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Mohorunnissa Vs. Abdul Salam and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1974CriLJ78
AppellantMohorunnissa
RespondentAbdul Salam and anr.
Excerpt:
- - and may make an order under this section notwithstanding such offer if he is satisfied that there is just around for so do-ins. we fail to understand how that interpretation is possible. a second or even a third or fourth wife, a muslim may not be infringing any law and he is perfectly within his right to do so. no other ground for refusal to live with the husband need be looked into if there is the good ground of the husband contracting another marriage for the wife's refusal to live with her husband......marriage with another wife or keens a mistress it shall be considered to be just ground for his wife's refusal to live with him.6. this last sentence was added by the amending act ix of 1949.7. from a reading of the above proviso it is clear that if the husband offers to maintain his wife on condition of her living with him, the wife can refuse to live with him and still can claim maintenance if there are any proper grounds for refusal by the wife to live with the husband and from the last sentence added to the proviso it is clear that if a husband has contracted a marriage with another wife or keeps a mistress that would be a proper ground for the wife to refuse to live with the husband and claim maintenance. to put it in other words as per the provisions in section 488 cri. p. c......
Judgment:

Ramachandra Raju, J.

1. This Criminal Revision case is referred to a Bench as a question of law of importance is involved with regard to the right of a wife to claim separate maintenance under Section 488, Cr. P. C. from her husband on the around that he married a second wife. In the decision ibbalunnissa Begum v. Habib Pasha : AIR1961AP445 a single Judge of this Court took the view that as provided under Section 488 Cri. P. C. a wife cannot claim maintenance from her husband on the ground that he contracted marriage with another wife without proof of neglect or refusal to maintain her on the part of the husband. On the around that the preponderance of opinion of the other High Courts seems to be contrary the matter has been referred to a division Bench for decision. That is how the matter has come up before us.

2. The brief facts leading to the filing of the petition are that the petitioner was legally married to the first respondent on 10-5-1964 according to Muslim customs and rites and both of them lived as wife and husband for some time.- The allegation of the petitioner is that subsequently the first respondent drove her away by taking her jewels and clothes on which the petitioners got issued a registered notice on 31-12-1964 for which there was no reply from the first respondent. Even when the petitioner gave birth to a male child, the first respondent did not care to see the petitioner and the child died subsequently. The petitioner got a further notice issued on 2-1-1967 to the first respondent and to that notice the first respondent has given a reply with false allegations. The first respondent has wilfully neglected the petitioner and hence she is entitled to claim separate maintenance at the rate of Rs. 30/- per month.

The first respondent denied having driven away the petitioner after removing her jewels and clothes as alleged. According to him the petitioner and her father wanted him to sell away his property at his village and 'settle down at Chittoor to which course the first respondent did not agree and hence the petitioner on her own 'accord refused to live with him and he never neglected to maintain her and he is ever willing to take the petitioner and maintain her. It is also the case of the petitioner as deposed in her evidence that the first respondent married a second wife. The first respondent in his evidence has admitted his second marriage but stated that after failing in his attempts to Set at the petitioner and live with her amicably, he was forced to take a second wife. In support of his case the first respondent also examined another witness as R. W. 2 who spoke about his intervention at the instance of the first respondent and requesting the father of the petitioner to send her to the first respondent.

The Additional Munsif Magistrate who enauired the petition on the material placed before him came to the conclusion that there was no neglect of the petitioner by the first respondent and accordingly refused to grant maintenance. In the revision petition filed by the petitioner, the learned Sessions Judge, Chittoor agreed with the conclusion of the learned Magistrate that there was no neglect or refusal by the first respondent to maintain the petitioner. But it was argued before the learned Sessions Judge on behalf of the petitioner that the first respondent has admitted that he contracted a second marriage and the very fact of his taking a second wife will entitle the petitioner to claim maintenance as provided under Section 488 Cri. P. C. The learned Sessions Judge without any discussion held that the mere fact of the first respondent contracting a second marriage ipso facto does not entitle the petitioner to maintenance and she is not entitled to the same unless she can establish neglect and refusal by the first respondent to maintain her.

3. The only point urged in this revision case is that as provided under Section 488 Cri. P. C. a wife is entitled to claim maintenance from her husband merely on the ground that the husband contracted a second marriage without any need to prove any neglect or refusal by the husband to maintain her.

4. It is provided under Sub-Section (1) of Section 488 Cri. P. C. that if a person having sufficient means neglects or refuses to maintain his wife, upon proof of such neglect or refusal the Magi- strata may order such person to make a monthly allowance for the maintenance of his wife. Sub-section (2) of Section 488 provides that such allowance shall be payable from the date of the order or if so ordered from the date of the application. Under Sub-section (3) of Section 488 provision is made for enforcement of the order. It is provided thereunder that if any person so ordered fails without sufficient cause to comply with the order, the Magistrate can issue a warrant for levying the amount due in the manner provided for levying fines and can also sentence such person to imprisonment for a term which may extend to one month or until payment if sooner made.

5. After Sub-section (3) of Section 488 comes the relevant proviso which is in the following terms:

Provided that if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her. and may make an order under this section notwithstanding such offer if he is satisfied that there is just Around for so do-ins. If a husband has contracted marriage with another wife or keens a mistress it shall be considered to be just ground for his wife's refusal to live with him.

6. This last sentence was added by the Amending Act IX of 1949.

7. From a reading of the above proviso it is clear that if the husband offers to maintain his wife on condition of her living with him, the wife can refuse to live with him and still can claim maintenance if there are any proper grounds for refusal by the wife to live with the husband and from the last sentence added to the proviso it is clear that if a husband has contracted a marriage with another wife or keeps a mistress that would be a proper ground for the wife to refuse to live with the husband and claim maintenance. To put it in other words as per the provisions in Section 488 Cri. P. C. even though there is no neglect or refusal on the cart of the husband to maintain his wife still the wife can live separately and claim maintenance from the husband if the husband happened to marry a second wife. On a plain read me of the provisions contained in Section 488 Cri. P. C. we feel no difficulty in coming to the con-elusion that it is what is provided under Section 488 Cri. P. C. But in the decision : AIR1961AP445 the learned single Judge who decided that case took a different view.

The learned Judge was of opinion that the proviso, (extracted above) having come immediately after Sub-section (3) of Section 488 does not constitute a provision applicable to the entire Section 488 as a whole and the provision contained in the Proviso really relates to enforcement of an order which comes under Sub-section (3) and not to a ground of maintenance under Sub-section (1). By cutting this interpretation the learned Judge concluded that a wife cannot be held to be entitled to separate maintenance under Section 488 Cri. P. C. on the ground that the husband has married another wife. We fail to understand how that interpretation is possible. The proviso governs the section itself regarding the matters mentioned in it. Simply because the proviso comes after Sub-section (3) it does not necessarily follow that the provision made in the proviso relates only to the matters mentioned in that sub-section.

There is nothing in the proviso from which it can be said that the provision therein is made only with regard to the enforcement of the orders passed for maintenance for which provision is made in Sub-section (3). What is mentioned in the proviso is with regard to the right to maintenance and not with regard to the enforcement of an order Passed for maintenance. The provision made in the proviso is that even if the husband offers to maintain his wife on condition of her living with him that does not disentitle the wife to live separately and claim maintenance if there are any proper grounds for her refusal to live with the husband and by the subsequent addition to the proviso the further provision made is that contracting a marriage with another wife or keeping a mistress by the husband will be a just ground for the wife to refuse to live with him. That means in the case of the husband contracting a second marriage or keeping a mistress even if the husband offers to maintain the wife on condition of her living with him, still she can justifiably refuse to live with him and claim separate maintenance. We do not find any justification for the interpretation put by the learned Judge on the proviso.

8. The fact that the parties are Mohammadans does not make any difference. It may be if a Muslim takes a second wife it cannot be said to be his neglecting his first wife or even causing cruelty to her. It may be so as his personal law allows him to take more than one wife. But as far as Section 488 Cr. P. C. is concerned that is besides the point. It may be in taking? a second or even a third or fourth wife, a Muslim may not be infringing any law and he is perfectly within his right to do so. But the law as provided under Section 488 Cri. P. C. makes it obligatory on his part to provide separate maintenance to the first wife if she intends to live separately from him, even apart from any cruelty or neglect on his part, on the ground that he has contracted a second marriage. From a plain reading of Section 488, Cri. P. C. the legislative intent is clear. There is no ambisuity in it at all. It is true it is the case of the first respondent that he married a second wife after failing in his attempts to get at the petitioner and live with her amicably. Even if the first respondent was compelled to take a second wife by reason of the conduct of the petitioner he may have other remedies open to him against the petitioner for refusing to live with him. But that plea will not in any way be available to him once he takes a second wife which entitles the first wife to live separately and claims maintenance under Section 488 Cri P. C. The effect and scope of Section 488 is that when the husband takes a second wife during the subsistence of the first marriage, the first wife can live .separately and claim maintenance even though the husband wants to or is willing to live with her and maintain her.

9. A similar interpretation was put on the proviso by other High Courts. In Syed Ahmed v. N. P. Tai Begum AIR 1958 Mys. 128 : 1958 Cri LJ 1201 it was held by the Mysore High Court that under Section 488 Cr. P. C, neglect or no neglect the husband is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife

10. In Maiki v. Hemrai : AIR1954All30 it was held by the Allahabad High Court that for granting maintenance under Section 488 Cr. P. C. no other ground for refusal to live with the husband need be looked into if there is the good ground of the husband contracting another marriage for the wife's refusal to live with her husband.

11. In Mohammed Haneefa v. Mariam Bi : AIR1969Mad414 it was held by the Madras High Court that the proviso governs the whole Section 488 Cr. P. C and therefore a wife who refuses to live with her husband on account of his re-marriage is not prevented from claiming maintenance under Sub-section (1) of Section 488 Cr. P. C. It was also held in that decision that the proviso does not make any difference between one person or the other. There is no indication that it applies only to parties governed by the law of monogamy. On the other hand the Criminal Procedure Code is a general law giving a summary and speedy relief to the destitute wife and children who are entitled to be maintained by the husband. One cannot read into the proviso what is not found in it because some hardship or inconvenience is caused to a husband governed by the personal law. With great respect with that view we are in entire agreement.

12. But a different view was taken by a Division Bench of the Punjab High Court in Mt. Dhan Kaur v. Niranian Singh. . We are unable to agree with the reasoning adopted by the learned Judges who decided that case in coming to the conclusion that proof of neglect or refusal by the husband to maintain his wife is the basis of a claim for maintenance by a wife under Section 488 and without proof of that no order of maintenance can he made in favour of the wife under that section even though she is living separate from her husband in pursuance of her statutory right to live separately from him because he has married again or has taken a mistress to himself.

13. Therefore overruling the decision : AIR1961AP445 we hold that the proviso coming after Sub-section (3) of Section 488 Cri. P. C. governs the whole of the Section 488 and irrespective of the personal law of the parties neglect or no neglect or refusal or no refusal on the part of the husband, a wife can refuse to live with him on account of his contracting a second marriage and claim separate maintenance as provided under Sub-section (1) of Section 488 without any need to prove refusal or neglect to maintain on the part of her husband. If that, is so the petitioner is entitled to an order far separate maintenance from the first respondent. Accordingly the Criminal Revision case is allowed and the orders of the courts below are set aside and the case is sent back to the court of the Judicial First Class Magistrate, Chittoor for the purpose of fixing the quantum of maintenance.


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