1. Shahzadi Begum has filed this revision questioning the order of the Sessions Judge, Khammam, allowing the petition filed by her husband, Mohd. Abdul Gaffar, to set aside the order of the Additional Judicial First Class Magistrate, Kothagudem, awarding maintenance to her at Rs. 75/- per month.
2. Shahzadi Begum is the wife of Mohd. Abdul Gaffar, the respondent. Abdul Allem, aged about 2 years is their son, Shahzadi Begum (Petitioner) and Mohd. Abdul Gaffar (respondent) were married on 14th April, 1974. According to the petitioner, the respondent was ill-treating her and ultimately forced her to leave the house on 1st February, 1975 and was not providing any maintenance for her or their son. She further stated that the respondent had divorced her on 14th January, 1978 and had married again. She had not remarried. The respondent is working as a Fitter in the Singareni Collieries at Kothagudem and gets a monthly income of Rs. 600/-. Their son is still under her guardianship and protection. She filed the petition under Section 125, Cr.P.C. for maintenance at the rate of Rs. 200/- per month for her and her minor son from the date of the petition.
3. The respondent contested the petitioner denying the allegations of illtreatment and desertion. According to him, the petitioner is a quarrelsome lady and was insisting upon the respondent to separate from his parents for which he refused and ultimately on 1st February, 1976 she went away to her parents house carrying her jewellery. He says that he made efforts to bring her back and live with her in vain. He admitted that he had divorced her and had remarried. He stated that he was a trainee fitter getting a salary of Rs. 375/- per month and he had to feed his parents, second wife and his unemployed brother and sister.
4. The learned Magistrate held that the petitioner had failed to prove any ill-treatment or neglect on the part of the respondent. Since the respondent had divorced the petitioner, and the latter had not re-married, he held that the petitioner was entitled for maintenance at the rate of Rs. 75/- per month. For the minor son he granted maintenance at the rate of Rs. 30/- per month.
5. Aggrieved by his order in granting maintenance to the petitioner, the respondent filed a revision in the Court of the Sessions Judge, Khammam. He did not question the grant of maintenance to the minor son. The learned Judge allowed the revision holding that the petitioner failed to prove any ill-treatment or neglect on the part of the respondent and, therefore, she was not entitled for any maintenance, even though she was divorced by the respondent and she had not re-married.
6. In the revision it is submitted by the learned counsel for the petitioner that the learned Sessions Judge has not properly appreciated the legal position, that the Court should consider the position of the parties on the date when the petition was filed, by that date the respondent had divorced the petitioner and re-married and the petitioner had not re-married, then there is no question of the petitioner going and living with her husband and it is his duty to maintain her, so long as she had not re-married. On the other hand, it was submitted by the learned counsel for the respondent that the position of law is not different merely because the wife is divorced, and since the petitioner had failed to prove any neglect or ill-treatment by the respondent, she is not entitled for any maintenance.
7. In order to decide this question it is necessary to refer to Section 125 of the Code of Criminal Procedure, 1973. This section corresponds to Section 488 of the repealed Code. But, a number of changes have been brought about by the new Section. The object of the Section is to provide a speedy remedy any also to prevent starvation and vagrancy leading to the commission of crime. Section 125(1), Cr.P.C. provides, that if any person having sufficient means neglects or refuses to maintain his wife, unable to maintain herself, the Magistrate upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding Rs. 500/- in the whole. In view of the explanation 'wife' includes a woman who has been divorced or has obtained a divorce from her husband and has not remarried. Explanation to sub-section (3) provides that, if a husband had contracted a marriage with another woman or keeps a mistress, it shall be considered to be a just ground for his wife's refusal to live with him. Under sub-section (4), no wife shall be entitled to receive an allowance from her husband if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
8. In view of these provisions, a wife, who is divorced and who has not re-married, is entitled for maintenance provided, she is unable to maintain herself and proves that her husband having sufficient means, has neglected or refused to maintain her. The fact that the husband has contracted a marriage with another woman or keeps a mistress is a good ground for her refusal to live with him. When once a husband divorces a wife and remarries, there is no question of her going and living with him. In fact, it is a good ground for her to refuse to live with him. Further, when a petition under Section 125, Cr.P.C. is filed, the Magistrate has to consider the position as on that date; if necessary he could also take note of any subsequent events, which will have a bearing on the question. In Chand Begum v. Hyderbaig, (1972) 1 APLJ 280 : (1972 Cri LJ 1270) Chinnappa Reddy, J., observed, that in a case arising under Section 488 of the old Code, the neglect or refusal must be in praesenti, that is, at the time of the proceedings before the Magistrate.
9. In Bai Tahira v. Ali Hussain Fissalli, : 1979CriLJ151 it was held by the Supreme Court that, on a simple reading of the Explanation (b) to Section 125(1) of the Code of Criminal Procedure, 1973, it is clear that every divorced wife, otherwise eligible, is entitled to the benefit of maintenance allowance and the dissolution of the marriage makes no difference to this right under the Code.
10. In the case on hand the respondent himself had admitted that he had divorced the petitioner and he had remarried. The petitioner says that she had not re-married and it is not disputed by the respondent. Since he has remarried, there is no question of the petitioner living with him and his second wife. It is not the case of the respondent that he has been paying any maintenance to the petitioner from the date of divorce. He cannot say that he need not maintain, in law, his divorced wife. It so, it is a case where the respondent has neglected or refused to maintain the petitioner. It is not disputed that he has sufficient means to maintain her. Equally, it is not disputed that the petitioner is unable to maintain herself. If so, the conditions of Section 125, Cr.P.C. are satisfied and the respondent is bound to pay maintenance to the petitioner.
11. The learned Judge has completely misdirected himself in his approach to the problem. He did not take the circumstance obtaining as no the date when the petition was filed. He equated a divorced wife with a wife and thought that even a divorced wife should be prepared to live with her husband under the same roof along with his second. He also erred in taking into consideration as to what had happened when the petitioner and the respondent were living together as wife and husband, when the petitioner left the house of the respondent on 1st February, 1975. The learned Judge seems to think that under the second proviso to sub-section (3), if a husband offers to maintain his wife on condition of her living with him and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her and make an order under the Section, notwithstanding such offer, if he is satisfied that it is a just ground for so doing. The learned Sessions Judge has ignored the explanation to that proviso, which says, that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be a just ground for his wife's refusal to live with him. The learned Sessions Judge seems to think that it a husband offers to maintain even his divorced wife, on condition of her living with him, it is a good ground for refusing maintenance to her. In view of the explanation to that proviso, there is no question of a divorced wife living with her husband or as a matter of fact, any wife living with him, if he had re-married. I, therefore, hold that the judgment of the learned Judge is patently incorrect.
12. Consequently, I set aside his order and restore the order of the Magistrate, awarding maintenance at the rate of Rs. 75/- per month to the petitioner. Accordingly, the revision is allowed.
13. Revision allowed.