The husband is not providing maintenance to his wife because of her refusal to live with him. State whether the wife can claim a decree of dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939.

Question: The husband is not providing maintenance to his wife because of her refusal to live with him. State whether the wife can claim a decree of dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939. Refer to decided cases. [HJS 1998]

Find the question and answer of Muslim Law only on Legal Bites. [The husband is not providing maintenance to his wife because of her refusal to live with him. State whether the wife can claim a decree of dissolution of marriage under the Dissolution of Muslim Marriages Act, 1939.]

Answer

According to Section 2 of the Dissolution of Muslim Marriages Act, 1939, a woman married under Muslim law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds, namely:

(i) that the whereabouts of the husband have not been known for a period of four years;

(ii) that the husband has neglected or has filed to provide for her maintenance for a period of two years;

(iii) that the husband has been sentenced to imprisonment for a period of seven years or upwards;

(iv) that the husband has failed to perform, without reasonable cause, his marital obligations for a period of three years;

(v) that the husband was impotent at the time of the marriage and continues to be so;

(vi) that the husband has been insane for a period of two years or is suffering from leprosy or a virulent venereal disease;

(vii) that she, having been given in marriage by her father or other guardians before she attained the age of sixteen years, repudiated the marriage before attaining the age of eighteen years:

Provided that the marriage has not been consummated;

(viii) that the husband treats her with cruelty, that is to say,

(ix) on any other ground which is recognized as valid for the dissolution of marriages under Muslim Law,

It is a legal obligation of every husband to maintain his wife, and if he fails to do so, the wife may seek divorce on this ground. A husband may not maintain his wife either because he neglects her or because he has no means to provide for her maintenance. In both cases, the result would be the same. The husband's obligation to maintain his wife is subject to the wife's own performance of matrimonial obligations.

A wife, who by her own act or conduct, disentitles 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. Suppose a wife is of an immoral character, or she deliberately and against the wishes of her husband lives away from him without giving him her company which she is bound to, the husband cannot still be compelled to provide for her maintenance.

Therefore, if the wife lives separately without any reasonable excuse, she is not entitled to get a judicial divorce on the ground of the husband's failure to maintain her because her own conduct disentitles her from maintenance under Muslim law.

In Umat-ul-Hafiz v. Talib Hussain, AIR 1945 Lah. 56, the wife's suit for divorce was dismissed as it was found that she was living separately, and was not ready and willing to perform her part of marital duties.

In the case of Munnawarbai v. Sabir Mohammed,1970 M.P.L.J. Notes 23, the wife left the marital house and stayed away without any justifiable cause and then asked for dissolution of marriage on the ground that the husband was not maintaining her, it was held that the wife is not entitled to relief under section 2 (ii) of Dissolution of Marriage Act, 1939.

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