K. Sukumaran, J.
1. The appellant in the second appeal - the husband who instituted the suit - admittedly married the respondent-defendant on 18-6-1976. The tragedy in the form of an infantile mortality which befell the child born to them caused friction between the parties and later to untasteful litigations. The wife caused to be sent a notice on 20.2.1978 seeking a divorce. The husband retaliated by his reply dated 15.3.1978, demanding her to come and reside with him. The wife did not relent. The husband married a second time, as well permitted by his personal law. The wife then moved the criminal court for maintenance. Divorce was sought for in civil proceedings. Ultimately divorce was granted by the civil court, and maintenance by the criminal court, at the rate of Rs. 100/- per month invoking Section 125 of the Criminal Procedure Code.
2. The husband then came to the civil court seeking to establish the supremacy of his personal law and emphasising the summary character of the proceedings for maintenance under the Criminal Procedure Code. The prayer in the plant was to set aside the order of the criminal court, and for an injunction restraining the defendant from executing that order. The plea succeeded with the trial court but failed in the appellate court.
3. In a commendable well-discussed judgment, the appellate court referred to the frame of the suit and the substantial character of the reliefs claimed therein. Referring to the decision in Gauri Devi v. Bishwanath : AIR1970All185 , the appellate court held that a civil court has no jurisdiction to set aside an order of a. Magistrate Court granting maintenance under the Criminal Procedure Code, when there was no allegation of fraud as regards the order of the Magistrate. Other judicial decisions including one of this Court rendered by Krishna Iyer, J. in Shahulameedu v. Subaida Beevi 1970 Ker LT 4 were referred to by the appellate court. The husband in this case had no case that the order of the criminal court was obtained by fraud. A divorced wife is also entitled to maintenance. The suit was ultimately dismissed.
4. The limited question which arises in the second appeal is whether the view taken by the appellate court is vitiated by such a substantial error of law as to merit interference in second appeal. I am clearly of the view that there is no such error there is a valid binding order of the criminal court awarding maintenance to the wife. That is perfectly justified on the wording of Section 125. Cr.P.C. a refusal of the wife to live with the husband when the husband has another wife is perfectly justified, for it is so proclaimed by the Parliament. Personal law has necessarily to yield to the will of the Parliament. Many are the anachronisms of such personal law which have been done away with by legislative will.
5. The process had started long time back in India. The Dissolution of the Muslim Marriages Act, 1939, passed 'in order to relieve the sufferings of countless Muslim women', is one such enactment. The following extract from the Objects and Reasons of that Act throws light on the situation which existed then and which led to the legislative intervention:
There is no provision in the Hanafi Code of Muslim Law enabling a married Muslim woman to obtain a decree from the Court dissolving her marriage in case the husband neglects to maintain her, makes her life miserable by deserting or, persistently maltreating her or absconds leaving her unprovided for and under' certain other circumstances. The absence of such a provision has entailed unspeakable misery to innumerable Muslim women in British India.
Fazal Ali, J. while delivering judgment in Zohara Khatoon v. Mohd. Ibrahim : 2SCR910 noted that the amendment of the Criminal procedure Code in 1973 had 'to some extent overruled the personal law of the parties so far as the proceedings for maintenance under Section 125 are concerned.
6. Section 125 does not make any distinction between persons belonging to different religions or castes : 'and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.' (Vide Nanak Chand v. Chandra Kishore AIR 1970 SC 400 : 1970 CriLJ 522.
7. Shahulameedu's case 1970 Ker LT 4 (supra), after detailed discussion, points out the perspective of and the historic background in which the Koranic injunction regarding the personal law permitting a Muslim to have as many as four wives, has to be understood. It is flood to remember that 'Islam has many glorious chapters in History and learned Muslin scholars at Baghdad and Cordova kept burning the torch of knowledge and culture when Europe generally was sunk in darkness.' (India Insistent by Sir Harcourt Butler the English civil servant who spent 38 years of his service in India). Reference has been made in Shahulameedu's case to the views held on that topic by eminent jurists. Such jurists include Ameer Ali (the reputed author of Mohammadan Law). Justice Hidayatullah (as he then was) who wrote introduction to Mulla's Principles of Mohommadan Law, 16th Edition, and A. Yusuf Ali who gave a commentary on the Holy Koran. Shahulameedu's case notes how 'in the true spirit of the Koran, a number of Muslim countries have codified the personal law wherein the practice of polygamy has been either totally prohibited or severely restricted.' The names of the Muslim countries to be remembered in that context are given in the decision. The learned Judge observes:
A keen perception of the new frontiers of Indian Law hinted at in Article 44 of the Constitution is now necessary on the part of Parliament and the Judicature.
Almost a decade and half has floated by after Shahulameedu's case was decided. There has been further studies and discussions.
8. While writing on 'Muslim Women of India' in 1975 Quarratulain Hyder said:
Although the reform of Muslim Personal Law has now become an obvious political issue, the fact remains that some of the antiquated by-laws must be modified and discarded within the framework of the five major Schools of the Shariat.
(See 'Indian Woman' edited by Devaki Jain. Publications Division, Government of India. Page 199).
9. Almost contemporaneously, the National Committee on the Status of Women (1971-74), reported:
While the desirability of reform in Muslim Law is generally acknowledged and polygamy has been prohibited in most other Muslim countries, the Government of India has taken no steps in this direction, on the ground that public opinion in the Muslim community does not favour this change. Ignoring the interests of Muslim women is denial of equality and social justice : and therefore there can be no compromise on the basic policy of monogamy being the rule for all communities in India.
(See Status of Women in India, the Indian Council of Social Science Research, 1975 page 41).
10. It is interesting in this context to remember the influence of Judges and Courts in modifying many concepts of the Muslim Law which held the field during earlier days. The observation of the Privy Council in Fatuma Binti Mohd. Bin Salim Bakhshuwen v. Mohd. Bin Salim Bakhshuwen (1952) AC 1, is worth recalling in this context:.the law of Wakf as originally understood by the commentators and Mohammedan jurists has in India since the commencement of the latter half of last century been profoundly modified by the decisions of the Privy Council. A study of the question shows that while the Mohammedan law, uninfluenced from outside sources, permitted purpetuities and the erection of wakfs for family aggrandizement solely, the influence of English Judges and of the Privy Council has gradually encroached on this position, until decision given quite recently have decided that such wakfs are illegal, and it has now been clearly established that a wakf for family aggrandizement or security, the ultimate, beneficiaries of which are the poor, whether mentioned by name, or supplied by implication, are invalid.
It is unnecessary to express more on this aspect at this stage.
11. As for the present case, the construction of the frame of the suit by the appellate court and the interpretation placed by it on the relief claimed therein, are net erroneous at all. Consequently there is no scope of appeal to this court.
12. I dismiss the second appeal.