Kerala High Court
M.K.Seenath vs N.Abdul Hameed 49 Years on 1 January, 2004
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE ANTONY DOMINIC
&
THE HONOURABLE MR. JUSTICE P.D.RAJAN
TUESDAY,THE 21ST DAY OF JANUARY 2014/1ST MAGHA, 1935
Mat.Appeal.No. 104 of 2005 ( )
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AGAINST THE ORDER IN OP 341/2002 of FAMILY COURT,KOZHIKODE
DATED 01-01-2004
APPELLANT(S)/PETITIONER:
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M.K.SEENATH, 38 YEARS,
D/O. LATE HASSANKOYA, HASHIM NIVAS, MATHOTTAM
ARAKKINAR, BEYPORE AMSOM, NADUVATTOM DESOM
BEYPORE.
BY ADVS.SRI.T.H.ABDUL AZEEZ
SRI.T.B.HOOD
RESPONDENT(S)/RESPONDENT:
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N.ABDUL HAMEED 49 YEARS,
S/O. ABDULLA KOYA, NALAKATH HOUSE, NEAR METRO HOTEL
VELLAYIL, KOZHIKODE -32.
R, BY ADV. SRI.V.G.ARUN
THIS MATRIMONIAL APPEAL HAVING BEEN FINALLY HEARD ON 21-01-2014,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
ANTONY DOMINIC & P.D.RAJAN, JJ.
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Mat.A.No.104 of 2005
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Dated this the 21st day of January, 2014
JUDGMENT
Antony Dominic, J.
1.Appellant and the respondent are wife and husband. Their marriage was solemnized on 3.2.1985 in accordance with the customary rites. In the wedlock, three children were born. Though the husband was working abroad, he neglected the family. In such circumstances, the wife and children filed M.C.279/98 before the Family Court, Kozhikode claiming maintenance. By Ext.B1 order dated 20.2.1999, the Family Court declined the claim of the wife for maintenance on the ground that she was residing away from the husband without valid reasons and allowed the claim for maintenance in favour of the minor children. Subsequently, the wife filed OP.341/02 before the Family Court seeking dissolution of marriage on the ground that the husband has neglected to provide her maintenance for a period of two years. That OP of the wife was dismissed by the Family Court by the impugned judgment holding that since by Ext.B1 she has already been held disentitled to claim Mat.A.104/05 2 maintenance under section 125 of the Cr.PC for the reason that she was residing separately from the husband without any valid reason, she cannot invoke section 2(ii) of the Dissolution of Muslim Marriages Act, 1939. It is this judgment which is under challenge in this appeal.
2.We heard the counsel for the appellant and the counsel for the respondent and also considered their submissions.
3.Reading of the judgment shows that the only ground relied on by the Family Court for dismissing the OP filed by the wife for dissolution of her marriage with the respondent is that by Ext.B1 order in MC.279/98, it has already rejected the claim of the appellant for maintenance on the ground that she was residing away from the husband without any valid reason. The question is whether the residence of the wife away from the respondent without any valid reason, which is a ground provided under section 125 of the Cr.PC for declining the claim for maintenance by the wife, can be a ground to decline dissolution Mat.A.104/05 3 of marriage sought for by the wife relying on section 2(ii) of the Dissolution of Muslim Marriages Act. The answer to this question has to be in the negative and this issue has already been decided in favour of the wife by virtue of the judgment of the Division Bench of this Court in Veeran Sayvu Ravuthar v. Beevathumma [2002 (2) KLT 741], where, it has been held thus in paragraph 19:
"19. Thus, the consistent view taken by this Court is that "the construction of Clause (ii) of S. 2 is in consonance with the Islamic law on the subject..... There is therefore no justification in introducing the words "without reasonable cause" into Clause (ii). The Legislature in its wisdom by providing those words in clause (iv) has not thought it necessary to provide this restricting in Clause (ii). "Accordingly this Court held that a wife under such circumstances, even if she had contributed for not to maintain her or even if she was not entitled for maintenance, could have applied for dissolution of marriage under S. 2(ii) on the ground that the husband had neglected or failed to provide for her maintenance for a period of two years. When the consistent view followed by this Court in these three decisions, accepting the view taken by Tayabji, C.J., in Noorbibi's case, is so clear, there is no reason at all for reconsideration, taking into account the phraseology used in S. 2(ii) as compared to S. 2(iv).Mat.A.104/05 4
The excuse if any put forth by the husband in maintaining the wife is not at all a relevant consideration while considering the ground for dissolution of marriage by the wife under S. 2(ii) of the Act. So we are in respectful agreement with the view taken by this Court in the earlier decisions in Yousuf Rawthan, Aboobacker Haji and Moosa's cases."
4.In the light of the above legal principles which we fully endorse, OP filed by the wife should have been allowed by the Family Court. Therefore, we set aside the judgment of the Family Court, Kozhikode dismissing OP.341/02 filed by the appellant and order that there will be a decree dissolving the marriage between the appellant and the respondent, solemnized on 3.2.1985, under section 2(ii) of the Dissolution of Muslim Marriages Act, 1939 with effect from today. Appeal is allowed accordingly.
Sd/-
ANTONY DOMINIC, Judge.
Sd/-
P.D.RAJAN, Judge.
kkb.