1. This is a reference under Section 438, Criminal P.C. by the Second Additional Sessions Judge, Bhopal, with the recommendation that the order dated 20-11-1954 of the Sub-Divisional Magistrate, Bhopal, ordering Abdulla Khan to pay Rs. 15/- per month as maintenance to his first wife Sm. Chandni Bi, be set aside. Both Sm. Chandni Bi and Abdulla Khan are absent and the case was taken up with the assistance of the Government Advocate.
2. Sm. Chandni Bi had moved an application under Section 488, Criminal P.C., on the ground that her husband Abdulla Khan had sent her away to the house of her father after beating her and did not maintain her for the three years prior to the moving of the application. She claimed maintenance at the rate of Rs. 25/- per month.
Abdulla Khan opposed the application and blamed his father-in-law for not sending his daughter. He also said that he remarried when his first wife was not sent back.
3. The learned Magistrate allowed the application of the ground that Sm. Chandni Bi had the right to refuse to live with her husband in view of the fact that he had married again and was living with the second wife.
4. The learned Sessions Judge has made the reference as in his opinion, the amendment to Section 488 introduced by Section 2, Code of Criminal Procedure (Amendment) Act, 1949, (Act 9 of 1949) was applicable only when the enforcement of the order under Sub-section (1) was being sought for and not when an order was being passed under Sub-section (1).
5. I am not inclined to agree with this opinion of the learned Sessions Judge. But in view of the repeal of Act 9 of 1949 it is not necessary for me to express any opinion on the above question of law. The clause '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 was added to Sub-section (3) of Section 488, Criminal P.C. under Act 9 of 1940.
The whole of the Amendment Act was repealed by the Repealing and Amending Act of 1932. (Act 48 of 1952). The second clause of Section 4 of the Repealing and Amending Act. 1952, cannot help Sm. Chandni Bi as the obligation or the liability for payment of maintenance month after month, is a recurring one and not one which can be regarded to be an obligation or liability already accrued or incurred as contemplated by the above section.
This clause Will simply authorise Sm. Chandni Bi to claim maintenance upto 2-8-1952 and not thereafter and even such claim is now barred by limitation. Further, after 2-8-1952 she will have no justification to refuse to live with her husband simply because he has contracted marriage with another wife.
6. To avoid any ambiguity in the correct approach to the grant of maintenance under Section 488, Criminal P.C. it may be added that the above rule would be applicable to only Muslim married women and not to Hindu married women, who have seen given a right to separate residence and maintenance in case the husband marries again, under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act 19 of 1946).
Thus only a Hindu married woman can refuse to live with her husband and even then will be en- titled to separate residence and maintenance from her husband if he marries again; but a Muslim woman has no such right and she must submit to the second marriage, unless of course the husband neglects or refuses to maintain her and the children through her. This places the Muslim women under considerable hardship and mental worry but the Counts of Law cannot refuse to give a proper meaning to a provision on the ground of any hardship or injustice which may be done to a party.
The differentiation resulting from the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act 19 of 1946) cannot be said to be discriminatory or repugnant to Article 14 of the Constitution of India as the classification is a reasonable one and is based upon the outlook of persons belonging to the two communities.
The Legislature is reluctant to legislate on religious matters, to which objections may be taken by most of the members belonging to that religion; Consequently, if in these circumstances a law is passed and it is applicable to the followers of only one religion, it cannot be said to be arbitrary or discriminatory.
7. The only evidence which Sm. Chandni Bi, applicant, adduced to prove that her husband had beaten her, consists of the testimony of Sher All and Lal Mian, She did not have the courage to herself appear in the witness-box, nor did she examine her father. Sher Ali and Lal Mian have made contradictory statements, consequently, there is no proper evidence on record to substantiate the allegation that her husband was neglecting or was refusing to maintain her, and the present application under Section 488 is liable to dismissal.
8. The reference is hereby accepted and the order dated 20-11-1954 granting Rs. 15/- per month as maintenance to Sm. Chandni BI is set aside.