Introduction

• This is a landmark case of divorce under Muslim law.

Facts

• The plaintiff, aged 15 and already having reached puberty before her marriage, moved in with her husband after their wedding.
• However, the day after, the defendant left for Coimbatore, where he managed a radio dealership.
• After a month together, the girl returned to her parents' home, with both parties blaming each other for the separation.
• This separation endured for over two years, during which the defendant failed to provide maintenance, claiming the wife refused to return to him.
• Attempts through the mosque committee and legal notices to reconcile failed, so they found divorce as only option.
• Following initial skirmishes, in the form of legal notices from lawyers, a contentious litigation for divorce ensued.
• While the trial court dismissed the suit, the Subordinate Judge's Court granted a decree for dissolution of the marriage.
• The husband, dissatisfied, appealed the decision in the Kerala High Court.

Issue Involved

• Whether the wife can claim dissolution of marriage on the grounds of failure of maintenance by the husband for two years?

Observation

• The court extensively deliberated on Section 2 (ii) of the Dissolution of the Muslim Marriages Act, 1939.
  • In its assessment of the first "khula" case, where the wife initiates divorce, the court noted that Islamic law and the Quran provide provisions for such instances.
• The Prophet, in support of this, stated, "if a woman is prejudiced by a marriage, let it be broken off."
  • Throughout history, Muslim wives have been deemed entitled to dissolution when it becomes evident that the parties cannot abide by the dictates of Allah.
• Relying on the precedent set by the Sindh High Court in Nur Bibi v. Pir Bux (1949), which aligns with Islamic texts and the values of the Muslim community, the court affirmed 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."
• Based on the aforementioned ruling, the court upheld the wife's claim under Section 2(ii) and granted the right to divorce.
• The court emphasized that “Muslim women, under Section 2 (ii) of the Dissolution of Muslim Marriages Act, 1939 are entitled to sue their husbands for non-maintenance for 2 years, even if there is good cause to believe that such non-maintenance occurred due to the conduct of the wife”.

Conclusion

• Consequently, the court dismissed the appeal and ordered each party to bear their respective costs.