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iqbalunnisa Begum and anr. Vs. Habib Pasha - Court Judgment

LegalCrystal Citation
SubjectFamily;Criminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 84 of 1959 and Crl. R.P. No. 74 of 1959
Judge
Reported inAIR1961AP445; 1961CriLJ604
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 488, 488(1) and 488(3)
Appellantiqbalunnisa Begum and anr.
RespondentHabib Pasha
Appellant AdvocateSyed Aftab Hussain, Adv.
Respondent AdvocateT. Bali Reddy, Adv. for ;Mohammed Jehangir Ali, Adv.
DispositionRevision dismissed
Excerpt:
family - maintenance - section 488 of criminal procedure code,1898 - petitioner second wife filed revision petition claming separate maintenance for herself and son under section 488 - proviso to section 488 (3) applicable to entire section - related to enforcement of direction passed under section 488 (3) - claim of maintenance not covered under sub-section (2) - held, petitioner not entitled to separate maintenance under impugned section. - - the first petitioner was always treated by him and his family with love and affection......petitioner, filed a petition under section 488 cr.p.c. in c. c. no. 128/5/56 before the additional city magistrate. hyderabad praying that they should he granted rs. 100/- and rs. 50/- as their maintenance respectively.4. in that petition, the first petitioner pleaded as follows: she is the lawfully married wife of the respondent. the second petitioner is the son of the lawfully wedded wife of the respondent. she suffered extreme cruelty mentally and physically at the hands of the respondent. the latter promised to maintain her separately and pay to her half of his salary and half of his mansab. to that effect, the respondent executed a written agreement. ex. p-1 dated 1-1-1949. the respondent never handed the amount agreed upon to give her. the respondent had deliberately neglected and.....
Judgment:
ORDER

Anantanarayana Ayyar, J.

1. This is a petition to revise the order of the District and Sessions Judge, Secunderabad in Criminal Revision Petition No. 226/6 of 1957 in which he confirmed the order of the Additional City Magistrate, Division No, II, City Criminal Court, Hyderabad in C. C. No. 128/5 of 1956 on his file.

2. The relevant facts are briefly as follows:

3. There are two petitioners in this case. The first petitioner is Iqbalunnisa Begum. She is the wife of Habib Pasha who is the respondent in this petition. The second petitioner is the child of the first petitioner and of the respondent. The first petitioner, On behalf of herself and as representing the second petitioner, filed a petition under Section 488 Cr.P.C. in C. C. No. 128/5/56 before the Additional City Magistrate. Hyderabad praying that they should he granted Rs. 100/- and Rs. 50/- as their maintenance respectively.

4. In that petition, the first petitioner pleaded as follows: She is the lawfully married wife of the respondent. The second petitioner is the son of the lawfully wedded wife of the respondent. She suffered extreme cruelty mentally and physically at the hands of the respondent. The latter promised to maintain her separately and pay to her half of his salary and half of his mansab. To that effect, the respondent executed a written agreement. Ex. P-1 dated 1-1-1949. The respondent never handed the amount agreed upon to give her. The respondent had deliberately neglected and refused to maintain her and the second petitioner. She was ill-treated by the respondent. The respondent contracted a third marriage in the month of April 1955. Hence, she is entitled to maintenance under Section 488 Cr. P. C.

5. The respondent filed his written statement contending as follows: The relationship of the parties as stated in the petition is true. He had executed an agreement on 1-1-1949 to the effect that he will pay the first petitioner half of his salary and half of his mansab. The first petitioner was always treated by him and his family with love and affection. The first petitioner was provided with the necessities of life and comforts. The first petitioner did not return to the respondent for about six years. So, the respondent married a third wife on 10-3-1955. The first petitioner is not entitled to maintenance under Section 488 Cr. P. C.

6. The learned City Magistrate believed the version of the respondent and his witnesses that ihe respondent had not refused to maintain the wife and that the wife herself refused to live with her husband without sufficient reason and was not entitled to receive any maintenance. He held, on the other hand there was neglect and, refusal to maintain the second petitioner and awarded a sum of Rs. 25/- towards his maintenance. The two petitioners filed Crl. R. P. No. 226/6 of 1957 before the Sessions Judge, Secunderabad. The latter dismissed that petition, holding that no legal points were involved. Aggrieved with that order, the two petitioners have approached this court in revision.

7. As regards the first petitioner, the learned City Magistrate had to decide mainly on the oral evidence adduced on both sides. He chose to disbelieve the evidence on behalf of the first petitioner. The learned Counsel for the petitioner contends that it would have been quite easy for the respondent to let in such evidence and that if the respondent had really been sincere to get back his wife to live with him, he must have been able to prove some concrete evidence of steps which he had taken to secure her presence to live with her. The learned Magistrate felt convinced by the evidence which the respondent actually produced and passed the order after seeing the witnesses before him. On this ground alone, it is not possible for this Court to interfere with the order of the learned City Magistrate.

8. The learned counsel for the first petitioner seeks to rely on the provision of Section 488 Cr. P. C. which immediately follows the proviso in Sub-section (3) of that Section, which runs as follows;

'If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him.'

It is beyond doubt or dispute that the respondent has married another wife. The only question to be considered is whether the first petitioner is entitled to separate maintenance under above provision. The provision under consideration refers to 'just ground, for his wife's refusal to live with him'. This follows after a colon, which separates it from the previous proviso, which reads as follows:

'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.' This proviso is itself separated from the main body of sub-section (3) of Section 488 Cr. P. C. by a colon. Further, Section 488(1) Cr. P. C. which relates to the award of maintenance, does not mention any refusal of the wife to live with the husband or the grounds on which she so refused. On the contrary, it is based on the husband's refusal to maintain his wife, not on the wife's refusal to live with the husband.

From all this, it would follow that the provision under consideration and the proviso are linked together with the main portion of Sub-section (3) and do not constitute a provision and proviso applicable to the entire Section 488 Cr. P. C. as a whole. The above provision really relates to enforcement of an order which comes under Section 483 (3) Cr. P. C. and not to a ground of maintenance under Section 488(1) Cr. P. C. Consequently, I hold that the first petitioner cannot be held to be entitled to separate maintenance in view of the respondent having married another wife. So, I find that the petition is not tenable as regards the first petitioner.

9. As regards the second petitioner, the point urged is as to the quantum of maintenance payable to him. The learned City Magistrate has found that the respondent is a school teacher with an income of Rs. 238/- per month and mansab of Rs. 8-7-0 per month ..... It is not contended before me on behalf of the petitioners that the respondent has a higher income. It is stated by the learned Counsel for the respondent that the latter has got four grown up children born by the first wife and also several children by the second and third wives. He has to maintain a very large family.

Considering the means of the respondent, it cannot be said that the award of Rs. 25/- towards the maintenance of the second petitioner by the learned City Magistrate, on the date of his order namely 29-6-1957, when the boy was about 7 years old, was unduly low (for purposes of Section 488, Cr. P. C.). If the second petitioner finds that circumstances have changed after the date of the order of the learned City Magistrate, entitling him to receive higher maintenance, it will be open to him to take appropriate steps under Section 489 Cr. P. C. which provides for alteration in maintenance allowance.

10. Learned Advocate for the petitioners contends that under a certain written agreement (Ex. P-1 dated 1-1-1949) executed by the respondent, the latter was bound to pay half of the amount of his pay and half of his mansab towards the maintenance of the first petitioner. As regards that agreement, it is open to the 1st petitioner to enforce it in a Civil Court. The order passed by me is without prejudice to enforce any of her rights under the said agreement in a competent Civil Court.

11. In the result, this revision is dismissed.


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