S. Murtaza Fazl Ali, C.J.
1. This is an application against an order passed by the Chief Judicial Magistrate Srinagar allowing the application of the applicant wife and granting a maintenance of Rs. 30/- per month to her and a further maintenance of Rs. 20/- to petitioner No. 2, the infant child.
2. The applicant's case before the trial court of the CJM was that she was the legally wedded wife of the petitioner husband and had a child about was years old, that the petitioner had been ill-treating her and had ultimately driven her out of the house after snatching away all her ornaments and assaulting her and since then he liad been negligent and paying nothing to tier for her maintenance as also that of her infant child.
3. The application was resisted by the petitioner husband on the ground that as the wife refused to live with the husband or to maintain matrimonial relations with him, he was forced to contract a second marriage and the wife simply refused to live with him, although the husband had offered to maintain her.-
4. The trial Court, after examining ;a number of witnesses, accepted the case of the wife and granted maintenance as indicated above.
5. The main ground taken by the trial court as also by the learned Sessions Judge to whom a revision was preferred was that as the petitioner husband had married a second wife, the respondent Noora Bibi was fully justified in refusing to live -with him in view of the amended provisions of Section 488 of the Criminal P.C. The Court below also held that the husband had sufficient means to pay maintenance to the wife and the child. The Sessions Judge did not find any ground to interfere and dismissed the application of the husband and lience this revision.
6. Appearing for the petitioner husband Mr. Wani has raised two important points of law before us. In the first place he submitted that as the parties were Mo-'hammedans, the proviso to Sub-section (3) of Section 488 of the Criminal P.C. as amended by Act 1 of 1960 would not apply and the personal law would prevail. In other words it was contended that since under the personal law a Mohammedan, is -entitled to marry more than one wife, the mere fact that the husband had taken a second wife would not entitle the respondent Noora Bibi to refuse to live with him. In our opinion this argument is wholly untenable. The proviso to Section 488 (3) of the Criminal P.C. runs as under:-
If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be a just ground for his wife's refusal to live with him.
This is a statutory provision containing the law of the land and exists independent of the personal law of the parties. The personal law of the parties can be invoked only for the purpose of determining the conjugal relationship between the wife and the husband and no farther than that, In the instant case it is not disputed that the respondent Noora Bibi was the legally wedded wife of the petitioner husband. The question of the applicability of Section 488, therefore cannot be assailed on the ground that under the Mohammedan Law a person can marry more than one wife. It seems to us that the provisions of Section 488 exist independent of the personal law or custom governing the parties. The right to maintenance' Under Section 488 is a distinct and separate statutory right which has been conferred on the wife of a person irrespective of the caste, creed, nationality or religion to which he belonged. All that is necessary for the application of Section 488 is that there should be neglect on the part of the husband and that the marriage should be a valid one according to the personal law of the parties. This question came up for consideration as far back as 1882 when a Division Bench of the Calcutta High Court in re, Luddun Sahiba, (1882) ILR 8 Cal 736 = 11 Cal LR 237 clearly held that a right to maintenance did not depend upon the personal law of the individual. That was a case of a Mutta marriage under the Muham-medan Law and their Lordships observed as follows:-
As to the first point, there is no dispute that, according to the Sheea Law, a mutta wife is not entitled to maintenance. But it is contended by Mr. Amir Ali that this provision of the Sheea Law cannot interfere with the statutory right to maintenance given by Section 536 of the Code of Criminal Procedure.
We think that this contention is correct. A right to maintenance depending open the personal law of the individual, is a right capable of being enforced, and properly forms the subject of a suit in a civil court. But we think that this right, depending upon the personal law of the individual, is altogether different from the statutory right to maintenance given by Section 536 in every case in which a person, having sufficient means, neglects or refuses to maintain his wife.
To the same effect are the observations of a Division Bench of the Bombay High Court in Ranchhoddas Narottamdas v. Emperor A.I.R. 1949 Bom 36, 37 where a Division Bench observed as follows:-
The right to maintenance under this section is a distinct statutory right irrespective of the personal law of the parties. Section 488 provides only a speedy remedy against starvation for a deserted wife or a child. It provides for a summary procedure which docs not: cover entirely the same ground as the civil liability o a husband or father under his personal law to maintain his wife or child.
Similarly in Nalini Ranjan v. Kiran Rani : AIR1965Pat442 it was pointed out by a Division Bench that Section 488 provided for a speedy remedy and was independent of the civil liability of a husband under his personal law. In this' connection their Lordships observed as follows:-
The right of maintenance Under Section 488 was irrespective of the nationality or creed of the parties, the only condition precedent to the possession of that right being in the case of a wife the acceptance of the conjugal relation. Further, Section 488 provided for only a speedy remedy and a summary procedure before; a Magistrate against starvation of a deserted wife or child. This section did not cover the civil liability of a husband or a father under his personal law to maintain his wife and children.
We might mention here that the case (Supra) was noticed by their Lordships of the Supreme Court in Nanak Chand v. Chandra Kishore : 1970CriLJ522 and the observations made by their Lordships of the Patna High Court were fully endorsed by their Lordships of the Supreme Court who made the following observations:-
Section 488 provides a summary remedy and' is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties. Recently the question came before the Allahabad High Court in Ram Singh v. State : AIR1963All355 , before the' Calcutta High Court in Mahabir v. Gita Roy, ]962 (2) Cri LJ 528 (Cal) and before the Patna High Court in Nalini Ranjan v. Kiran Rani : AIR1965Pat442 . The three High Courts have, in our view, correctly come to the conclusion that Section 4 (b) of the Maintenance Act does not repeal or affect in any manner the provisions contained in Section 488, Criminal P.C.
To the same effect are the decisions in : AIR1959All767 and : AIR1971Ker22 .
7. For the reasons given above, therefore, the argument of the learned Counsel for the petitioner husband that the proviso to Section 488 should be ignored as it is inconsistent with the personal law of the parties is hereby overruled. It is not disputed that the petitioner husband had taken a second wife and this was an additional reason why the wife was not prepared to live with him. The proviso (Supra) -has now become a part and parcel of Section 488 and confers a statutory right on the wife to refuse to live with her husband if he has taken a second wife, and in view of this proviso the magistrate was fully justified in granting the maintenance.
8. It was next contended by Mr. Wani that the proviso to Section 488 is clearly violative of Article 25 of the Constitution of India which affords religious freedom to all sects. The argument was that under the Mohammedan law the husband is entitled to marry upto four wives and the proviso by entitling the wife to maintenance interferes-with this right, which is guaranteed by Article 25 of the Constitution of India. Article 25 runs thus:-
Subject to public order, morality and-health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. xx xx xx
9. It would appear that even under the Mohammedan Law a husband is allowed to marry more than one wife provided he can do equal justice to all. In the present day of increasing needs of the society and serious economic pressures it is impossible to believe that a person would be able to-do full and equal justice to two or more wives at the same time. Furthermore the petitioner has been earning Rs. 500/- per month and it would be difficult for him to maintain one wife much less more than one. Moreover the proviso to Section 488 does not in any way interfere with the right of a husband to marry more than one wife; if only provides that should the husband choose to indulge in such a luxury he should; be prepared to maintain his first wife if she is unwilling to live with him because of the second wife. This provision seems to us to j, be fully consistent with the spirit and tenor j; of the Mohammedan Law which enjoins on the husband to accord an equal treatment to the wives he marries. The proviso does not in any way prohibit the husband from contracting a second marriage. In these circumstances we are satisfied' that the proviso is not violative of Article 25 of the Constitution of India. This contention is therefore also negatived.
10. It was next contended by Mr. Wani that as the applicant wife also earns Rs. 100/- a month as a washer woman no maintenance should be granted to her. This, however, is a question of fact which should' have been raised by the husband in his objection before the trial court in which case the wife would have been able to meet the same. In these circumstances we would not allow the husband petitioner to raise this point at this stage.
11. Lastly it was submitted that the-amount of the maintenance awarded by the Court is excessive. It appears that one of the witnesses Mohd. Sidiq clearly stated that the income of the petitioner husband was about Rs. 500/- per month and the trial court granted the maintenance taking into account the means of the husband. We do hot find any reason to interfere with the discretion exercised by the trial court on this point.
12. The result is that all the contentions raised by the petitioner, fail. The application is therefore dismissed and the rule is discharged.
Mian Jalal-Ud-Din, J.
13. I agree.