Bombay High Court
Hafijjabi A. Aziz vs Abdul Aziz Kadirkha And Another on 30 June, 1982
JUDGMENT
1. The petitioner-wife has filed this Revision against the rejection of her claim for maintenance under Section 125 of the Cr.P.C. by the Additional Sessions Judge, Jalgaon, when he exercised revisional powers for setting aside the original order of the grant of maintenance. The said original order was passed by the Judicial Magistrate, First Class, Parola, in Criminal Misc. No. 15 of 1978 and it is this order that has been set aside by the Addl. Sessions Judge, Jalgaon in Criminal Revision Application No. 70 of 1980.
2. A few facts are necessary to be stated for deciding the controversy between the parties. The marriage between the parties took place in 1969 and it appears that the couple lived happily for about five years, at Indore. In 1975 sister of the wife was to be married, at Amalner and hence the husband and the wife both came to Amalner to attend the said marriage. After the marriage was over, the couple stayed at Amalner for some time and the case of the wife is that thereafter the husband went away and did not care for the wife. There was some exchange of notices between the parties and then the wife presented an application before the Judicial Magistrate, First Class, Parola, claiming maintenance. Her case is that the husband neglected or refused tot maintain her and that he has also kept a mistress. The parties led evidence and the Judicial Magistrate granted a maintenance at the rate of Rs. 100/- per month.
3. The husband took the matter is revision to the Court of Sessions at Jalgaon, viz., Criminal Revision Application No. 70 of 1980 and the Additional Sessions Judge, Jalgaon, recorded a finding that the husband has not kept any mistress. However, he held that the woman who has been living with the husband is his first wife. The Additional Sessions Judge found that the husband has not refused or neglected to maintain the wife and that the wife has no right to live separately. There is also a vague statement that though the wife has stated that she has no source of income still, there is no other evidence to prove. It is in this way that the wife's application has been rejected.
4. It is the case of the husband throughout the proceeding that he has not kept any mistress and that the woman with whom he is staying is his first wife and that thereafter he married with the present petitioner. This position has been accepted by the two courts below and that there is no dispute that the husband has the first wife. Shri Patankar, learned advocate for the petitioner, therefore, contended that in view of the explanation to Section 125(3) of the Cr.P.C. the wife is entitled to refuse to stay with the husband and the husband is automatically liable to pay maintenance. The said explanation reads as follows :-
"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."
5. Effect of this explanation on the claim of the wife for getting maintenance has been considered by this Court in the case of Tejabai v. Shankarrao Basawanappa . The material Head Note reads as Follows (Paras 9, 11, 12) :-
"A wife living separate from her husband is entitled to claim maintenance under Section 488 on the ground that the husband has contracted marriage with another wife.
The proviso to sub-section (3) of Section 488 read with its explanation requires the Magistrate to test the validity of the offer made by the husband to the wife to live with him. It does not create a new ground for claiming maintenance. Similar is the position when the offer is made under Sub-section (4). If the offer is not valid, there is nothing for the Magistrate to consider further, and, in view of the fact that a destitute wife is entitled to maintenance by a husband having sufficient means, an order for maintenance or its execution must be passed. Whether the offer is made before the issue of any order under sub-section (1) or after the issue of the order under sub-section (3), makes no difference.
xx xx xx xx It cannot be said that the just ground or sufficient reason of a husband contracting marriage with another wife is only available to the first wife vis-a-vis the second and not to second wife vis-a-vis the first, on the ground that the proviso is not made for the benefit of the wife, who, with open eyes, marries a husband, who has already contracted a marriage.
The words "if a husband has contracted marriage with another wife" are quite general in terms. The dichotomy between "has contracted marriage with another wife" and "keeps a mistress" is obvious. So far as the keeping of the mistress is concerned, the verb "keep" is used in its present tense. But so far as the contracting of marriage is concerned, the verb is present perfect viz., "has contracted". From this it is clear that the marriage might have been contracted at any time, it will refer to the first as well as the second marriage."
6. I may also refer to certain observations from para, 9 of that judgment. In the said para the Division Bench has considered the effect of the explanation to sub-section (3) of Section 125 in the following words :-
"........ The question therefore, is not whether the explanation to the proviso to sub-section (3) gives a news ground for claiming maintenance but the question is, whether the offer made by the husband to a wife, entitled to live separately, that, he will maintain her on condition of living with him does or does not virtually amount to a refusal to maintain her. We think, there could be only one answer to that question. When the husband knows that the wife has 'sufficient reason' or 'just ground' to live separately from him, the offer to maintain her on condition of living with him is not a valid offer at all. It is merely an evasion of his liability to maintain his wife who is destitute. That, in our opinion, really amounts to a refusal within the meaning of Section 488(1) ......... "It is thus clear that the abovementioned decision lays down that a second wife can claim maintenance from the husband as the fact that the husband has a first wife, would itself constitute refusal or neglect to maintain the said wife.
7. Shri Omar, learned advocate for respondent No. 1, relied upon the decision of the Calcutta High Court in the case of Rupchand Mahato v. Charubala Mahatani, . However, that decision would not be of any use to the husband, particularly, when this court has taken a contrary view in the above mentioned Division Bench decision. Shri Omer has produced a copy of the notice dated 7-1-1981 issued by the husband to the wife calling upon her to come and stay with the husband. That notice, however, would not be of any use particularly when the wife has a just cause to refuse to go and stay with the husband.
8. During the pendency of the proceedings in the trial Court, the husband has obtained a decree for restitution of his conjungal rights against the wife. Shri Omer therefore, relied upon that decree for the purpose of contending that it will not now be open for the wife to urge that she has any good ground to stay separately. The effect of passing of such a decree for restitution of conjugal rights has been considered in various decisions and Shri Omer relied upon three decisions. The first case is of the Calcutta High Court reported in AIR 1949 Cal 87 : (1948-49 Cri LJ 757) Tarak Nath Dhar v. Sneharani Dhar. There the Magistrate granted maintenance when the wife has proved her allegation that the husband, has ill-treated her and as such refused or neglected to maintain her. After the maintenance order was passed the matter was considered afresh by civil court in a suit for restitution of conjugal rights and a decree was passed therein. The Calcutta High Court has held that this subsequent decree for restitution of conjugal rights would mean that the wife had no sufficient ground to refuse to live with the husband and that the previous order for maintenance deserved to be cancelled. In the case of Mohd. Siddiq v. Mt. Zubeda Khatoon , the facts were that the husband obtained a decree for restitution of conjugal rights against the wife. She disobeyed the decree and on the contrary filed an application under Sec 488 of the Code of Criminal Procedure with an allegation that the husband has refused or neglected to maintain her. The High Court held as follows (at p. 617) :-
"............. The decision in a suit against the wife for restitution of conjugal rights is equivalent to a decision by competent Civil Court that the wife had no sufficient reason for refusing to live with her husband ............"
A similar view has been taken by Rajastan High Court in the decision of Smt. Geeta Kumari v. Shiva Charan Das, 1975 Cri LJ 137. There cannot be any dispute that ordinarily a decree for restitution of conjugal rights in favour of the husband would be a bar against the claim of maintenance by the wife. However, this would not be a universal rule. Everything will depend upon the facts of each case.
9. It is material to note that under the Mohamedan Law, a wife would not be entitled successfully to defend a suit for restitution of conjugal rights on the basis of a simple fact that the husband has another wife. even if such a defence is raised, the suit will be decreed. Thus the position is that a decree for restitution of conjugal rights can be passed even though the husband has another wife. But the matter is quite different when one has to consider the provisions of Section 125 of the Code of Criminal Procedure. As stated earlier the explanation to sub-section (3) makes it abundantly clear that if the husband has contracted a marriage with another woman, that itself would be a just ground for his wife for refusal to live with him. Consequently when a claim for maintenance under Section 125 of the Code of Criminal Procedure is made, the fact of the husband having the second wife will be relevant for the purpose of deciding as to whether the wife has a just ground to live separately from the husband. However, this very fact would not always be relevant while deciding the claim for restitution of conjugal rights. In this background, it will not be correct for Shri Omer to contend that the existence of the decree for restitution of conjugal rights in favour of the husband, would be a good reply in each and every case to the claim for maintenance under Section 125 of the Code of Criminal Procedure.
10. The net result therefore is that in view of the explanation to sub-sec. (3) of Section 125 of the Code of Criminal Procedure, the wife would be having a just ground to refuse to live with her husband if he has another wife. But the same will not be always the position if the matter is being fought out in a suit for restitution of conjugal rights. Under these circumstances, I do not think that the husband would be entitled to resist the claim for maintenance under Sec 125 of the Cr.P.C. simply because therefore is a decree for restitution of conjugal rights. As a matter of fact, in view of the decision of this Court in Tejabai v. Shankarrao Baswanappa, (1966 Cri LJ 131) (supra), the very fact that the husband has another wife entitles the wife to claim the maintenance on the supposition that the husband has refused or neglected to maintain the wife. The rejection of a claim for maintenance by the Addl. Sessions Judge, Jalgaon, is therefore, not according to law.
11. The Additional Sessions Judge has also observed in his judgment that except the bare word of the wife that she has not source of income there is no other independent evidence. I fail to understand as to what other evidence was necessary when there is nothing on the record to suggest on behalf of the husband that wife has any other income.
12. In view of the above discussion, the petitioner-wife is entitled to succeed in this revision and consequently the order of maintenance passed in her favour by the Judicial Magistrate, First Class, Parola, deserves to be restored, Rule is therefore, made absolute. The order of the Additional Sessions Judge, Jalgaon, in Criminal Revision Application No. 70 of 1980 is set aside and the order passed by the Judicial Magistrate, First Class, Parola, in Criminal Misc. No. 15 of 1978, is restored.
13. Rule made absolute.