Case Based Assignment

FAMILY LAW
CASE BASED
ASSIGNMENT
A.YOUSUF RAWTHER VS. SOWRAMMA
SUBMITED TO: VIKRAM LATHWAL

SUBMITTED BY: VISHAL SINGH
REG. No.- 11615466
A.YOUSUF RAWTHER
VS.
SOWRAMMA
HIGH COURT OF KERALA
Second Appeal No. 1143 of 1967
DECIDED ON:24.06.1970
VERSUS
A.YOUSUF RAWHTER.. appellant
Vs.
SOWRAMMA... respondent
INTRODUCTION TO THE CASE
Decided on June-24-1970
Reported 1967
Judge V.R. KRISHNA IYE
Acts Dissolution of Muslim
Marriages Act, 1939 -
Section 2; Code of Civil
Procedure, 1908 (CPC) -
Section 35, Code of Civil
Procedure, 1908 (CPC) -
Order 41 Rule 33
Appeal no. 1143
Appellant A. Yousuf Rawther
Respondent Sowramma
Advocate from K. Chandreaskharan, T.
defendant Chandrasekhara Menon,
C. Sankara Menon and
K. Vijayan
Advocate from N. Venkitachalam
petitioner
Facts:
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 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
-- thanks to the objectional inhibition by the father of
the girl. The husband, finding the young wife
recalcitrant, moved the mosque committee, through
his brother (Ext. D2) but the effort failed and so they
reported that divorce was the only solution (Ext- D4).
Anyway, after preliminary skirmishes, in the shape of
lawyer notices, a litigation for dissolution of marriage
erupted. 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. His counsel, Shri
Chandrasekhara Menon, has highlighted a seminal
issue of Muslim law -- the right of a female wrongfully
leaving the matrimonial home to claim dissolution
through court for mere failure of the husband to
maintain the erring wife for 2 years.
ISSUES:
Failure or neglect to provide maintenance in order to
give rise to claim for dissolution must be without any
justification. Marriage or nikah under muslim law is
defined to be a civil contract for having its objective
the procreation and legalisation of children.
RELEVANCY OF LAW:
The case which is been shown up Is related to marriage
dissolution. Here the decisions of court and the books on
Islamic law frequently refer to the words and deeds of the
Prophet in support of this truly forward step. He said if a
woman be prejudiced by a marriage, let it be broken off. It is
true that Act 8 of 1939 observed his Lordship, crystallises a
portion of the but it is precisely for that reason that it must
be taken in conjunction with the whole of the Muslim law as
it stands. Under the Muslim law, it is the duty of the wife to
obey her husband and to live with him unless he refuses to
live with her or unless he makes it difficult for her to live with
him. A muslim woman lives ina a constant fear of being
divorced at the whim of her husband. In additionto triple
talaq the process of halala is derogatory to the dignity of
muslim women and hampers her right to life and personal
liberty and to live with human dignity. Their most
characteristic feature is the doing away with the guilt-
principle of the erstwhile German civil family law. According
to that principle a partner of a petition for divorce had to
prove that the other partner had in a culpable manner
violated marital duties. According to the principle which now
prevails in the German Democratic Republic the only valid
yard-stick for the dissolution of a marriage are its objective
conditions.
If a marriage--as formulated in the draft--has lost its
significance for the married partners, for the children and
thereby for society, if it has become merely an empty shell, it
must be dissolved, independently whether one of the
married partners or which of the two bears the blame for its
disintegration. In view of the most personal and variegated
relations within married life and the fact that conflicts which
lead to divorce, have frequently been simmering for years,
and might have their deepest roots in an ill-considered
marriage, it may be, as a result, hardly possible to declare
either of the spouses guilty for the disintegration of the
marital partnership. One of the most curious things about
divorce is the difference which has often existed between
law and custom. The easiest divorce laws by no means
always produce the greatest number of divorces . distinction
between law and custom is important, for while I favour a
somewhat lenient law on the subject, there are to my mind,
so long as the biparental family persists as the norm, strong
reasons why custom should be against divorce, except in
somewhat extreme cases. I take this view because I regard
marriage not primarily as a sexual partnership, but above all
as an undertaking to co-operate in the procreation and
rearing of children.
SUGGESTIONS:
It is important to remember that the judicial
dispensation shall not be read as a testing time for
pitching the status of one system of laws against the
other and if we are undertaking a fresh exercise, it shall
be to affirm that it is possible to reinterpret the law
within the core equitable principles in every Holy Book.
Courts cannot or shall not test the constitutional vires
of any Holy Book, be it Koran or Gita or Bible. We shall
fashion our understanding of these higher laws to the
needs of the time by appropriate interpretations that
shall serve the greater good. The regurgitation of
existing case law may have the benefit of examining
cross-currents on the subject in several countries and
help us consolidate the gains of reformative spirit
through an express legislation, the same way it was
done to consolidate and clarify the provisions of
Muslim law relating to suit for dissolution of marriage
by women through the Dissolution of Muslim
Marriages.

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FAMILY LAW

SUBMITED TO: VIKRAM LATHWAL

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