Kerala High Court
K. Abdul Rahiman vs Panthapilackal Shereefa on 29 October, 2008
Bench: P.R.Raman, T.R.Ramachandran Nair
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Mat.Appeal.No. 93 of 2004()
1. K. ABDUL RAHIMAN, ERALICKAL HOUSE,
... Petitioner
Vs
1. PANTHAPILACKAL SHEREEFA,
... Respondent
For Petitioner :SRI.K.A.SALIL NARAYANAN
For Respondent :SRI.K.M.SATHYANATHA MENON
The Hon'ble MR. Justice P.R.RAMAN
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :29/10/2008
O R D E R
P.R. RAMAN &
T.R. RAMACHANDRAN NAIR, JJ.
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MAT. APPEAL NO. 93 OF 2004
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DATED THIS, THE 29TH DAY OF OCTOBER, 2008.
J U D G M E N T
Raman, J.
Appellant is the respondent in O.P.183/2003 on the file of the Family Court, Manjeri. The respondent herein, who is the wife, has filed the said original petition. The material averments are as follows: The parties got married in accordance with the Islamic rites and ceremonies in 1994. At the time of marriage she was given ornaments and cash. In the wedlock a female child was born. Soon thereafter, the appellant started ill-treating her demanding more money and ornaments and in November, 1997 he took her to her parental house and thereafter he did not turn up or maintain her. Though M.C. 693/1999 was filed for maintenance, maintenance was awarded only for the child and after 1997 the husband did not pay any maintenance and did not perform his marital obligations. The marital relationship that now exists between the parties is only namesake and no purpose will be served by keeping the same alive.
2. Though the court below has stated that the respondent (appellant herein) has not filed any counter statement, according to the counsel for the M.A. 93/2004 :2:
appellant, a counter statement was filed. The evidence in the case consists of the oral testimony of PW.1 and that of the respondent, namely, the husband, as RW.1. After analysing the evidence on record, the court below found that the husband cannot take recourse to the contention that he has failed to perform his marital obligation without any reasonable cause unlike a case falling under Section 2(iv) of the said Act. Drawing a distinction between Section 2(iv) and 2(ii) of the Act and placing reliance on the decision of this Court in Veeran Sayvu Ravuthar v. Beevathumma (2002 (2) KLT 741) wherein it was held that even if the wife is living separated without any valid reason, she is entitled to dissolution of marriage, if maintenance is not provided to her, the application for dissolution of marriage was allowed.
3. In this case, admittedly, the husband has no case that he has provided any maintenance to the wife. His only plea is that the non maintenance is for reasonable cause in that she herself is residing separately from the husband. Therefore, the short question that falls for consideration is as to whether the order passed by the court below and the interpretation placed on Section 2(ii) of the Act is correct, warranting any interference in this appeal.
4. We have heard the learned counsel appearing on either side. Though the learned counsel reiterated his submission and contended that the M.A. 93/2004 :3:
wife, without any reasonable cause, has been living separately from the husband and hence ground under Section 2(ii) is not available, we could not appreciate the said argument in the light of the decision of this Court in Veeran Sayvu Ravuthar's case (2002(2) KLT 741) that the restriction as contained in Section 2(iv) of the Dissolution of Muslim Marriage Act is conspicuously absent in Section 2(ii) of the Act. In other words, though a wife may not be entitled to get a divorce under Section 2(iv) unless it is further proved that the failure to perform the marital obligation is without any reason, it is not necessary to get a divorce under Section 2(ii), and the husband cannot take a plea of defence that the non maintenance is for any reasonable cause. In other words, whether any reasonable cause exists or not is irrelevant and it is sufficient the husband is not maintaining the wife, to attract Section 2(ii). In this background, we do not find any reason to interfere with the order passed by the court below.
Dismissed.
P.R. RAMAN, (JUDGE) T.R. RAMACHANDRAN NAIR, (JUDGE) knc/-