D.P. Uniyal, J.These three connected second appeals have been referred to us by a learned single Judge as he was of the view that the opinion expressed by Mahmud, J. in the case of Abdul Kadir v. Salima, ILR (1886) All 149 (FB) that a Mohammedan wife has no right to refuse herself to her husband if her prompt dower is not paid when the marriage has been consummated with her consent, is in the nature of an obiter dictum and requires reconsideration.

2. The facts giving rise to these appeals may now be stated. Two suits were filed, one by Smt. Rabia Khatoon against her husband for dissolution of marriage and the other by Mohammad Mukhtar Ahmad against the wife for restitution of conjugal rights. Parties were married in 1948. The marriage was consummated with the consent of the wife and a son was born of the wedlock in 1951. The wife went to her fathers house shortly after the birth of the child in 1951. Mohammad Mukhtar, the husband, went to bring his wife Smt. Rabia Khatoon some time in April or May 1951 but she refused to come back. No maintenance allowance was paid by the husband to the wife since 1951, and the suit giving rise to these appeals came to be filed in 1956.

3. In the suit filed by the wife it was alleged that in spite of demand the husband had not paid her prompt dower which was settled at Rs. 5,000; that she continued to perform her marital relations with her husband for over two years and a child was born to them; that the husband treated her cruelly and beat her and turned her out of the house, with the result that she was obliged to take shelter in her fathers house and was living there even since She alleged that her husband had failed to maintain her during all these years and had not paid her prompt dower to which she was entitled.

4. In his written statement the husband denied that he treated his wife cruelly or that she was forced to leave his house due to ill treatment He alleged that the dower payable to the wife was deferred dower and that it was only Rs. 500 In the counter suit filed by the husband for restitution of conjugal rights similar pleas were raised by the parties.

5. Both the Courts below held that it was not established that the husband committed physical cruelty upon his wife or that she was forced to leave her husbands house due to his ill treatment. The Courts below further found that the dower settled was prompt dower and that it was Rs. 5,000, and that the husband had not paid the said dower to the wife. On the question whether the husband had neglected or failed to provide maintenance to his wife for a period of two years, it was found as a fact that the husband had not paid any maintenance allowance to the wife ever since she left his house.

The lower appellate Court was, however, of the opinion that the wife having admitted the husband to sexual intercourse she was not entitled to refuse to live with him as wife and that non-payment of dower could not be a good defence to the suit for restitution of conjugal rights. On these findings the suit of the husband for restitution of conjugal rights was decreed subject to the payment of Rs. 5,000 as prompt dower, while the suit of the wife for dissolution of marriage was dismissed on the ground that she could not deny herself to the husband after consummation of the marriage merely because her dower had remained unpaid.

6. The vital question which arises for consideration is whether a Mohammeddan wife has a right to refuse to go to her husband if her prompt dower is not paid, even though the marriage had been consummated with the consent of the wife before the date of the refusal. A similar point arose for consideration in the Full Bench case of ILR (1886) All 149 (FB) (supra). Mahmood, J. whose judgment was adopted by the Full Bench observed that:

The right of dower does not precede the light of cohabitation which the contract of marriage necessarily involves, but that the two rights come into existence simultaneously and by reason of the same incident of law. The right of the wife to claim maintenance from her husband arises in the same manner as one of the legal effect of marriage, and to say that any of those effects are not simultaneously created by the contract of marriage amounts, in my opinion, to a violation of the fundamental notions of jurisprudence regarding correlative rights and obligations arising from one and the same perfected legal relation.

7. Mahmood, J. referred to a passage in the Hedaya to make his point that the Mohammedan Law entitles the wife to resist the claim of the husband for cohabitation with her by pleading non-payment of her prompt dower, but it proceeds essentially upon the assumption that his right to put forward such a claim is antecedent to the plea. The same is the effect of the passage from the Durrul Mukhtar and the view expressed in the Fatawa Qazi Khan and the Fatawa Alamgiri. Mahmood, J. went on to say that the opinion of Imam Abu Hanifa to the contrary was not shared by his two eminent disciples Qazi Abu Yusaf and Imam Muhammad so far as the question of cohabitation was concerned and said:

Whenever there is a difference of opinion, the opinion of the two will prevail against the opinion of the third. Now, bearing this in mind, it is clear that the two disciples of Imam Abu Hanifa, regarding the surrender of the wife to her husband as bearing analogy to delivery of goods in sale, held that the Hen of the wife for her dower, as a plea for resisting cohabitation, ceased to exist after consummation. According to the ordinary rule of interpreting Muhammadan law, I adopt the opinion of the two disciples as representing the majority of "the three Masters", and hold that, after consummation of marriage, non-payment of dower, even though exigible, cannot be pleaded in defence of an action for restitution of conjugal rights; the rule so laid down having, of course, no effect upon the right of the wife to claim her dower in a separate action.

The view expressed by Mahmood, J. that whenever there is a difference of opinion between Imam Abu Hanifa, the Master, and his two disciples Imam Muhammad and Qazi Abu Yusaf, who was Qazi of Baghdad, the opinion of the latter must prevail over that of the former, was regarded as obiter by Sir Sulaiman, C.J. in the case of Mt. Anis Begam and Others Vs. Malik Muhammad Istafa Wali Khan . Sir Sulaiman pointed out that it was not possible to accept the view that in all matters relating to Mahommedan Law the majority opinion of the disciples was preferable to that of the master. The correct position, according to the learned Chief Justice, was as follows:

Different doctors have followed different rules of preference. Those, who were more orthodox and generally speaking, more ancient, in many cases preferred the solitary opinion of Abu Hanifa to even the joint opinion of his disciples. There are later text-book writers who have preferred the opinion of two as against that of one. But such rules are helpful only when there is no clear consensus.

8. After quoting from Ruddul Mukhtar the learned Chief Justice observed:

there is no accepted rule that when there is a difference of opinion amongst the founders and schools and their disciples, opinion or ruling of a lawyer ought to be given according to the opinion of Abu Hanifa, even if all his disciples differ from him; and in the absence of any dictum of his in accordance with the opinion of Abu Yusaf, then Muhammad, then Zafar and then Hasan Ibn Ziad. If the authorities were examined it will generally be found that in soma matters the solitary view of Abu Hanifa has been preferred whereas in other matters the view of Abu Yusaf, Muhammad or Zafar has been followed. According to Alhawi the correct rule was that in cases of difference of opinion regard should be had to the authority and reasons in support of each view and the one which has the strongest support should be followed.

9. The point for decision in the case of Mt. Anis Begam and Others Vs. Malik Muhammad Istafa Wali Khan was whether the suit of the husband for restitution of conjugal rights was liable to be dismissed on the ground that prompt dower had remained unpaid even though the marriage had been consummated with the consent of the wife prior to the refusal of the wife to live with the husband. On this point Sir Sulaiman delivering the judgment of the Division Bench followed the view expressed by Mahmood, J. in ILR (1886) All 149 (FB), and emphasised that:

The two considerations which might well justify the acceptance of the view of the disciples in India, are: First that owing to the prevalent practice, the amounts of dower fixed in this country are often unduly high and beyond the means of the husband. To allow to the wife the right of refusing to live with her husband, even after consummation, so long as any part of the prompt dower remains unpaid would, in many cases, where the husband and wife quarrel, amount to an absolute option of the wife to refuse to live with her husband and yet demand a maintenance allowance. This would dislocate domestic life. Secondly, as will be shown hereinafter, under the Anglo-Mahommedan Law as administered in this country a suit for restitution of conjugal rights though brought for the enforcement of a right under the Mahommedan Law, is in the nature of a suit for specific performance, and there is accordingly a certain amount of discretion in the Courts of justice which can impose a condition of previous payment of the dower debt, or, at any rate a portion of it, in the decree.

10. The learned Chief Justice went on to say that the view expressed by Mahmood, J. had held the field for nearly 40 years (now 75 years) and had been followed by all the High Courts in India, excepting Oudh. In the result, he held that there was no right in the wife to refuse to return to the husband after the marriage had been consummated on the ground that her dower had remained unpaid.

11. Reference was made by the learned counsel to the case of Mohammad Yasin v. Rahmat Ilahi, AIR 1947 All 201 (FB). That was a case in which the point for consideration was whether according to the Hanafi school of Mahomedan Law a valid waqf could be created by a mere declaration by the waqif, or whether it was necessary for the completion of the waqf that the person appointed mutwalli should be given possession of the dedicated properties. The question debated in that case was whether the opinion of the two disciples of Abu Hanifa was to be preferred to the opinion of the Master. The Full Bench was of the opinion that the observation of Mahmood, J. in ILR (1886) All 149 (FB), that the opinion of the disciples was always to be preferred was obiter and did not bind the Court. Justice Wali Ullah pointed out that the principle of stare decisis was not applicable to a case where the decision was based on an erroneous view of the law if the reversal of the old view of the law would not unsettle transactions entered into on the faith of the pre-existing law.

12. In Tricomdas Cooverji v. Gopinath Jiu Thakur, ILR 44 Cal 759 : (AIR 1918 PC 182), the Privy Council observed that a long series of decisions based upon a construction not free from doubt should not be disregarded. In the case of Mohammad Yasin, AIR 1947 All 201 (FB), the point was one which did not have the effect of disturbing titles and unsettling transactions decided on the basis of old decisions; whereas the view of Mahmood, J., which was Followed and approved by a Division Bench of this Court in the case of Mt. Anis Begam and Others Vs. Malik Muhammad Istafa Wali Khan , has been accepted as the correct view for nearly 75 years. If the decision in ILR (1886) All 149 (FB), were to be held as bad law it would not only create uncertainty in the law but also disturb the domestic peace of Muhammedan families throughout India. According to one school of Mahomedan Law a Muhammedan wife governed by Hanafi law has the right to refuse to go to her husband even after the consummation of marriage with her consent if her dower remains unpaid, but it would be dangerous to adopt this view at the present time having regard to the prevalent practice and the modern conditions of life. The Courts of law, as was pointed out by Sir Sulaiman, have certain discretion in this matter because a suit for restitution of conjugal rights is in the nature of a suit for specific performance and it is open to the Court to impose conditions on the husband to ensure the right of the wife to secure her prompt dower. A contrary view has been expressed in Mst. Noor Bibi v. Pir Bux, AIR 1950 Sind 8, but it is not consistent with progressive thought and has not found acceptance in the Courts in India except Oudh.

13. The suit of the wife Smt. Rabia Khatoon for dissolution of her marriage was based on S. 2(ii) of the Dissolution of Muslim Marriages Act (VIII of 1939). Section 2, so far as material, is as follows:-

A woman married under Muslim Law shall be entitled to obtain a decree for the dissolution of her marriage on any one or more of the following grounds:-

(i)............

(ii) That the husband has neglected or has failed to provide for her maintenance for a period of two years.

(iii)............

(iv)............

(v)............

(vi)............

(vii) 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.

14. The two grounds upon which dissolution of marriage was sought were (a) that the husband had neglected or had failed to provide for her maintenance for a period of two years, and (b) that he habitually assaulted her or made her life miserable, which conduct amounted to physical ill treatment. Both the Courts below held that the wife had failed to prove physical or legal cruelty on the part of the husband. As regards the failure of the husband to maintain her for a period of two years, the Courts below were of opinion that this was due to the fact that the wife refused to go back to the husband in spite of his best efforts and it could not, therefore, be said that he had neglected or had failed to provide for her maintenance

15. In Mt. Badrulnisa Bibi Vs. Syed Mohammad Yusuf, , it was held that the word "neglect" in S. 2 of Dissolution of Muslim Marriages Act, implied wilful failure, and the words "has failed to provide", though not happily worded, implied an omission of duty. Where the wife through her own conduct led the husband to stop the maintenance, the Court would not allow dissolution of marriage for that would be giving her a benefit-if benefit it could be called-arising from her own wrongful acts.

16. The view expressed in the above case was followed in AIR 1944 336 (Lahore) , and it was held that it is not correct to say that Section 2(ii) casts upon the husband an absolute duty to maintain his wife in all cases and any failure in that duty would be a ground for divorce, even if the wife herself was at fault and was really the cause of the husband refusing to maintain her. The learned judges observed that:

Before a husband can be said to have neglected or failed to provide maintenance for his wife, it must be held that the husband was under a legal duty to provide such maintenance. If the husband was not under Mahomedan or Anglo-Mahomedan Law bound to maintain his wife, how can it be said that he had neglected or failed to maintain her if he sent her no money or other maintenance

The learned Judges went on to say:

The plaintiff for no valid reason has refused to live with her husband and to perform her marital obligations. That being so, it must be held that the defendant husband was not liable to maintain the plaintiff as there was no duty to maintain.

17. A Division Bench of the Peshawar Judicial Commissioners Court in Fazal Mahmud v. Mst. Umatur Rahim, AIR 1949 Pesh 7, adopted the reasoning of the Allahabad High Court in Mt. Badrulnisa Bibi Vs. Syed Mohammad Yusuf, , and that of the Lahore High Court in AIR 1944 336 (Lahore) , and observed that under the Mahomedan Law no wife can claim maintenance unless she resides with the husband and is ready to perform the marital duties.

18. The learned counsel for Smt. Rabia Khatoon vehemently contended that under the Hanafi law she was entitled to refuse herself to the husband so long as her dower was not paid and inasmuch as her living away from the husband was due to the wrongful act of the husband in not paying her prompt dower, the latter was bound to maintain her. If he did not do so, it amounted to have neglected or to have failed to provide for her maintenance. In our opinion there is no force in this contention. There is no right in the wife to refuse to live with her husband after the marriage has been consummated with her consent. So long as she keeps herself away without the fault of the husband she has no right to claim maintenance from him. If maintenance is not provided by the husband on account of the wifes wrongful refusal to live with him he cannot be considered guilty of negligence in maintaining her.

19. We may point out that in this case there is no reliable evidence in support of the plea of the wife that she had demanded dower from her husband, soon after she left his house she sent a letter Ex. A-4 dated 9-2-1954 to her husband in which she expressed feelings of affection and cordiality towards him. It was for the first time on the 26th May 1951 that a letter Ex. A-13 was sent by her father to the father of her husband saying that he was not prepared to send his daughter as the husband was still immature. As regards the allegation of the wife that she had demanded her prompt dower from her husband when he came to call her the evidence adduced on her behalf is contradictory. While she stated that she did not go to the husband because his people were not prepared to give an undertaking that they would treat her well and also refused to pay her prompt dower, the statement of her father was to the effect that the demand for dower was made at the time when the Panchayat was convened and not when her husbands people came to call her. In this state of the evidence the courts below were right in holding that it was not established that the wife had really made a demand for her prompt dower.

In the view we have taken of the case we are of the opinion that the courts below were justified in dismissing the suit of the wife for the dissolution of marriage and in decreeing the suit of the husband for restitution of conjugal rights conditional upon his paying a sum of Rs. 5,000/- as dower of the wife.

For the reasons given above we see no force in these appeals which are accordingly dismissed. In the circumstances of the case we direct that the parties will bear their own costs throughout.