R.C.Deo Sharma, J. - (1.) THIS is a plaintiff's second appeal and arises in the following circumstances. The plaintiff-appellant Smt. Shaukat Jehan was married to the defendant respondent Zahid Ali in accordance with the Muslim Law applicable to the parties on 21-6-1969. She came to stay with her husband at Sitapur and on the very first day she came to know from the ladies that her husband was suffering from tuberculosis. The defendant was advised to have X-ray examination done. It was then confirmed that he was suffering from tuberculosis. The clothes and ornaments given in the dowry were also said to be in possession of the defendant-respondent. On 5-10-1971 she filed the suit giving rise to this appeal for dissolution of her marriage with the respondent on the ground that the respondent was on the date of the marriage as also on the date of the suit suffering from tuberculosis and this was injurious to her health and life and that the respondent had inspite of the demand failed to pay maintenance during the period of two years prior to the suit.
(2.) THE claim was resisted by the defendant-respondent on the ground that he did not suffer from tuberculosis and that the report if any obtained from the doctor was a manipulated one. He claimed to be a student of B.Sc. in the Aligarh Muslim University. According to him, the plaintiff's father wanted him to stay at his place as a Ghar Damad like his other sons-in-law. He denied that he had failed to maintain the plaintiff and contended that he had always been asking her to come to his house and also used to visit her place so much so that he had also filed a suit in the court of Munsif fur restitution of conjugal rights. The learned Munsif after a careful consideration of the entire oral and documentary evidence on record found that the defendant-respondent appeared to be suffering from tuberculosis or atleast he was genuinely suspected of being a patient of this disease, but in law this was net a valid ground for dissolution of marriage. He also found that the defendant-respondent never failed to maintain her, and on the contrary it was the plaintiff who either of her own or at the insistance of her father did not go to the defendant respondent's house to stay with him. It was also found as a fact that the defendant had been visiting the plaintiff's house. The defendant's contention that he had at times been paying necessary money even at the house of the plaintiff was also not disbelieved. The suit was accordingly dismissed. An appeal preferred by the plaintiff before the learned District Judge also met the same fate. Feeling aggrieved the plaintiff has preferred this second appeal and it has been contended that both the courts below having found as a fact that the defendant-respondent was suffering from tuberculosis it was a fit case in which a decree for dissolution of marriage should have been granted. Regarding the other ground, namely, of failing or neglecting to maintain her, it was contended that even though according to the finding of fact arrived at by the courts below the husband might not have neglected to maintain the wife but it had not been decided by the courts below as to whether the respondent had failed to provide maintenance to her for a period of two years prior to the filing of the suit. Learned counsel for the parties have been heard at some length. The concurrent findings of fact recorded by the courts bolow have not been seriously challenged and in fact it was contended that the finding of fact on the point of the defendant suffering from tuberculosis being in favour of the plaintiff should be accepted and a decree for dissolution of marriage should be passed on that basis. So far as the other plea regarding maintenance is concerned, it has also not been pressed and the only contention was that even though the husband might not have neglected to maintain her but has in any case failed to provide her maintenance.
(3.) TAKING the second point first, it will appear that there is a positive finding of fact supported by cogent reasons and which has not been challenged that the plaintiff never agreed to come and reside at the house of the defendant even though the husband visited the plaintiff's place several times and asked her to come and stay with him. In all probability, she had been avoiding to go to the defendant's house for the reason that she suspected the defendant to be suffering from tuberculosis or at the insistence of her father she decided to stay at her father's place till some arrangement to secure her future was made in order to meet the contingency of the possible death of the defendant due to tuberculosis. There are letters on record and admissions of the plaintiff herself when she appeared in the witness-box, indicating that her father desired the defendant's father to execute some doucment so that the defendants gets his appropriate share in the property and also assure by another document that in the event of the death of the defendant property would pass to the plaintiff. Thus the insistence was on making adequate provision as a security for the plaintiff's future. There is nothing to indicate that the defendant was avoiding to bring her to his house or to maintain her there. It has not been established that the plaintiff ever made a demand for payment of maintenance or that the same was refused by the defendant. Obviously therefore, the defendant neither neglected nor failed to provide her maintenance. On the contrary, there is evidence to show that at times when he visited her, he also used to pay some money to her. Main stress was laid by the appellant's learned counsel on the point that in view of the ailment of the defendant-respondent, a decree for dissolution should have been passed. He conceded that the Dissolution of Muslim Marriage Act, 1939, did not make a specific provision for dissolution of marriage in the event of the respondent suffering from tuberculosis. But his contention was that compelling a wife to live with a husband suffering from that disease should be treated as amounting to curelty within the meaning of clause (viii) of section 2 of the said Act. The only sub-clause applicable to the case was sub-clause (a) of clause (viii), It may be reproduced as below : "(viii) that the husband treats her with cruelty that is to say (a) habitually assaults her or makes her life miserable by cruelty of conduct even if such conduct does not amount to physical ill-treatment." ;