[1942] EACA 49

## APPELLATE CIVIL

## BEFORE THACKER, J. (with Chief Kathi as an assessor).

## SAYYED OMAR BIN AHMED SAGGAF, Appellant (Original Defendant) $\mathbf{1}$

## ASHA BINTI SAID, Respondent (Original Plaintiff) Civil Apeal No. 10 of 1942

Mohammedan Law—Dissolution of marriage—Maintenance in past not provided—No cause of action—Order nisi made absolute without defendant's being given opportunity to show cause.

The plaintiff in the lower Court sued for dissolution of marriage according to Mohammedan Law on the ground that her husband the defendant had not maintained her for nearly two years. In addition to ordering a dissolution of the marriage the Kathi ordered the defendant to provide maintenance. No evidence was taken from any witness, each party merely making several unsworn statements. The remaining facts sufficiently appear from the judgment.

*Held* $(17-10-42)$ .—(1) That in a civil cause evidence must be given to prove or disprove a case. It is not enough for mere statements to be made.

(2) That it is the negation of justice, having made an order nisi against a party for the Court to make such order absolute without giving that party an opportunity of showing cause why the order should not be made absolute.

(3) That the plaint did not disclose any cause of action according to Mohammedan Law. The Court cannot grant a dissolution of a marriage on the ground of failure to provide maintenance unless the inability of the husband to provide maintenance in the future is proved. Failure to provide maintenance in the past does not furnish according to<br>Mohammedan Law, a good cause of action.

(4) That where the plaintiff asks only for dissolution of marriage it is not competent for the Court to order the payment of past maintenance.

Bimoto binti Ali v. Dr. Chur Khan (1929) 12 L. R. K. 104 applied.

C. A. Patel for appellant. $\blacksquare$

The Respondent did not appear.

JUDGMENT.—The appellant appeals against a decree of dissolution of hismarriage with the respondent passed by the Kathi's Court at Lamu. The respondent in the lower Court sued for dissolution of marriage on the ground that the appellant had not maintained or clothed her for a past period of one year and ten months. It appears that no evidence whatever was taken in the case in the Court below, each party merely making several unsworn statements. This of course is improper. No witnesses were called on either side. There is a long but somewhat irrelevant judgment which in many respects is inconsistent with the record of the case, that is with a short record of what the two parties stated according to the Kathi. The judgment speaks of "administered oaths" but there is no mention of such in the remaining record, which shows that some kind of order nisi was made calling upon the appellant to provide the respondent with maintenance and clothing, etc., and that if he failed to do so within three days, the rule was to be made absolute, dissolving the marriage—no opportunity was given to the appellant to show whether or not he had complied with the order *nisi*. The Kathi merely says "His presence was unnecessary". This is of course the very negation of justice and is sufficient to upset the judgment given. There was also as I have remarked no evidence given by the respondent in

support of her claim; in fact no evidence was given by any person. It would appear from the case of Bimoto Binti Ali v. Dr. Chur Khan (1929) 12 L. R. K. 104 that two witnesses for a petitioner are necessary in this type of case. I am informed also by the Chief Kathi that the judgment of the Kathi is wrong in his opinion for the following reasons:-

(1) The plaint does not disclose any cause of action for dissolution of marriage.

The plaintiff in asking for dissolution of marriage should have stated in the plaint that her husband has no property (means) or work and is unable to maintain her for the present and for the future. The prayer in the plaint is for dissolution of marriage for want of past maintenance which is no ground for dissolution. There was no amended plaint before the Court.

(2) The Court cannot grant dissolution of marriage until the wife proves by evidence the insolvency of her husband and his inability to provide maintenance. In this case there is no such evidence nor does the defendant admit those necessary factors.

(3) The Kathi has ordered (1) defendant-appellant to provide maintenance and (2) dissolution of marriage, while the plaintiff's claim is only for dissolution of marriage, and puts the failure to provide maintenance in the past only as a ground for dissolution. See Minhai, Section 3, p. 387-8.

It is to be noted further that the Court below does not appear to have collected the proper fees, and that Sh. 10 more in fees have to be collected from the respondent as it was a divorce which she was claiming subject of course to whether she was admitted to sue in *forma pauperis*. The Sh. 20 paid would only cover the amount of maintenance, clothing and dowry, viz. Sh. 902/14. The whole case is unsatisfactory.

The appeal is allowed but I shall make no order as to costs, as the respondent is the wife, and according to the record she is a pauper.