The provisions of S. 125 of the Code are enacted to give helping hand to a woman who is unable to maintain herself and whose husband, having mean, neglects or refuses to maintain her. The proceedings under S. 125 are of summary nature and the Magistrate is not requires to determine which party to the marriage is at fault. The ambit of inquiry before the Magistrate is only whether the wife is unable to maintain herself and whether the husband has refused or neglected to maintain her. It is undoubtedly true that in the present case the husband had given notice to the wife to return back to the matrimonial home and the notice was followed by filing of a suit for restitution of conjugal rights. We are informed that the decree granting restitution was passed by the trial Court but was set aside in appeal. We will proceed on the assumption that it was the wife who was in wrong in leaving the house in the year 1977, but would that disentitle her to claim maintenance on the date when the Magistrate passed the order ? It is necessary to bear in mind that the crucial date for ascertaining whether a wife is entitled to live separately and maintenance is the date on which the Magistrate passes the order. The Magistrate is required to take into consideration the facts and circumstances existing on that date. In the present case, even assuming that the wife was in the wrong in leaving the husband, still on the date when the Magistrate passed the order, she was entitled to live separately because of the action of the husband in contracting second marriage. The husband contracted second marriage on May 8, 1983 i.e. during the pendency of proceedings under S. 125 of the Code. Once the husband contracted the second marriage, then the first wife was entitled to live separately, and Mr. Maniyar very fairly stated that the petitioner had no desire to take back the first wife after contracting second marriage. In our judgment, whatever has transpired earlier, that loses all its relevance when on the date of the order passed by the Magistrate the husband had contracted second marriage. It is not in dispute that the wife is unable to maintain herself and her husband had sufficient means. The neglect or refusal to maintain is demonstrated by disinclination of the petitioner to take back the first wife after contracting the second marriage. The order of the Magistrate, therefore, cannot be faulted.
Bombay High Court
Mustafa Shamsuddin Shaikh vs Shamshad Begum Mustafa Shaikh And ... on 5 April, 1990
Equivalent citations: 1990 (2) BomCR 697, (1990) 92 BOMLR 239, 1991 CriLJ 1932
1. The petitioner married respondent No. I on May 20, 1977 and a daughter, respondent No. 2, was born out of the wedlock on May 3, 1978. The parties fell apart within four months of the marriage and the wife started residing with her parents. On October 2, 1979 and on January 23, 1980, the petitioner made efforts to bring his wife back to matrimonial home but the efforts did not succeed for one or The other reason. On January 24, 1980, the petitioner served legal notice on the wife requesting her to return back to matrimonial house. The wife gave reply on February 14, 1980 complaining that she was required to leave the house due to the cruel treatment meted out by the petitioner. On February 19, 1980, the petitioner instituted Reg. Civil Suit No. 171 of 1980 against the wife claiming restitution of conjugal rights. The wife filed written statement on September 10, 1980.
2. On September 11, 1980, the wife along with her minor daughter instituted criminal miscellaneous Application No. 33 of 1980 in the Court of Judicial Magistrate, 1 Class, Solapur; under S. 125 of Code of Criminal Procedure. The wife claimed that she and her minor daughter are unable to maintain themselves and the petitioner had neglected and refused to maintain them. The wife demended maintenance amount of Rs. 200/per month and claimed Rs. 100/- per month for her daughter. The proceedings were resisted by the petitioner but, during the pendency of the proceedings, on May 8, 1983, the petitioner contracted second marriage. The parties are Muslims and the petitioner was entitled to contract second marriage even during the lifetime of the first wife. The proceedings under S. 125 of the Code were decided by Judicial Magistrate on June 18, 1984 awarding maintenance of Rs. 100/- per month to the wife and Rs. 50/- per month to the child. The trial Magistrate held that the wife had left the house without any cause but, as the petitioner had contracted second marriage prior to the date of the order, the wife was entitled to live separately. The trial Magistrate recorded a finding that the wife was unable to maintain herself and her husband had neglected or refused to maintain her and the minor daughter. The trial Magistrate awarded maintenance from the date of the order i.e. June 18, 1984. The petitioner carried revision application before the Sessions Court, Solapur, and the wife also preferred revision application to claim that maintenance amount should have been made payable from the date of application. The Sessions Judge, Solapur, disposed of both the revision applications by judgment dated May 26, 1986. The revision application filed by the husband was dismissed while that of the wife was allowed. The Sessions Judge directed that quantum of amount settled by Magistrate should be payable from the date of application under S. 125 of the Code i.e. from September 11, 1980. The order passed by the Sessions Court is under challenge in this petition filed under Art. 226 of the Constitution.
3. The petition was placed before Division Bench of this Court as the petitioner challenged the constitutional validity of Explanation to sub-section (3) of S. 125 of Code of Criminal Procedure. The Explanation to sub-section (31 provides that 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. Mr. Maniyar, learned Counsel appearing on behalf of the petitioner, stated, at the outset, that the petitioner is not pressing the contention about the vires of the Explanation and only grievance is about the exact ambit of the Explanation to subsection (3). The learned Counsel urged that it is not permissible for the Court to consider the wife's refusal to live with the husband as just merely because the husband has contracted second marriage and it is necessary that the Court must ascertain under what circumstances the husband contracted second marriage and whether that was because of the fault on the part of the wife. Mr. Maniyar did not dispute the quantum of maintenance amount granted by the two Courts below and very fairly stated that the liability of the petitioner to pay maintenance to his minor daughter cannot be debated. In view of the contention raised at the Bar, the short question for our determination is whether it is permissible for the Court to deny maintenance to the wife because the husband has contracted the second marriage for the fault of the wife.
4. Section 125(1) of the Code prescribes that Magistrate can order a person to make a monthly allowance for the maintenance of his wife or child, if such person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself. The power to grant maintenance is conferred on a Magistrate provided two basic requirements are established. The first requirement is that the wife is unable to maintain herself and The second is that her husband has sufficient means but neglects or refuses to maintain the wife. The Explanation to sub-section (3) merely provides the guideline to the Court and prescribes that when husband contracts second marriage, then the wife is entitled to live separately from her husband. The Explanation by itself does not enable the wife to claim maintenance under sub-section (i). A wife may be entitled to live separately from her husband because the husband has contracted second marriage but that fact by itself is not enough for a Magistrate to award maintenance. The wife has to establish that she is living separately and she is unable to maintain herself and her husband has neglected or refused to maintain her. Unless these facts are established, the wife is not entitled to claim maintenance merely because the husband has contracted second marriage and that fact entitles her to live separately.
In the present case, it is not in dispute that the petitioner who professes Muslim Religion is entitled to contract second marriage even during the lifetime of his first wife. Mr. Maniyar urged that respondent No. 1 had left the matrimonial house without any just cause and the husband has made repeated efforts to bring her back to the house. The learned Counsel urged that the husband contracted second marriage after a passage of 6 years from the time the wife left the house and on these facts no fault can be found on the part of the husband for contracting second marriage. Mr. Maniyar submits that it was the wife who was guilty of deserting the matrimonial house and that fact is enough to disentitle her from claiming maintenance. It is not possible to accede to the submission of the learned Counsel because it proceeds on a misconception about the true nature of the proceedings under S. 125 of the Code. The provisions of S. 125 of the Code are enacted to give helping hand to a woman who is unable to maintain herself and whose husband, having mean, neglects or refuses to maintain her. The proceedings under S. 125 are of summary nature and the Magistrate is not requires to determine which party to the marriage is at fault. The ambit of inquiry before the Magistrate is only whether the wife is unable to maintain herself and whether the husband has refused or neglected to maintain her. It is undoubtedly true that in the present case the husband had given notice to the wife to return back to the matrimonial home and the notice was followed by filing of a suit for restitution of conjugal rights. We are informed that the decree granting restitution was passed by the trial Court but was set aside in appeal. We will proceed on the assumption that it was the wife who was in wrong in leaving the house in the year 1977, but would that disentitle her to claim maintenance on the date when the Magistrate passed the order ? It is necessary to bear in mind that the crucial date for ascertaining whether a wife is entitled to live separately and maintenance is the date on which the Magistrate passes the order. The Magistrate is required to take into consideration the facts and circumstances existing on that date. In the present case, even assuming that the wife was in the wrong in leaving the husband, still on the date when the Magistrate passed the order, she was entitled to live separately because of the action of the husband in contracting second marriage. The husband contracted second marriage on May 8, 1983 i.e. during the pendency of proceedings under S. 125 of the Code. Once the husband contracted the second marriage, then the first wife was entitled to live separately, and Mr. Maniyar very fairly stated that the petitioner had no desire to take back the first wife after contracting second marriage. In our judgment, whatever has transpired earlier, that loses all its relevance when on the date of the order passed by the Magistrate the husband had contracted second marriage. It is not in dispute that the wife is unable to maintain herself and her husband had sufficient means. The neglect or refusal to maintain is demonstrated by disinclination of the petitioner to take back the first wife after contracting the second marriage. The order of the Magistrate, therefore, cannot be faulted.
5. Mr. Maniyar placed strong reliance upon decision of single Judge of this Court reported in, 1986 Mah LJ 1041 Mohammad v. Raisa. In the case before the learned Judge, the parties were Muslims and during the subsistence of the first marriage, the husband contracted second marriage. The first wife then left the husband and filed proceedings under S. 125 of the Code. The Magistrate came to the conclusion that the conduct of the husband was without any fault and the wife was guilty in leaving the house of the husband without any cause. The Magistrate thereupon declined to grant any maintenance. The Sessions Judge set aside the order in revision holding that once the husband contracted the second marriage, then the wife was entitled to live separately and claim maintenance. The learned single Judge held that when the wife left the house of the husband without any cause, then she had no right to live separately merely because the husband contracted second marriage and, consequently, was not entitled to the maintenance. With respect, we are unable to sharp the view taken by the learned single Judge. The learned single Judge overlooked that in the proceedings under S. 125 of the Code, it is not necessary for the Court to ascertain as to who was in the wrong and whether the wife was guilty of leaving the matrimonial house without any reason. Even assuming that the wife is in the wrong while leaving the house, she cannot be deprived of maintenance when husband contracts second marriage and that fact by itself entitles her to live separately. The proceedings under S. 125 of the Code should not be confused with the matrimonial proceedings between the parties. A right to claim maintenance under the Code is not dependent upon who was right and who was wrong in the matrimonial disputes. The Magistrate is duty bound to award maintenance once it is found that the wife is unable to maintain herself and her husband has means but still neglects or refuses to maintain the wife. The Magistrate is not required to examine whether the conduct of the wife in initially leaving the house was just or not. The conduct of the wife at the time of leaving the house is wholly irrelevant and the Magistrate must concentrate on the facts and circumstances existing on the date of passing order on application filed under S. 125 of the Code. For these reasons, we are unable to share the view of the learned single Judge and we overrule the same. In our judgment, the orders passed by the two Courts below awarding maintenance do not suffer from any infirmity and the petition must fail.
6. Accordingly Rule is discharged. The petitioner shall pay costs to respondents Nos. 1 and 2.
7. Order accordingly.
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