Case Summary: Ahmed Abdul Qadeer v. Raffat Banu (India)
Written by SAHR co-founder, Natasha Latiff.
- The parties to the suit were married in 1958. After the marriage, the husband lived in the house of his wife’s parents and left the house in July, 1971 on account of certain differences. The wife then filed a petition under S.488 of Code of Criminal Procedure (1898) for maintenance of herself and her two daughters, which was allowed to the extent of daughters only. The wife then instituted proceedings for dissolution of marriage on the ground that the husband failed to provide her maintenance for a period of two years. The husband opposed the suit.
- The trial Court dismissed the suit for dissolution of marriage. It held that because the wife was living away from the husband without any reasonable cause, she was not entitled to claim any maintenance from the husband. The husband cannot be said to have failed to maintain her. The case was appealed by the wife.
- The appeal was allowed, following the decision in A. Yousuf v Sowramma, that for the purpose of S. 2(ii) of the Act, the reasons for which the husband has failed to provide maintenance are immaterial, if the husband has failed to provide maintenance for a period of two years.
- The husband has now appealed before the High Court.
Legal Reasoning
- Whether ‘failed to provide maintenance’ under S. 2(ii) of the Dissolution of Muslim Marriages Act, 1939 is to be interpreted as “failed to provide maintenance without reasonable causes”.
Justice Jeevan Reddy in the present case observed “…A wife, who by her own act or conduct, dis-entitles herself for maintenance cannot yet be allowed to take advantage of her own conduct and claim dissolution. The words “failed to provide” do imply a duty to provide. If there is no such duty to provide, it cannot be said that the husband has failed to provide maintenance to his wife…The words “without reasonable cause” must be deemed to be implicit in clause (ii), and also the absence of these words therein cannot, in my opinion, make any difference…Section 2 shows that a right is given to a Muslim woman to obtain the dissolution of her marriage where her husband is guilty of one or the other things mentioned in the several clauses …In this scheme it would not be appropriate to introduce a ground which entitles the wife to divorce, even though the husband’s conduct is totally blameless and where the conduct of the wife herself is blame-worthy.”
Justice Reddy is of the opinion that the wife’s conduct is open to scrutiny i.e., when the wife dis-entitles herself for maintenance due to her own conduct, she cannot claim dissolution of marriage on the ground that the husband failed to provide for her.
The husband’s appeal was allowed.
Conclusion
Dismissing the appeal, the Court held:
(i) The payment of mehar by the husband on divorce is not sufficient to absolve him of the duty to pay maintenance to the wife.
(ii) The liability of the husband to pay maintenance to the wife extends beyond the iddat period if the wife does not have sufficient means to maintain herself.
(iii) Section 125 of the Code applies to all citizens irrespective of their religion
(iv) Section 125 overrides the personal law, if is any there conflict between the two.
(v) There is no conflict between the provisions of Section 125 and those of the Muslim Personal Law on the question of the Muslim husband’s obligation to provide maintenance for a divorced wife who is unable to maintain herself.
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