Skip to content


Aziz Mohd Vs. Mst. Sayda Begum - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtJammu and Kashmir High Court
Decided On
Judge
Reported in1981CriLJ267
AppellantAziz Mohd
RespondentMst. Sayda Begum
Cases ReferredDeochand v. State of Maharashtra
Excerpt:
- a.s. anand, j. 1. an interesting, though an abstract, question of law that has been referred for decision by a learned single judge is: whether a wife in terms of first proviso to sub-section (3) of section 488 cr. p.c. can refuse to live with her husband and claim separate maintenance from him only on the ground that he has contracted a second marriage as is apparent from the order of reference, the necessity for making the reference arose because of divergence of judicial opinion on the question. some courts have held that the taking of the second wife or keeping of a mistress by the husband is by itself not sufficient for passing an order of maintenance against the husband, unless it is proved that the husband has been guilty of neglect or refusal to maintain his wife. see ishar v......
Judgment:

A.S. Anand, J.

1. An interesting, though an abstract, question of law that has been referred for decision by a learned single Judge is: Whether a wife in terms of first proviso to Sub-section (3) of Section 488 Cr. P.C. can refuse to live with her husband and claim separate maintenance from him only on the ground that he has contracted a second marriage As is apparent from the order of reference, the necessity for making the reference arose because of divergence of judicial opinion on the question. Some courts have held that the taking of the second wife or keeping of a mistress by the husband is by itself not sufficient for passing an order of maintenance against the husband, unless it is proved that the husband has been guilty of neglect or refusal to maintain his wife. See Ishar v. Soma Devi AIR 1959 Punj 295 : 1959 Cri LJ 76; Bela Rani v. Bhupal Chandra : AIR1956Cal134 and Iqbalunnisa Begum v. Habib Pasha : AIR1961AP445 in this connection.

2. A contrary view has been taken in some cases, and it has been held that neglect or refusal, or no neglect or refusal, the husband is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife. This view has been taken in Dewan Singh Wasawa v. Harbans Kaur Dewan Singh , H. Syed Ahmad v. N.P. Taj Begum AIR 1958 Mys 128 : 1958 Cri LJ 1201; Abdul Ghaffar v. Hafiza Khatoon : AIR1968Pat307 and in Biro v. Behari Lal AIR 1958 J & K 47 : 1958 Cri LJ 1481 wherein a Division Bench of this Court expressly dissented from the view expressed in : AIR1956Cal134 (supra) and held that a wife would be entitled to maintenance merely on the ground that the husband had contracted a second marriage and that 'it was not proper to hold that in spite of the proof of second marriage of the husband, a wife claiming maintenance was still required to satisfy the conditions laid down in Clause (I) of Section 488 Cr. P.C. namely, to prove neglect or refusal to maintain by the husband.

3. Reconciling these two directly opposite views, it has been held by some courts that there can be no manner of doubt that under Sub-section (1) of Section 488 Cr. P.C. before a Magistrate can pass an Order, he must be satisfied in regard to two matters namely: that the husband has sufficient means and that he has neglected or refused to maintain his wife. Where the husband offers to maintain his wife on the condition of her living with him and the court finds that the offer has been rejected by the wife on the ground that the husband has contracted a second marriage, it would be aiust ground' for her to stay away and still claim maintenance. Reference in this connection may be made with advantage to Smt. Ranjit Kaur v. Dr. Avtar Singh AIR 1960 Punj 221 : 1960 Cri LJ 516 and Govindram Narandas v. Ratanbai Nathuram AIR 1956 Saurashtra 105 : 1956 Cri LJ 1437, where Chief Justice Shah, opined that theoretically sneaking where a wife is living away 'from the husband on the ground that the husband has contracted a second marriage, an initial neglect or refusal by the husband is no doubt necessary to be made out in order that the Magistrate can maintain the wife's application for maintenance, but 'in practice no real difficulty will be felt because wife will be justified in living away from the husband and if the husband does not maintain her separately then his 'failure will amount to 'neglect or refusal' entitling the wife to maintenance.'

4. It appears that the conflict of judicial opinion has arisen because of the location of the first proviso to Sub-section (3) of Section 488 Cr. P.C.

5. It would be, therefore, advantageous to first notice the relevant provisions of Section 488 Cr. P.C.

488. Order 'for maintenance of wives and children. - (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the Chief Judicial Magistrate or any other Judicial Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance 'for the maintenance of his wife or such child, at such rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.

(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.

(3) Enforcement of order - If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment if sooner made: 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 and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.

(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).

Provided further, that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.

(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.

(5) On proof that any wife in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order....

6. A plain reading of the Section suggests that a wife seeking maintenance under Sub-section (1) has to prove 'neglect or refusal' on the part of the husband who has sufficient means to maintain her. No order can be passed against a husband even if he has sufficient means unless 'neglect or refusal' on his part to maintain the wife has been brought home to him. 'Neglect or refusal' on his part may be express or implied or proved by his conduct. Once, however, the Magistrate has found 'neglect or refusal', the wife would be entitled to an order of maintenance unless the husband is able to establish any of the defenses indicated in Sub-section (4) or where he does not have sufficient means to pay the maintenance.

7. Mr. S. P. Gupta, learned Counsel for the petitioner, has argued that first proviso to Sub-section (3) of Section 488 Cr. P.C. is a proviso to Sub-section (3) only and not to Sub-section (1) of Section 488 Cr. P.C. and therefore, the court, at the stage of consideration of the application of the wife for maintenance under Section 488(1) Cr. P.C. has no. Jurisdiction to consider the question whether or not the husband has contracted a second marriage and that the question of the effect of second marriage of the husband would be a relevant consideration only at the stage of enforcement of the order of maintenance under Sub-section (3). In the alternative it is argued that no court is entitled to order maintenance only on the ground of the remarriage of the husband. Mr. Gupta has submitted that the view expressed in AIR 1958 J & K 47 : 1958 Cri LJ 1481 needs reconsideration.

8. On the other hand, Mr. Nargotra has argued, that the wife has a statutory right to live away from the husband if he has contracted a second marriage and matter can be taken into consideration by the Magistrate deciding the claim petition of the wife under Sub-section (1) of Section 488 Cr. P.C. as, argues the learned Counsel without applying his mind to this aspect of the case, the enquiry under Sub-section (1) of Section 488 Cr. P.C. would be incomplete. According to Mr. Nargotra, the remarriage of the husband, ipso facto, would entitle the wife to an order of maintenance.

9. Indeed settled rule of interpretation of a statute is that the proviso to a particular provision of the statute only embraces the field which is covered by that particular provision and carves out an exception to the provision to which it has been enacted as a proviso and to no other provision (See AIR 1955 SC 765). In this view of the matter from the location of the first proviso to Sub-section (3) it is evident that it is a proviso to Sub-section (3) only and to no other Sub-section or to Section 488 Cr. P.C. as a whole. No doubt the word 'section' is used in the proviso but the mere use of that expression would not make it a proviso to the entire Section 488 Cr. P.C. because the legislature in its wisdom inserted this proviso to sub-s. (3) only, intending thereby that it should be a proviso to Sub-section (3) only and not Sub-section (1) or the entire Section 488 Cr. P.C. This view is further strengthened by the fact that the proviso that immediately follows it relates definitely to Sub-section (3) alone and not to Sub-section (1). The necessity for adding the proviso to Sub-section (3), it appears, arose because the legislature thought it necessary, to enable the husband to make yet another offer to the wife to maintain her, on her living with him, at the stage of enforcement of the order under Section 488(1) Cr. P.C. and at the same time giving a statutory right to the wife to live separately, if the husband has contracted a second marriage or taken a mistress. In the absence of this right, at the stage of enforcement of the order under Sub-section (3) of Section 488 Cr. P.C. the Magistrate had no jurisdiction to consider the offer of the erring husband to maintain his wife on the condition of her living with him howsoever, bona fide the offer of the husband might have been, after an order of maintenance has been made. The Magistrate was duty bound to enforce the order of maintenance. The only remedy available to the husband was to move under Sub-section (5) for the cancellation of the order, but not without first paying the maintenance awarded or suffering the penal consequences envisaged in Sub-section (3). It was to avoid this cumbersome process that the legislature introduced the proviso, so that even at the stage of enforcement, an enquiry could be made by the Magistrate into the bona fide or otherwise of the offer of the husband to take back the wife and maintain her on the condition of her living with him. The para added to the first proviso was meant to give a statutory right to the wife to live away from the husband on the ground of his remarriage, irrespective of the personal law of the parties. Since, without the proviso such an enquiry could not be made, at the stage of the enforcement of an order of maintenance, the proviso was incorporated keeping in view the object of the provisions of Section 488 Cr. P.C. which aim at preventing the wife to become a destitute, on account of the 'failure of her husband to maintain her. In the presence of Sub-section (4), there was no necessity to extend the said proviso to Sub-section (1) also. Sub-section (4) governs the whole section, including Sub-section (1) and, therefore, no maintenance can be granted to a wife under Sub-section (1) if the Magistrate finds, during an enquiry, that the wife is living in adultery or for no 'sufficient reason' has refused to live with her husband, or where she and her husband are living separately by mutual consent. if the Magistrate is satisfied that the wife, living separately, had a 'sufficient reason' to refuse to live with the husband, he would issue an order of maintenance in spite of her refusal, provided, however, 'neglect or refusal' on the part of the husband to maintain the wife has been established. Of course, the proviso to Sub-section (3) does not in terms apply to Sub-section (1) of Section 488 Cr. P.C. but the principle contained in the proviso stands engrafted in Sub-section (4) itself which governs Sub-section (1) also. Though in the proviso to Sub-section (3), the expression used is 'just ground' and the expression used in Sub-section (4) is 'sufficient reason' but in my opinion, what is a 'just ground' for the application of proviso to Sub-section (4) would also be a 'sufficient reason' under Sub-section (4) and a Magistrate considering the claim of the wife under Sub-section (1) would be under an obligation to enquire whether or not the wife has a 'just ground' or a sufficient reason' to live separately from the husband and claim maintenance.

10. Although the proviso governs only Sub-section (3) the provision that remarriage by the husband is a 'just ground' for the wife's refusal to live with him lays down a general principle, which must be borne in mind when it is to be enquired whether the wife's refusal to live with her husband is for any 'sufficient reason' within the mean-of Sub-section (4). A 'just ground' for refusal to live with the husband must necessarily be a 'sufficient reason' also. A wife who refuses to live with her husband on account of his remarriage is, therefore, not prevented by Sub-section (4) from claiming maintenance allowance under Sub-section (4), whether she should get it or not is of course a different question to be decided by the Magistrate on the facts of each ease. A separate enquiry, which is made into the offer of a husband to maintain the wife, when such an offer is made during the execution proceedings under Sub-section (3), is not necessary when such an order is made during the proceedings under Sub-section (1). Cases may arise where a man may marry a second time and still not 'refuse' or 'neglect' to maintain his wife. In that event, she can have no cause of action to claim maintenance. Where during an enquiry under Sub-section (1) a husband offers to take the wife and maintain her but the wife refuses to live with the husband, it is the duty of the court to enquire whether there is any 'sufficient justification' for the wife not living with the husband and claiming maintenance. Thus though the proviso to Sub-section (3) is a proviso to that Sub-section only, an enquiry into the offer of the husband to maintain his wife, is also contemplated at the stage of the making of an order under Sub-section (1). Remarriage or no remarriage, before a wife can successfully claim maintenance, she must establish that the husband has, 'neglected' or 'refused' to maintain her because the remarriage of the husband only affords a statutory ground to the wife to live separately and yet claim to be maintained by the husband. The reliance by Mr. Nargotra on Deochand v. State of Maharashtra. AIR 1974 SC 1488 : 1974 Cri LJ 1089 is misplaced. Though, the observations in the judgment do support the contention of the learned Counsel, that the re-marriage by the husband would ipso facto entitle a wife to claim maintenance. However, the facts of the above case show that 'neglect' on the part of the husband had been established therein and maintenance was awarded not only because the husband had re-married during the subsistence of the first marriage. The facts of the case in brief were: The wife filed an application under Section 488 Cr. P.C. claiming maintenance on two grounds (1) that the husband was neglecting and refusing to maintain her and (2) that he had contracted a second marriage. The trial Magistrate dismissed the application holding that though the husband had contracted a second marriage, he was not refusing or neglecting to maintain the applicant. A revision was preferred by the wife before the Sessions Judge, who took the view that the mere fact that the appellant had contracted a second marriage, during the subsistence of his marriage with the applicant, was sufficient to entitle the wife to an order of maintenance. He accordingly made a reference to the High Court recommending the setting aside of the order of the trial Magistrate and for payment of maintenance. The reference was accepted by the High Court and maintenance was awarded in favour of the wife. The husband was, however, granted leave to file an appeal in the Supreme Court under Section 134(1)(c) of the Constitution. Dismissing the appeal of the husband, their Lordships of the Supreme Court observed:

As the second respondent was justified in refusing to live with the appellant, the latter was under a legal obligation to maintain her. As he has neglected to maintain her the High Court was justified in passing the order under appeal.

11. Thus, it is obvious that the Supreme Court upheld the order of maintenance, not on the ground of remarriage of the husband alone but because of the proof of 'neglect' on the part of the husband to maintain his wife. The remarriage of the husband was considered only as a 'just ground' for the wife's refusal to live with the husband. In view of this Supreme Court judgment, it can, therefore, be said that the law laid down in AIR 1958 Mys 128: 1958 Cri LJ 1201 : AIR 1958 J & K 47 : 1958 Cri LJ 1481 : AIR 1962 Punj 247 : 1962 1 Cri LJ 755 (1) : AIR 1968 Pat 307 : 1968 Cri LJ 1110 (2): is no longer good law and that the remarriage of the husband, ipso facto, would not entitle a wife to claim maintenance without establishing 'neglect' or 'refusal' on the part of the husband to maintain her. The remarriage of the husband would legally justify the wife to live separately from the husband and reject the offer of the husband, to go and live with him, and the refusal on this ground would not absolve the husband of his liability to maintain the wife and his 'refusal or neglect' to do so would result in an order of maintenance being passed.

12. Thus, my answer to the question referred to the Bench is: that the remarriage of the husband, ipso facto, would not entitle a wife to claim maintenance without further establishing, expressly or impliedly, 'neglect or refusal' on the part of the husband to maintain her, because proof of 'neglect or refusal' on the part of the husband to maintain his wife, is the sine qua non of an order under Section 488 Cr. P.C. The case shall now be listed before the learned single Judge for its disposal on merits.

Mufti Baha-Ud-Din Farooqi, Ag. C.J.

13. Section 488 Cr. P.C. is a welfare legislation intended to prevent neglected wives and children from starvation, vagrancy, and destitution. This section makes it obligatory on the husband to maintain his wife and on the father to maintain his children. The obligation is not new. The generally accepted principle under the Muslim Law and, I believe, under other personal laws, is that the maintenance of one becomes obligatory upon another by three causes: marriage, relationship and ownership. Maintenance of a child is due from his father while the child is unable to maintain himself. Maintenance is due to the wife, lawfully married, from her husband because maintenance is compensation for her confinement and such confinement is for the benefit of her husband. She is required to live under the same roof and share the bed with her husband and also be faithful to the marriage bond. She is entitled to maintenance from her husband so long as she observes these conditions and not otherwise. This section has given effect to this principle by providing that a husband will be absolved of his obligation under this section towards his wife on proving - (1) that she is living in adultery; or (2) that, without sufficient reason, she is living separately from him, or, (3) that she is living separately from him by agreement.

14. On the observations made above, which broadly reflect the object and scheme of Section 488 Cr. P.C. it is not difficult to see that the first proviso to Sub-section (3) must be considered as a proviso as much to Sub-section (1) as to Sub-section (3). For, the proviso speaks of a Must ground'. What is a just ground must necessarily be construed as a sufficient ground. Therefore, any ground which is a 'just ground' for the wife's refusal to live with her him under Sub-section (3) must be treated to be a 'sufficient reason' for such refulsal under Sub-section (1). On principle, too, what is a good ground for collecting separate maintenance under Sub-section (3) must be a good ground for levying such maintenance under Sub-section (1).

15. These considerations apart, there is intrinsic evidence in Sub-section (3) to show that the first proviso is a proviso as much to Sub-section (1) as to Sub-section (3). The proviso speaks of 'this section' and not of 'this Sub-section'. On its terms, therefore, it is a proviso to the section and not to Sub-section (3) only. The location of the proviso would not affect its terms which must necessarily be given their full force and effect. It has. however, been contended that the words 'such person' used in the proviso have reference to the person against whom an order of maintenance has been made. On this interpretation we are required to read the words 'make an order under this section' used in the proviso as if the Legislature had used the words 'make an order under this Sub-section'. It is a settled rule of construction that a statute cannot be so read as to alter its language unless of course the language is ambiguous and not free from doubt. The language of the proviso does not, however, admit of any ambiguity. I am therefore inclined to hold that the first proviso to Sub-section (3) is a proviso as much to Sub-section (1) as to Sub-section (3). According to this proviso if the husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be a just ground for the wife's refusal to live with him. Reading the proviso with Sub-section (1) the effect is that where a wife proves that she lives separately from her husband on the ground that her husband has taken a second wife or that he has kept a mistress, she will be entitled to the grant of separate maintenance unless, of course, the husband has alleged and proved that he has provided such maintenance to her. This is apparently the view expressed by this Court in the case reported as AIR 1958 J & K 47 : 1958 Cri LJ 1481. The view obviously does not need any reconsideration.

16. In Bai Tahira v. Ali Hussain Fissali Chothia AIR 1979 SC 362 : 1979 Cri LJ 151 the wife filed an application for maintenance under Section 125 of the Cr. Procedure Code, 1973 which corresponds to Section 488 Cr. P.C. prevailing in our State. She proceeded on the footing that she was still a wife while the respondent-husband rejected the status and asserted that she was a divorcee and therefore ineligible for maintenance. The Magistrate who tried the petition held that the appellant was a subsisting wife and awarded maintenance. On appeal the Sessions Judge set aside the order and dismissed the petition. The wife filed a revision petition in the High Court, but without success. She took the matter to the Supreme Court. Dealing with the case, the Supreme Court inter alia observed:

Section 125 requires, as a sine qua non for its application, neglect by husband or 'father. The Magistrate's order proceeds on neglect to maintain; the Sessions Judge has spoken nothing to the contrary; and the High Court has not spoken at all. Moreover, the husband has not examined himself to prove that he has been riving allowances to the divorced wife. His case, on the contrary, is that she has forfeited her claim because of divorce and the consent decree. Obviously, he has no case of non-neglect. His plea is his right to ignore. So the basic condition of neglect to maintain is satisfied. In this generous jurisdiction a broader perception and appreciation of the facts and their bearing must govern the verdict not chopping little logic or thinking with burden of proof.

17. On these observations it is clear that neglect to maintain must be assumed where the husband does not plead and prove that he has provided maintenance for his wife and on the other hand, pleads forfeiture, which he fails to prove. Thus the observations lend support to the view expressed by me above.

18. In the circumstances my answer to the question referred would be that a wife would be entitled to the grant of separate maintenance on proof of the fact that her husband has taken another wife during the subsistence of their marriage unless, of course, the husband has alleged and proved that he has been providing such separate maintenance for her.

I.K. Kotwal, J.

19. The question which has been referred to the Full Bench for its opinion is whether a wife can refuse to live with her husband and claim separate maintenance 'from him under Section 488(1) Cr. P. Code on the ground that he has taken a second wife.

20. The scheme of this section shows that if a husband despite having means neglects or refuses to maintain his wife, she may approach a Magistrate for an order of maintenance, and the Magistrate on proof of such neglect or refusal may pass an order granting maintenance in her favour. This order shall be passed by him under Sub-section (1). This Sub-section has, however, to be read along with Sub-section (4), which provides that a wife who is living in adultery, or refuses to live with her husband without sufficient reason, or is living separately by mutual consent, shall not be entitled to any maintenance. Cases are conceivable where an application is made by a wife, and the defence set up by the husband is either that she is living in adultery, or is living separately by mutual consent of the parties, or that he is prepared to maintain her in case she lives with him. The Magistrate shall make an enquiry into these allegations, and on being satisfied, either that the wife is leading an adulterous life, or is living separately by mutual consent of the parties, or has spurned her husband's offer to live with him without sufficient cause, shall dismiss her application; proof of neglect or refusal on his part to maintain her notwithstanding. Cases are also conceivable where the wife after an order of maintenance has been passed in her favour, starts leading an adulterous life, or the parties agree to part company with each other, or the husband offers to maintain her on the condition that she lives with him, and she declines the offer without sufficient reason. The Magistrate is bound to make an enquiry in regard to these allegations, and if satisfied about their truth, shall cancel the order granting maintenance in her favour. Sub-section (4) is applicable to a case which is at a stage where an order granting maintenance is yet to be passed by the Magistrate under Sub-section (1). Sub-section (5) on the other hand, applies to a case in which an order granting maintenance has already been passed in favour of the wife. Clearly, therefore, a husband has a right not only to resist his wife's claim for granting maintenance by making an offer to maintain her on the condition that she lives with him, but he has also a right to resist the order of maintenance itself by making a similar offer to her.

21. Sub-sections (1) and (4), strictly speaking, do not make mention of the husband's remarriage as a ground for his wife's refusal to live with him, though the explanation to the first proviso to Sub-section (3) specifically says so. This omission has indeed created a conflict in judicial opinion as to whether or not the husband's remarriage can constitute a sufficient cause for the wife's refusal to live with him, and claim separate maintenance under Sub-section (1) of Section 488. One view is that under Sub-section (1) a wife is not entitled to any maintenance, so long as the husband is willing to maintain her. The first proviso to Sub-section (3), entitling a wife to refuse to live with her husband on account of his second marriage, according to this view, not being a proviso to Sub-section (1) also, the wife so refusing, even when her husband is prepared to maintain her, cannot be said to have been neglected or refused maintenance by him, which is a condition precedent lor granting maintenance in her favour under Sub-section (1), for the neglect and refusal to maintain her in such circumstances will be an outcome of her own volition. This view has been taken in Ishar v. Soma Devi AIR 1959 Pun.i 295 : 1959 Cri LJ 767, Dewan Singh Wasawa Singh v. Harbans Kaur Dewan Singh AIR 1962 Punj 247 : 1962 (1) Cri LJ 755 (1), Smt. Bela Rani Chatterjee v. Bhupal Chandra Chatterjee AIR 1956 Cal 134 : 1956 Cri LJ 526 and Iqbalunnisa Begum v. Habib Pasha AIR 1961 Andh Pra 445 : (1961)(2) Cri LJ 604). The contrary view, that re-marriage of the husband simpliciter would be a sufficient cause for his wife's refusal to live with him, and claim separate maintence from him under Sub-section (1), has been taken in Smt. Ranjit Kaur v. Dr. Avtar Singh AIR 1960 Punj 221 : 1960 Cri LJ 516, H. Syed Ahmad v. N. P. Taj Begum AIR 1958 Mys 128 : 1958 Cri LJ 1201, and Biro v. Behari Lal AIR 1958 J & K 47 : 1958 Cri LJ 1481). According to these High Courts, remarriage of a husband would ipso 'facto constitute a sufficient cause for his wife's refusal to live with him, entitling her to claim separate maintenance from him under Sub-section (1), as the first proviso to Sub-section (3) is also a proviso to Sub-section (1).

22. As a general rule, a proviso is a clause added to an enactment for the purpose of acting a restraint upon, or as a qualification of the generality of the language, which it 'follows, But, often times a proviso may be an independent enacting provision, not controlled by or not controlling what immediately precedes it. Its real character may have to be determined from the purpose it is intended to serve. The first proviso to Sub-section (3) speaks of making an order under Section 488 as a whole, and not of making an order under Sub-section (3) only. True, its location, coupled with the expression 'such person' occurring in it, may make it a proviso to Sub-section (3) alone, nevertheless, the generality inherent in its nature, the object which it is supposed to serve, and the use of the expression 'may make an order under this section notwithstanding such offer' occurring in it, may make it a proviso to Sub-sections (1) and (4) as well, thus rendering it an independent enacting provision. It is an established rule of interpretation of statutes that where a provision in an Act is capable of two interpretations, the one which promotes the object of the Act shall be preferred Mubaraq Hussain v. Ahmad AIR 1924 All 328(FB), Workmen of F. T. & R. Co. v. Management AIR 1973 SC 1227, and State of Gujarat v. Chaturbhuj Maganlal AIR 1976 SC 1697 : 1976 Cri LJ 1367.

23. Section 488 is a welfare legislative provision aimed at providing a cheap and speedy remedy to destitute wives and preventing them from entering the stage of vagrancy. A husband taking a second wife of his choice, while his first wife is still alive, can hardly be expected to have any sympathy for his first wife, to render his offer to maintain her as a bona fide one, in case she is prepared to live with him. Inter se jealousy of wives, which is a natural phenomenon, may make the condition of the discarded wife still worse. To ask such a wife to prove neglect and refusal to maintain her on the part of her husband, would in such circumstances prolong, if not perpetuate her destitution, and there is every likelihood that such destitution, if allowed to continue unabated, may take the form of vagrancy. Viewed thus, restricting the application of its first proviso to Sub-section (3) alone would fail to serve the benign object for which Section 488 has been enacted. On the other hand, treating the proviso as an independent enacting provision, applying pari passu to Sub-sections (1) and (4) as well, will surely advance the object of the legislation. Furthermore, it really does not stand to reason that the legislature disfavoured a second marriage of the husband if it took place after the order of maintenance against him, but not the one which took place before that. Viewed 'from any angle, therefore, the! first proviso to Sub-section (3) is an independent provision applying to Sub-sections (1) and (4) as well.

24. All that has been said heretofore is more or less of an academic interest, because the point alter their Lordships, authoritative pronouncement in Deochand v. State of Maharashtra AIR 1974 SC 1488 : 1974 Cri LJ 1089 is no more res integra. In the case before the Supreme Court the wife had claimed maintenance under Section 488 on the ground that she had been neglected and refused maintenance by her husband. It was, however, the admitted case of the parties that the husband had taken a second wife. Her petition was dismissed by the Judicial Magistrate on the ground that she having 'failed to prove actual neglect or refusal on the part of her husband to maintain her, was not entitled to any order under Sub-section (1); her husband's remarriage notwithstanding. The Sessions Judge, however, took a different view. According to him, a wife was not required to prove any such neglect or refusal to claim separate maintenance from her husband, as her own refusal to live with him on the just ground of his second marriage, would constitute neglect and refusal on her husband's part to maintain her. He, accordingly, made a reference to the High Court, which was accepted. Appeal taken to the Supreme Court also 'failed and Chandrachud, J., as his Lordship then was, accorded approval to the view taken by the Sessions Judge and the High Court by observing:

As the second respondent was justified in refusing to live with the appellant, the latter was under a legal obligation to maintain her. As he has neglected to maintain her the High Court was justified in passing the order under appeal.

It was not, therefore, a case where the Supreme Court had upheld the order because it was satisfied on re-appraisal of the evidence that the husband had, in fact, neglected or refused to maintain his wife, rather it was a case where the order was upheld because such neglect and refusal in their Lordships' opinion, would still be there even if the wife had tit her own choice refused to live with her husband on the ground of his second marriage. A husband, according to their Lordships, was legally bound to maintain his wife, who had refused to live with him on account of his remarriage, as she could successfully spurn his offer to maintain her on the condition of her living with him, and it would be immaterial in such circumstances, whether the husband had in fact neglected or refused to maintain his wife, or the wife had herself created such neglect or refusal, by refusing to live with him. This clearly shows that their Lordships treated the first proviso to Sub-section (1) as an independent enacting provision governing not only Sub-section (3) but Section 488 as a whole.

25. Mr. Gupta then argued that Section 488 should have no application to Muslims who under their personal law can have four wives at a time. Answer to this argument is contained in the following observations made by Hegde, J. in H. Syed Ahmad's case AIR 1958 Mys 128 : 1958 Cri LJ 1201 (supra):

The plea of personal law makes no appeal to me. The Criminal Procedure Code is a law of the land and not of any community. If there is a conflict between the law enacted by the legislature and the personal law then the former prevails. The legislative will is supreme in this land unless controlled by the Constitution. There is no constitutional guarantee to respect the personal law of any community. There is no doubt that the amendment in question is the result of the working of social forces.

In view of their Lordships' dictum in Deochand's case AIR 1074 SC 1488 : 1974 Cri LJ 1089 (supra), the decisions taking a contrary view, can no longer be said to lay down a good law.

26. For all that has been said heretofore, my answer to the question would be in the affirmative. The case will now go back to the learned Single Judge for its decision on other points.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //