obtain divorce provided the husband has neglected or failed to provide for her maintenance for a period of 2 years. In Manak khan v. Mt. Mulkhan Bano, the court has held that the wife is entitled to a decree of divorce even if failure or neglect to maintain arises on account of his poverty, failing health, loss of work, imprisonment, or any other cause, provided wife’s conduct had not been such as to disentitle her from maintenance.
ARGUMENTS ADVANCED :
Petitioners argued that the wife leaving the matrimonial home with her own accord cannot claim divorce for the mere failure of the husband to maintain her for 2 years.
The respondents, with the help of sub-section (ii), (vii), and (ix) of section 2 which deals with grounds for dissolution under the Dissolution of Muslim Marriages Act (Act 8 of 1939), argued that the plaintiff was not 15 years old when she got married as provided under sub-section (vii) and they also argued that the husband has failed to provide maintenance to the wife for 2 years under sub-section (ii) of Section 2.
OBSERVATION OF THE COURT :
The court took a detailed consideration on section 2 (ii) of the Dissolution of the Muslim Marriages Act. The court while referring to the first “khula” case i.e wife initiating a divorce, observed that under Islamic law and Quran to there were provisions for it and the Prophet in support of this said that “if a woman is prejudiced by a marriage, let it be broken off”. From the earliest times, the 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”
Thereafter the court relied on the ruling of The Sind High Court, in Nur Bibi v. Pir Bux, which was in accordance with holy Islamic texts and the ethos of the Muslim community. where it was held that “even though the wife may have contributed towards the failure of 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 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. Therefore the court dismissed the appeal and directed the parties to bear their respective costs and held that “The Muslim women, under section 2 (ii) of the dissolution of Muslim Marriages Act was entitled to sue their husbands for non-maintenance of for 2 years, even if there is good cause to believe that such non-maintenance took place due to the conduct of the wife”.
CONCLUSION:
This case holds significant importance under Mohammedan law as Justice Krishna Iyer by referring to the statements of the Holy Quran and the learned judges, emphasized that only when equal rights are enjoyed by both spouses, the social imbalance between the sexes be removed. This judgment is very helpful in the context of the right of Muslim women to take divorce on the basis of failure in providing maintenance on the part of the husband.
References :
- https://indiankanoon.org/doc/1322686/.
- Manak Khana v. Mt. Malkhan Bano,( AIR 1941 Lah 167)
- Ashan Rashid “ Cruelty of Islamic Law on Divorce towards Unfortunate Wives: A Reality Check ” ( 2015 ), available here
- Eesha Shrotriya, “ Triple talk row: validity of judicial interference in personal laws”, available here
- Praveen Pratap Singh “Secularism vis-a-vis uniform civil code with reference to triple talaq”, available here
- Mir Meharjuddin “ Divorce under Islamic law” (1985) available here
- Ruthvi Soni,’ Yousuf router v. Sowremma’ (June 8, 2021) is available here
Author: Naveen Talawar,
student at Karnataka state law university's law school
