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Banabibi Sikandarkhan and anr. Vs. Sikandarkhan Umarkhan and anr. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in1983CriLJ1382; (1983)2GLR1098
AppellantBanabibi Sikandarkhan and anr.
RespondentSikandarkhan Umarkhan and anr.
Excerpt:
- - the petitioner-wife alleged that the opponent-husband was staying at village palej and carrying on business as well as doing service in railway and was earning about rs. the behaviour complained of by the wife may be perfectly legal and even permissible under per sonal law of the husband. no self-respecting woman would like that her husband may contract a second marriage if second, third or even fourth marriage is permissible under mohmedan law a mohmedan male may indulge in that luxury. it clearly provides that if a husband contracts second marriage or keeps a mistress that itself will be a sufficient ground for his wife's refusal to live with him. thus it is clear that the approach adopted by the courts below is clearly erroneous and it has resulted into miscarriage of justice......by the husband is believed, would it not be a sufficient ground for wife to stay separate and claim maintenance from husband ?3. both the courts below proceeded on. the footing that because opponent-husband belonged to mohmedan community and as the mohmedan law permits a mohmedan male to keep four wives at a time this ground of second marriage cannot be treated as a reasonable ground for staying separate and claim maintenance with utmost respect for the learned magistrate and the learned extra asst. sessions judge who decided the present case, i express my inability to agree with them if the view taken by the courts below is accepted then it would mean that a particular type of conduct or behaviour which may be permissible under personal law of a party cannot be set up as a ground.....
Judgment:

A.P. Ravani, J.

1. Petitioner No. 1 is the wife of opponent No. 1, who claimed maintenance for herself and for minor son born out of the wedlock between the parties. The marriage of petitioner No. l and opponent No. 1 took place some time in' the . year 1975 according to the Mohmedan law and customs at village Garadi Taluka Sinor. District-Vadodara. The petitioner-wife alleged that the opponent-husband was staying at village Palej and carrying on business as well as doing service in Railway and was earning about Rs. 1,500 per month. That after the marriage, she lived with the opponent-husband but some time thereafter she was severely beaten and driven out. Again after some time she had gone to live with the opponent-husband but she was driven out this time also. Minor son, on whose behalf also maintenance is claimed was born on June 17, 1976. The application for maintenance under S. 125 of the Criminal P C. was filed on July 23. 1979. The trial court rejected that application by its order dated May 26. 1981. Being aggrieved by that order the petitioner-wife preferred Criminal Revision Application No. 63 of 1981 in the court of Extra Assistant Sessions Judge. Vadodara. The learned Extra Assistant Sessions Judge by his order dated Nov. 26. 1981 held that minor son was entitled to maintenance at the rate of Rs. 50 per month. But he confirmed the judgment and order of the trial court rejecting the claim of maintenance of the petitioner-wife. Hence this special criminal application by petitioner-wife.

2. Both the courts below to say the least, have adopted a perverse approach while considering the' evidence of the petitioner-wife The petitioner-wife did state in her deposition that she was being beaten and driven away since the opponent-husband wanted to marry again. The petitioner-wife did give the details with regard to the second marriage. She did say that the opponent-husband had married one Bai Jubeda. Her deposition regarding second marriage has not been challenged at all in the cross-examination and therefore there was no reason why this part of her evidence should not have been believed by the courts below. As a matter of fact, the trial court did believe this position. The learned Extra Asst. Sessions Judge has. erroneously not believed this part of the deposition of the petitioner-wife inasmuch as he could not have reappreciated the evidence in revision. Once the fact of second marriage by the husband is believed, would it not be a sufficient ground for wife to stay separate and claim maintenance from husband ?

3. Both the courts below proceeded On. the footing that because opponent-husband belonged to Mohmedan community and as the Mohmedan Law permits a Mohmedan male to keep four wives at a time this ground of second marriage cannot be treated as a reasonable ground for staying separate and claim maintenance With utmost respect for the learned Magistrate and the learned Extra Asst. Sessions Judge who decided the present case, I express my inability to agree with them If the view taken by the courts below is accepted then it would mean that a particular type of conduct or behaviour which may be permissible under personal law of a party cannot be set up as a ground for claiming maintenance. The obvious consequence of the aforesaid proposition would be that a husband belonging to Hindu community may keep a mistress or a concubine with him and say that law does not prohibit him from keeping a mistress and or a concubine and therefore this cannot be a ground for his wife to stay separate and claim maintenance. This would obviously be absurd and such an argument cannot be sustained even for a moment for the simple reason that conjugal house cannot be maintained and fun smoothly unless both the spouses act with self-restraint and have respect for the feelings of each other. In matrimonial relations it is expected of both the spouses to behave in such a fashion that one's behaviour or conduce does not become an irritant, or a source of mental agony to another. Having Fegard to the dominating position of male in the Indian Society, it should be all the more necessary for husband to see that he behaves in such restrained fashion that his behaviour and conduct does not prove to be a source of mental agony to his wife. The behaviour complained of by the wife may be perfectly legal and even permissible under per sonal law of the husband. But if such behaviour proves to be an irritant to the wife or it becomes a source of menta agony then the same can surely be made a ground for staying separate and claiming maintenance. No self-respecting woman would like that her husband may contract a second marriage If second, third or even fourth marriage is permissible under Mohmedan law a Mohmedan male may indulge in that luxury. At the most he may not be liable for' offence of bigamy. But if such a behaviour proves to be an irritant to his wife and if the same becomes a source of mental agony to her. he cannot take shelter under his personal law and say that he is not liable to pay maintenance to his wife. In a given case Mohmedan wife would surely be entitled to live separate and claim maintenance solely on the ground that the very idea of contracting second marriage by her husband is abhorrent to her mind and therefore the second marriage by her husband causes mental agony and cruelty to her. In such a situation husband cannot take shelter under his personal law and claim immunity from paying maintenance to his wife.

4. In this connection reference may be made to Explanation to S. 125 of the Cr. P. C which reads as follows:--

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

This explanation occurs below sub-section (3) of Section 125 of the Cr. P.C. The Sub-section (3) of Section 125 provides for issuance of warrant in case the order passed by the Magistrate is not. complied with without sufficient cause by the person concerned. However, this provision made by the Legislature gives an indication of the intention of the Legislature. It clearly provides that if a husband contracts second marriage or keeps a mistress that itself will be a sufficient ground for his wife's refusal to live with him. There is no reason why the same principle and logic be not made applicable even at the initial stage of the proceedings for maintenance. Hence, even at, the initial stage such a ground will be sufficient reason for the wife to stay separate and claim maintenance from her husband.

5. The father of petitioner No. 1 has also been examined as witness in the case. He has in terms stated that when the petitioner-wife returned to his house, her right hand was fractured. On this point there is no cross-examination. The evidence which has not been challenged at all in cross-examination has got to be believed unless on the face of it, the same is shown to be palpably false. No reason has been advanced by the courts below for not believing the evidence of the father of the petitioner-wife. Thus it is clear that the approach adopted by the courts below is clearly erroneous and it has resulted into miscarriage of Justice. In the facts and circumstances of the case it is clear that the petitioner-wife had reasonable cause for staying separate from her husband and therefore the finding by the courts below with regard to the right of the petitioner-wife to claim maintenance while staying separate is required to be quashed and set aside.


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