Case – A. Yousuf Rawther v. Sowramma, 1971
Fact – 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. The husband having taken another wife and the latter having wed again after dissolution was granted in appeal.
The plaintiff had attained puberty even before her marriage and soon after the wedding, the bridal pair moved on to the husband’s house. The very next day the defendant left for Coimbatore where he was running a radio dealer’s business. A month’s sojourn in the house of the husband, and then the girl went back to her parents, the reason for her return being blamed by each on the other.
This separation lasted for over two years during which span the defendant admittedly failed to maintain the wife, the ground alleged by the defendant being that he was willing and, indeed, anxious to keep her with him but she wrongfully refused to return to the conjugal home.
The trial court dismissed the suit but the Subordinate Judge’s Court granted a decree for dissolution of the marriage.
The aggrieved husband has come up to this court challenging the validity of the decree of the lower appellate court.
The concurrent findings are that the plaintiff was 15 years old, that she had attained puberty and the marriage had been consummated. Again, 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”.
Issue – Is she eligible for divorce only if she has not violated her conjugal duties? Or can she ask for it on mere failure of the husband to provide maintenance for her for two years, the wife’s delinquency being irrelevant?
Contentions and Judgement
- The claim of a Muslim wife to divorce is now provided for and canalized by the Dissolution of Muslim Marriages Act, Act 8 of 1939. Section 2 (ii) liberates a woman from her matrimonial bondage if her husband “has neglected or has failed to provide for her maintenance for a period of two years”.
- “Before the advent of Islam, neither the Jews nor the Arabs recognized the right of divorce for women: and it was the Holy Quran that, for the first time in the history of Arabia, gave this great privilege to women”.
- “Divorce is permissible in Islam only in cases of extreme emergency. When all efforts for effecting a reconciliation have failed, the parties may proceed toa dissolution of the marriage by ‘Talaq’ or by ‘Khola’. When the proposal of divorce proceeds from the
husband, it is called ‘Talaq’, and when it takes effect at the instance of the wife it is called ‘Kholaa’.”
- Islamic law’s serious realism on divorce, when regarded as the correct perspective, excludes blameworthy conduct as a factor and reads the failure to provide maintenance for two years as an index of irreconcilable breach, so that the mere fact of no maintenance for the statutory period entitles the wife to sue for dissolution.
- In AIR 1941 Lah 167, Abdul Rashid, J. stated: In Cl. (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.
- 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.
- 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.
- Having affirmed the decree under Section 2 (ii) of the Act, the applicability of Section 2 (ix) is, perhaps, supererogatory. I do not decide the plaintiff’s claim to Khulaa under Section 2 (ix) of the Act. Having succeeded on the ground set out in Section 2 (ii) of the Act the respondent is entitled to a divorce.
