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Begum Subanu Alias Saira Banu & Anr vs A.M. Abdul Gafoor on 3 April, 1987 cites

Chand Begum vs Hyderabaig on 8 July, 1970

It only now remains for us to consider the further defence of the respondent that in view of his offer to take back the appellant and maintain her he stand absolved of his liability to pay maintenance. The offer to take back the appellant had been made only before the Revisional Court and that too after the second marriage had taken place. The offer was not to the effect that he would set up a separate residence for the appellant so as to enable her to live in peace and with dignity. As has been pointed out in Chand Begum v. Hyderbaig (supra) a husband, who marries again cannot compel the first wife to share the conjugal home with the co-wife and as such unless he offers to set up a sepa- rate residence for the first wife, any offer to take her back cannot be considered to be a bona fide offer. It is, therefore, obvious that the offer was only a make-believe one and not a genuine and sincere offer. On the basis of such an insincere offer the appellant's rights cannot be negated or defeated. It is highly unfortunate that the Sessions Judge and the High Court should have declined to grant maintenance to the appellant in spite of the appel- lant's case falling squarely under the Explanation. As the record contains evidence regarding the earnings of the respondent we are in a position to determine the quantum of maintenance for the appellant in this appeal itself instead of remitting the matter to the Trial Court or the Revisional Court. The respondent has stated in his counter-affidavit in the special leave petition that his income is only Rs.1,000 per month. The appellant has stated in her 784 petition for maintenance that the respondent was getting Rs. 1,500 per month by way of salary and Rs.500 per month by way of income from properties. In the four years that have gone by since the maintenance action was instituted the respond- ent's income must have certainly increased. Therefore, taking all factors into consideration we fix the quantum of maintenance for the appellant at Rs.300 per month. This amount will be paid with effect from 18.10.84 when the respondent married a second wife. The arrears of maintenance will be paid by the respondent in five equal instalments, the first of such instalments to be paid during the first week of June 1987. The subsequent instalments will be paid at intervals of three months thereafter i.e. during the first week of September 1987, first week of December 1987, first week of March 1988 and first week of June 1988. Future maintenance must be paid before the cloth of every succeed- ing month. We also enhance the maintenance to the minor girl (second appellant) to Rs.200 per month from Rs. 100 per month with effect from 1.1.1987. Default in payment of future maintenance or any instalments of the arrears will entitle the appellant to levy execution against the respond- ent under Section 125(3) of the Code and realise the amount. The appeal will stand allowed accordingly.
Andhra HC (Pre-Telangana) Cites 11 - Cited by 5 - Full Document

Mohd. Ahmed Khan vs Shah Bano Begum And Ors on 23 April, 1985

Having referred to the views taken by some of the High Courts and this Court about the ambit of the Explanation, we will now proceed to consider its terms and its operative force. Though we stand benefited by the enlightenment de- rived from the decisions referred to above, we are of opin- ion that the Explanation calls for a more intrinsical exami- nation than has been done hitherto. Sub-section (1) of Section 125 inter alia provides that if a person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, the Magistrate may, upon proof of such neglect or refusal, 781 order the person to make a monthly allowance for the mainte- nance of his wife. The second proviso to sub-section (3) lays down that if a person liable to pay maintenance offers to maintain his wife on condition of her living with him, and she refuses to live with him, the Magistrate may consid- er the grounds of refusal, and may make an order for mainte- nance notwithstanding the husband's offer, if he is satis- fied that there is just ground for ordering maintenance. Then comes the Explanation which says that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for the wife's refusal to live with him. In the reported decisions where the Explanation has been construed, as entitling a Muslim wife to claim maintenance on the basis of the Explanation, the courts have only taken into consideration the first limb of the Explanation viz. "If a husband has contracted mar- riage with another woman." Focussing attention on that part of the Explanation, the courts have held that the Explana- tion is of common application to all wives whose husbands have contracted another marriage irrespective of the fact the personal law governing the parties permits another marriage during the subsistence of the earlier marriage. We would like to point out that the Explanation contemplates two kinds of matrimonial injury to a wife viz. by the hus- band either marrying again or taking a mistress. The Expla- nation places a second wife and a mistress on the some footing and does not make any differentiation between them on the basis of their status under matrimonial law. If we ponder over the matter we can clearly visualise the reason for a second wife and a mistress being treated alike. The purpose of the Explanation is not to affect the rights of a Muslim husband to take more than one wife or to denigrate in any manner the legal and Social Status of a second wife. to which she is entitled to as a legally married wife, as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking a mistress during the subsistence of the marriage with her. From the point of view of the neglected wife, for whose benefit the Explanation has been provided, it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted under law to be married and not a mistress. The legal status of the woman to whom a husband has transferred his affections cannot lessen her distress or her feelings of neglect. In fact from one point of view the taking of another wife portends a more permanent destruction of her matrimonial life than the taking of a mistress by the husband. Be that as it may, can it be said that a second wife would be more tolerant and symapthetic than a mistress so as to persuade the wife to rejoin her husband and lead life 782 with him and his second wife in one and the same house? It will undoubtedly lead to a strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife. The Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband's right to marry again. The Explanation has, therefore, to be seen in its full perspective and not dis- junctively. Otherwise it will lead to discriminatory treat- ment between wives whose husbands have lawfully married again and wives whose husbands have taken mistresses. Ap- proaching the matter from this angle, we need not resort to a comparison of Muslim wives with Hindu wives or Christian wives but can restrict the comparison to Muslim wives them- selves who stand affected under one or the other of the two contingencies envisaged in the Explanation and notice the discrimination. It is this aspect of the matter which we feel has not been noticed hitherto.
Supreme Court of India Cites 17 - Cited by 154 - Y V Chandrachud - Full Document
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