Shaikh Babbu S/O Shaikh Suleman vs Rashida W/O Shaikh Babbu And Anr.
2001 Latest Caselaw 656 Bom

JUDGMENT

R.K. Batta, J.

1. The respondent No. 1 (hereinafter referred to as original applicant) had filed an application for grant of maintenance under section 125 of the Criminal Procedure Code which was dismissed by the J.M.F.C. Gadchiroli vide judgment dated 29th January, 1991. The trial Court came to the conclusion that the present applicant (hereinafter referred to as original non-applicant) had tried to fetch the original applicant; no illtreatment by way of beating by the original non-applicant and his first wife is proved by the original applicant, who is the second wife, for want of supporting evidence; that the original applicant was not entitled to claim maintenance allowance against her husband during lifetime of 1st wife; that in accordance with section 214 of Chapter 14 of the Mohammedan Law, marriage being a contract, the provisions of maintenance are left to a written agreement of maintenance and besides that no neglect or refusal has been proved by the original applicant on the part of her husband to maintain her, but, on the contrary, the original applicant, on her own accord has chosen to live with her parents without reasonable cause. The original applicant approached the Sessions Court in Revision and the learned Additional Sessions Judge, Gadchiroli, vide judgment dt. 26-9-1996, allowed the revision and granted maintenance of Rs. 500/- in favour of the original applicant from the date of impugned order of the trial Court dated 29-1-1991. The learned Additional Sessions Judge held that the Magistrate was right in holding that refusal and neglect to maintain was not proved and the original applicant/wife was therefore not entitled to claim the maintenance. Nevertheless, the learned Additional Sessions Judge, found that the offer to maintain the original applicant by the original non applicant, did not appear to be bona fide and it does not appear from the evidence on record that the non-applicant husband made a separate provision for her residence and as such, offer to maintain by him is not bonafide. These findings were given in view of the fact that the original applicant was the second wife of the original non-applicant. The original non-applicant has, therefore, approached this Court for revision.

2. The learned Adv. for the present applicant, urged before me that the original applicant had left the matrimonial home after about 6 months of marriage and as such, there has been no refusal or neglect and in this respect, it has been pointed out that both the courts below have in fact held that there has been no neglect or refusal on the part of the original non-applicant to maintain the original applicant. It has also been pointed out that the original non applicant was always ready and willing to take the original applicant with him and evidence to that effect was led, but the original applicant was not prepared to stay with him. It is next urged that the original applicant being the second wife, very well knew that the first wife was living with the original non-applicant and as such, knowing the same, the original applicant cannot claim separate residence nor could claim any maintenance on this count. It was next pointed out that explanation to Sub-section (3) of section 125 is restricted to the said Sub-section alone and is not attracted insofar as Section 125(1) of Criminal Procedure Code is concerned and that explanation speaks of marriage afterwards and not prior marriage. According to the learned counsel for the applicant, there was no case for interference by the Additional Sessions Judge in revision and therefore, the revision in question be allowed.

3. The learned Adv. for the original applicant urged before me that explanation to Section 125(3) is not restricted to Sub-section (3) thereunder, but it applies to Section 125(1), Criminal Procedure Code as well. He urged before me that the offer of husband was made when he was living with another wife which gives justification to the wife not to live with the other wife but to seek separate residence. A number of authorities have been relied upon by the learned Adv. for the original applicant to which reference would be made while discussing the matter on merits.

4. In reply, the learned Adv. for the original non-applicant has also relied upon two rulings to which reference shall be made when the matter is discussed on merits.

5. The learned P.P. appearing on behalf of respondent no. 2 urged before me that explanation to 2nd proviso under Section 125(3) is restricted to 2nd proviso only and that neglect and refusal to maintain is sine qua non for grant of an application under Section 125 of the Criminal Procedure Code and in this respect reliance has been placed on , Bai Tahira v. All Husain Fissali Chothia and Anr..

6. The original applicant is the second wife of the original non-applicant. Their marriage took place on 4-5-1986 and the original applicant stayed with the original non-applicant and his first wife for more than 6 months. From 14-4-1987, the original applicant started staying with her father. In this respect, there is a controversy between the parties. According to the original applicant she was left at her father's place on 14-4-1987 and thereafter, the original non applicant neglected to maintain her or bring her back. The case of the original non applicant is that she had left the house on her own and even in spite of efforts made, she was not ready to come back on account which, proceeding for restitution of conjugal rights was filed, which was decreed but in spite of that the original applicant refused to stay with him,

7. In the application for maintenance, the allegation was refusal and neglect to maintain and in this application, the original applicant had not demanded to live separately on account of the first wife of the original non-applicant, but, it is pertinent to note that in the reply as well as during the recording of evidence, the original non-applicant had offered her to join him at his residence along with the first wife, but no offer was given to live separately from the 1st wife. It is in the light of these facts, that the contentions advanced by the parties are required to be examined.

8. There can be no doubt that there has to be neglect or refusal to maintain and the wife leaving the matrimonial home on her own may not be entitled to maintenance. It is no doubt true that both the courts have recorded concurrent finding that there was no refusal or neglect to maintain and the said findings can not be reopened. However, the fact of the matter is that in the reply and also during the course of evidence, the non-applicant had offered to take the original applicant to his residence to stay along with the first wife which the original, applicant had refused and she demanded a separate residence. In this respect, the learned Advocate for the original non-applicant has urged before me that the scope of explanation to 2nd proviso of Section 125, Criminal Procedure Code is restricted to Sub-section (3) of Section 125, Criminal Procedure Code alone whereas the contention of the learned Advocate for the original applicant is that the said explanation is not restricted to Section 125(3) but it operates at the stage of Section 125(1), Criminal Procedure Code also.

9. There is no doubt conflict of views amongst various High Courts on the issue as to whether the 2nd proviso and its explanation governs only Sub-section (3) of Section 125, Criminal Procedure Code or even Sub-section (1) of Section 125, Criminal Procedure Code. One view is that at the stage when the Magistrate is considering whether an order under Sub-section (1) should be passed or not, it is not relevant to consider whether there is a just ground for the wife to refuse to live with him and what the Magistrate has to consider at this stage is whether the husband, though possessed of sufficient means, has neglected or refused to maintain his wife, and not whether the wife has just ground for refusing to live wiih him. It has, therefore, been held that the proviso and its explanation govern only Sub-section (3) and not Sub-section (1). In other words, according to this view the said explanation and proviso would be applicable only at the stage of enforcement of order passed under Sub-section (1).

10. The other view is that explanation to 2nd proviso to Sub-section (3) is in fact proviso to even Sub-section (1), or in any case, lays down the general principle which will be kept in view at the stage of passing order under subsection (1). This view also proceeds further that if the husband has remarried or kept a mistress, the wife may refuse to go to him and in such case, it would not be necessary for the wife to prove neglect or refusal on the part of her husband where the husband has contracted a second marriage with another wife or has kept a mistress. This view is supported by judgments of various High Courts. I shall now refer to rulings on this aspect.

11. The Lahore High Court in Ram Singh v. Mt. Ram Bai, AIR 1943 Lahore 223, has laid down that the proviso to Sub-section (3) is a proviso to that section only and is not the proviso to Sub-section (1) and therefore, a separate enquiry which is made into the offer of the husband to maintain the wife, when such offer is made in execution proceedings under Sub-section (3) is not necessary when such offer is made in the proceedings under Sub-section (1). To the same effect are in fact the views of the Division Bench of Lahore High Court in Mt. Roshan Bano v. Azim, AIR 1943 Lahore 59.

12. The Nagpur High Court as it then was in The State v. Anwarbi and Ors., 1952 NLJ 719 = AIR 1953 Nag. 133, has held that the mere fact that a husband has married again does not entitle the wife to maintenance although it has to be regarded as a just ground for her to refuse to live with him and she may be justified in not living with him since his remarriage : but even then she has to establish neglect or refusal to maintain her and unless the same is established, she is not entitle to separate maintenance since refusal or neglect to maintain constitutes the basis for exercise of jurisdiction by a Court under section 488 of Criminal Procedure Code.

13. The Division Bench of the Calcutta High Court in Smt. Bela Rani Chatterjee v. Bhupal Chandra Chatarjee, , has laid down that it is not permissible to read into the explanation added to the first proviso to subsection (3) of section 488, anything more than what it says in the context of the 1st proviso to Sub-section (3) and in that view it would not be permissible to pray in aid the provisions of Hindu Married Women's Right to Separate Residence and Maintenance Act, for the purpose of construing Sub-section (1) of section 488, Criminal Procedure Code. The Calcutta High Court took the view that the mere fact of a second marriage cannot ipso facto establish neglect or refusal since a man may marry second time and still not refuse to maintain first wife. It was further held that mere fact that a husband has contracted marriage with another wife or keeps a mistress cannot, without more be said to amount to neglect or refusal on pan of husband to maintain wife. It may be mentioned here that the Division Bench judgment of this Court in Tejabai w/o Shankarrao v. Baswanappa, , has pointed out that this view has been expressly dissented in earlier judgment and I shall refer to it at a little later stage. This view of Calcutta High Court has been impliedly overruled in Begum Subattu @ Saira Banu and Anr. v. Abdul Gafoor, .

14. The Madhya Pradesh High Court in Bhanwarlal v. Gitabai, , lays down that when the husband effects, the second marriage, it is open for the first wife to refuse to live with her husband and that may be considered to be a just ground for her refusal. It further lays down that proviso to Sub-section (3) of section 488 entitles the Magistrate to consider the grounds put forward by the wife claiming maintenance for her refusal to stay with her husband in spite of an offer to that effect and to pass an order awarding maintenance to her, if such grounds are considered by him to be just. It is pointed out that the amendment to the proviso puts down the fact of second marriage by the husband as a just ground for her refusal and therefore, even if there be an offer by the husband to maintain the wife on the condition of her living with him, the Magistrate is entitled to pass an order of maintenance, if that offer be under the circumstances that the husband has contracted a second marriage and that his second wife is living with him.

15. The Mysore High Court in H. Syed Ahmad v. Nagnath Parveen Taj Begum, AIR 1958 Mysore 328, has laid down that a husband can, in an application under section 488, Criminal Procedure Code take a plea that he is willing to maintain his wife if she lives with him and it is a good defence if it is a bona fide one. It is further laid down that if the main proviso is available in proceedings under Sub-section (1), then it necessarily follows that the amendment made to that proviso will also be applicable to such cases. It is pertinent to note that the High Court has pointed out that if the husband can plead that he is willing to maintain his wife, she in her turn can plead that she is not willing to live with him on the ground he has taken second wife and there is no particular reason as to why such a plea should be available only at the time of enforcement of the order and not at the time of its passing. Neglect or no neglect the husband is liable to pay separate maintenance to his wife on the sole ground that he has taken second wife. It is also pointed out that though it is true that personal law of the Muslims allowing 4 wives as such has not been changed, but if the parties come within the mischief of section 488, Criminal Procedure Code they shall be governed by its provisions notwithstanding their personal law. The judgment of the Nagpur High Court in State v. Mt. Anwarbi and Ors. (supra) has been dissented in this case.

16. The Allahabad High Court m Ramji Malviya v. Smt. Munni Devi Malviya, has laid down that first proviso to Sub-section (3) governs only Sub-section (3) and not Sub-section (1), but still wife's refusal to live with husband on account of his remarriage may be sufficient reason within Sub-section (4). The High Court has laid down as under:

'The proviso that if the husband offers to maintain the wife on condition of her living with him and she refuses to live with him on the ground that he has contracted marriage with another woman, the Magistrate will hold that she had a just ground for her refusal and will reject the offer, is a pan of Sub-section (3), which deals only with the enforcement of a maintenance order. It is true that the words used in the proviso are "make an order under this section" and that Sub-section (3), does not expressly provide for making any 'order' but the context in which the proviso is placed leaves no room for doubt that it governs the provision of subsection (3) only and not that of Sub-section (1) in addition. The proviso seems to have been enacted in order to give the husband one more opportunity of offering to maintain the wife on condition of her living with him.

Though 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 considered whether the wife's refusal to live with her husband is without any sufficient reason within the meaning of subsection (4). A just ground for refusal to live with the husband must necessarily be a sufficient reason. A sufficient reason may not be a just ground, but a just ground must always be a sufficient reason. 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 (1). Whether she should get it or not is an entirely different question."

17. The Punjab High Court in Smt. Ranjit Kaur v. Avtar Singh, AIR 1960 Punjab 221, has laid down that under Sub-section (1) of section 488, before a Magistrate can pass an order, he must be satisfied with regard to two matters, namely, that husband has sufficient means and that he has neglected or refused to maintain his wife or child. It is further pointed out that where the husband offers to maintain his wife, only on the condition of her living with him and if the Court finds that the refusal by wife to go with her husband is justified, such a conditional offer by itself would really amount to refusal on the part of the husband to maintain his wife if she continued to live away from him. It is further laid down that where the husband has taken a second wife and he refuses to maintain his wife, unless the latter is agreeable to go and live with him, this circumstance by itself will be sufficient to establish refusal of the husband and thus, in practice, the existence of second wife or the keeping of a mistress would, unless there is something else proved against the wife, result in the acceptance of petition of wife for grant of maintenance. Relying upon H. Syed Ahmad v. Nagnath P.T. Begum (supra) it has been laid down in this case that the first part of the proviso which comes after Sub-section (3) of section 488 is available to the husband even under Sub-section (1) at the time of decision of the application for maintenance as well as at the time of enforcement of the maintenance order.

18. The learned Advocate for the original non-applicant has placed reliance upon the Division Bench ruling of the Punjab High Court in Mst. Dhan Kaur and Ors. v. Niranjan Singh, which states that proof of neglect or refusal by the husband to maintain his wife is the basis of claim for maintenance by the wife under section 488 and without proof of that, no order of maintenance can be made in favour of the wife under that section even though she is living separately from her husband in pursuance of her statutory right to live separately from him because he has married again or has taken a mistress to himself. This view has been impliedly overruled by the Apex Court in Subanu @ Saira Banu v. AM. Abdul Gafoor (supra) to which I shall refer at a later stage.

19. The Andhra Pradesh High Court in Iqbalunnisa Begum and Anr. v. Habib Pasha, , has held that provision of section 488 of Criminal Procedure Code 1898, (which correspondents to section 125, Criminal Procedure Code) which immediately follows, the proviso in Sub-section (3) of that section, and the proviso are linked together with the main portion of subsection (3) and do not constitute a provision and proviso applicable to the entire section 488 as a whole. It was further pointed out that the above provision really relates to enforcement of an order which comes under section 488(3) and not to a ground of maintenance under section 488(1). It was, therefore, held that the wife cannot be held to be entitled to separate maintenance on the ground that the husband has married another wife. Therefore, separate maintenance claim by the

first wife was rejected. The learned Advocate for the original non-applicant has placed reliance on this ruling.

20. The Madhya Pradesh High Court in Jamuna Prasad Potel v. Smt. Premabai Jamuna Prasad Patel, 1961 MPLJ 44 = 1961 (1) Cri.LJ. 666, has held that the first proviso to section 488(3), Criminal Procedure Code truly governs only Sub-section (1) and at any rate it is in substance a proviso to that Sub-section. It is further laid down that if the husband has contracted a second marriage or kept a mistress in the house, justifying the wife to stay away separately, his mere inaction alone would amount to refusal and his subsequent conditional offer would mean express refusal, being an evidence of his intention of not providing any maintenance from the inception unless she was prepared to abandon her right to stay separate in the circumstances. Thus, according to the High Court, the fact that the husband has contracted a second marriage or has kept a mistress in the house, by itself, can be made a ground for grant of maintenance to his wife.

21. The Madras High Court in Kandaswami Gounder v. Nachammal, , has laid down that though the proviso 1 to Sub-section (3) of section 488 governs only Sub-section (3), the provision that remarriage by 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 considered whether wife's refusal to live with her husband is without any reason within the meaning of Sub-section (4), It is pertinent to note that it lays down that the Sub-section (4) governs the whole section 488 including 488(1) and the 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 (1).

22. The Division Bench judgment of the Mysore High Court in Shambu Reddy v. Ghalamma, AIR 1966 Mysore 311, has laid down that the first proviso to section 488(3) being intended to remedy social evil must be liberally construed, "punctuation mark, viz. colon, used in section 488(3) cannot be permitted to control plain and independent meaning of language. The intendment of amendment indicates that proviso is to govern not only Sub-section (3) but also Sub-section (1) of section 488 of Criminal Procedure Code. It has been further laid down that contracting second marriage or keeping a mistress and offering to maintain the 1st wife on condition of her staying with him, is itself a just ground for wife's refusal to stay with him and the husband's offer to maintain her only on the condition of her staying with him impliedly amount to refusal to maintain within section 488(1), Criminal Procedure Code. It has been further laid down that while claiming separate maintenance, the 1st wife need not prove neglect or refusal to maintain on husband's part.

23. Now, I shall come to the division Bench judgment of this court in Tejabai w/o Shankarrao v. Shankarrao Baswanappa, . The question before the division Bench was, whether living separate from her husband, the wife is entitled to claim maintenance under section 488 of Criminal Procedure Code on the ground that her husband has contracted marriage with another wife. The Division bench has noticed that there has been considerable divergence of opinion on the question as to whether the proviso under Sub-section (3) is a proviso to Sub-section (3) only or, to Subsection (1). The Division Bench noticed that this Court has taken the view that it is a proviso to Sub-section (1), and in this connection reference was made to unreported decision in Criminal Reference No. 140/1959 Thagubai v. Vedu decided by Naik, J. The observations from the said case have been quoted in para 9 of the judgment which read as under --

"The very fact that the wife is entitled to live separately from the husband is sufficient to show that she has a right to claim maintenance from the husband. Of course, it will be open to the husband to provide separate maintenance for the wife if she is living away from him. In case, however, the husband does not provide separate maintenance, then the only conclusion that would follow is that he is refusing or neglecting to perform his duty qua husband. On this basis, it can even be said that the case would fall within the ambit of the word "neglects^ or refuses to maintain".

The Division Bench then posed a question as to what happens when the husband offers to maintain his wife on condition of living with him before any order under Sub-section (1) is passed? It is pointed out that Sub-section (4) is the answer. The Division Bench referred to Ramji Malviya v. Smt. Munni Devi, wherein it was held that Sub-section (4) governs the whole section including Sub-section (1). In this judgment, it is pointed out that there may be cases where the husband might not have made such an offer while application for maintenance under Sub-section (1) was pending against him. The Division Bench has then quoted the observations of the Allahabad High Court in (supra) to the effect that though the proviso governs only subsection (3), the provision that remarriage by 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 considered whether the wife's refusal to live with her husband is without any sufficient reason within the meaning of Sub-section (4). Nevertheless, the Division Bench felt that it is really not necessary to decide whether the proviso to Sub-section (3) governs Sub-section (1), or, only Sub-section (3), so far as the ground of wife's refusal to stay with her husband is concerned. It is pertinent to note that the Division Bench has pointed out that it is open to the husband to make an offer to maintain his wife on condition of living with him, before any order under section (1) is passed and when such an offer is made, the wife is entitled to point out that the husband has contracted a marriage with another wife and therefore, it was sufficient reason for her not to live with him. It was pointed out that in view of Sub-section (4), it will make no material difference to the situation arising from the wife's refusal to live with her husband on the ground that he has contracted another marriage, whether the proviso in Sub-section (3) is read as a proviso to Sub-section (1) or to Sub-section (3). The Division Bench then held that the proviso to Sub-section (3) read with its explanation does not create a new ground for claiming maintenance but requires the Magistrate to test the validity of the offer made by the husband to the wife to live with him. 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. The Division Bench noted that there can be no two opinions on the question that there should be either neglect or refusal to maintain before a wife is entitled to claim maintenance. When wife seeks maintenance and husband contest the same by making offer to maintain her on condition to live with him though he has contracted another marriage, the offer is only an indirect, way of refusing to maintain as she is entitled to live separately in view of explanation to second proviso to Sub-section (3).

24. The Patna High Court in Subhagi Devi v. Murli Pradhan, AIR 1968 Patna 139, has laid down that the jurisdiction of the criminal Court to make an order of maintenance against a person having sufficient means arises only upon proof of neglect or refusal on his part to maintain his wife, In the absence of such proof. It is not open for the Magistrate to make any order of maintenance under Sub-section (1) of section 488, Criminal Procedure Code. It is further laid down that Sub-section (3) including its 2 provisos come into play only after a person has failed without sufficient cause to comply when an order passed against him under Sub-section (1) and it is not applicable at the first stage when the Magistrate is called upon to pass an order under Sub-section (1).

25. The Judicial Commissioner's Court in Joao Francisco Coelho v. Maria Luciana de Soitza and Anr., AIR 1969 Goa, Daman and DIM 136, has laid down that it cannot be said that explanation to the first proviso is not applicable at the stage of making an order under Sub-section (1) of section 488, Criminal Procedure Code as the first proviso envisages "an order under this section" and not under Sub-section (3) only and, therefore, it would also apply at the stage of Sub-section (1). It has been pointed out that the object of the explanation which has been added, is to promote domestic happiness and not to keep the husband and wife separate and the offer may be made before an order for maintenance is passed, The Judicial Commissioner's case has relied upon H. Syed Ahmad v. Nagnath Parveen Tej Begum (supra) and Tejabai w/o. Shankarrao v. Shankarrao Baswanapa" (supra) to which reference has already been made.

26. The Division Bench of the Allahabad High Court in Mehrunnisa v. Noor Mohammad, , has laid down that first proviso to section 488(3) was meant to govern section 488(3) to which it has been added as a proviso.

27. In Begum Subanu @ Saira Banu v. A.M. Abdul Gafoor, (supra) the appellant was married to respondent on 11-5-1980 and delivered a girl child on 9-5-1981. On grounds of neglect and failure to provide maintenance she filed petition under section 125, Criminal Procedure Code which was dismissed on the around that she had failed to establish adequate justification for living separately. The appellant filed revision and when revision was pending, the respondent married one Sahida Begum on 18-4-1984 as his second wife. The appellant, therefore, urged that irrespective of other grounds, the second marriage of the respondent, by itself, was a ground for grant of maintenance. The maintenance was refused by Sessions Court and High Court declined to interfere under section 482, Criminal Procedure Code. The Apex Court examined the scope and effect of explanation to 2nd Proviso to Sub-section (3) which reads :

"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."

The Apex Court examined this aspect in the light of divergent views expressed by the High Court on the issue in paras 6 to 10 of the judgment as under:

"6. Before entering upon our discussion, we may refer to some of the decisions, rendered by the High Courts on the scope and effect of the Explanation. We are setting out only some of the cases and not making an exhaustive reference because the purpose of the reference is only to show the divergent views taken by several High Courts. Furthermore, we have grouped the cases on broad classifications and not with reference to the line of reasoning adopted in each case. In the following cases it was held that the second marriage of the husband entitled the wife to an order of maintenance under section 488, Criminal Procedure Code, 1898 : (1) Bayanna v. Devamma, ; (2) Kandaswami v. Nachammal, ; (3) Syed Ahmad v. N.P. Taj Begum, AIR 1958 Mys. 128; (4) Shambu v. Ghalamma, AIR 1966 Mys. 311; (5) Teja Bai v. Shankarrao. ; (6) Mohammed Haneefa v. Mariam Bi, .

"7. In the following cases a contrary view was taken holding that the mere fact that a husband has contracted marriage with another wife or keeps a mistress cannot without more be said to amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of Sub-section (1) of section 488; (7) Bela Rani v. Bhupal Chandra. ; (8) Rupchand v. Charubala, ; (9) Ishar v. Soma Devi, (10) Dhan Kaur v. Niranjan Singh, .

"8. A third line of view was taken in Ramji Malviya v. Munni Devi. Where it was held that ordinarily remarriage will be a sufficient around for refusing to live with the husband but if the remarriage had been occasioned by the wife's unjust refusal to live with her husband she cannot lake advantage of her own wrong and claim maintenance.

"9. There are two decisions, one of the Kerala High Court rendered by V. R. Krishna Iyer, J., as he then was and the other of the Andhra Pradesh High Court rendered by Chinnappa Reddy. J. as he then was which require mention because they pertain to maintenance actions by Muslim wives whose husbands had married again, Krishna lyer. J. held as follows in Sahulameedu v. Subaida Beevi 1970 Ker. LT4.

"It behoves, the Courts in India to enforce section 488(3), Criminal Procedure Code in favour of Indian women, Hindu, Muslim or other, i will be failing in my duty if I accede to the argument of the petitioner that Muslim women should be denied the advantage of para 2 of the Proviso to section 488(3)." Chinnappa Raddy, J. held in Chand Begum v. Hyderbaig, 1972 Cri.LJ. 1270 (at p.1273) (Andh. Pra.) as under:

'Therefore, a husband who married again cannot expect the Court to come to his rescue if he wants the first wife to share the conjugal home with a co-wife. If she decides to live separately he is bound to provide a home for her and maintain her. If he does not do that, he neglects or refuses to maintain her within the meaning of section 488(1), Criminal Procedure Code. Thus the offer of a husband who has taken a second wife to maintain the first wife on condition of her living with him cannot be considered to be a bona fide offer and the husband will be considered to have neglected or refused to maintain the wife."

"10. Lastly, we must also refer to the decision of this Court in Mohd. A. Khan v. Shah Bano Begum, wherein the Explanation came to be scanned by the Court while examining the larger question regarding the rights, of divorced Muslim wives to claim maintenance under section 125 of the Code. The relevant observation of the Court is in the following terms :

"The conclusion that the right conferred by section 12 can be exercised irrespective of the personal law of the parties is fortified, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to section 125 of the Code, That proviso says that if the husband offers to maintain his wife on condition that she should live with him and she refuses to live with him, the Magistrate may consider any grounds, of refusal stated by her and may make an order of maintenance notwithstanding the offer of the husband, if he is satisfied that there is a just ground for passing such an order ..... The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages. It shows, unmistakably, that section 125 overrides the personal law, if there is any conflict between the two."

The Apex Court has observed that the explanation calls for a more intrinsical examination and has laid down that a right has been conferred under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a mistress. It matters, not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress. Therefore, it cannot be said that his taking another wife will not entitle the wife to claim separate residence and maintenance, the Explanation is of uniform application to all wives including Muslim wives whose husbands, have either married another wife or taken mistress. In this connection any offer to take the first wife back cannot be considered to be a bona fide offer unless the husband offers to set up a separate residence for her, for a husband who marries again cannot compel the first wife to share the conjugal home with the co-wife.

28. In Radhabai v. Govinda and Anr., 1988 Mah.L.R. 500 the applicant second wife had sought maintenance which was rejected. This Court held:

"The second wife on the basis of the interpretation of the word contracted the second marriage" is entitled to maintenance. Therefore, the second legally married wife if refuses to live with her husband on the ground that the husband is living with the first wife, despite the offer from the husband to maintain her, is enough to prove neglect and is entitled for maintenance within the meaning of the second proviso to Sub-section (3) of section 125 read with explanations thereunder."

29. Keeping in view the above discussion, object and the purpose which section 125, Criminal Procedure Code is intended to serve, the scope and effect of second proviso to Sub-section (3) and especially the explanation appended thereto, I am of the opinion that the said proviso in substance also governs subsection (1) of section 125, Criminal Procedure Code.

30. In the case under consideration, though in the application, there was no ground that maintenance was claimed on the ground of separate residence, yet in the reply as also during the evidence, the original non-applicant had offered to maintain the original applicant at his residence along with the first wife. It is on account of this offer that the wife had claimed separate residence. This, obviously could be examined by the Court while considering the application for maintenance under section 488(1), Criminal Procedure Code and the learned Additional Sessions Judge, rightly taking the said aspect into consideration awarded maintenance in favour of the wife.

31. An argument was advanced by the learned Advocate for the original non-applicant before me, that the second wife at the time of marriage knows that the first wife is living and having married with open eyes, cannot claim a separate residence. This question came before the learned single Judge of this Court (Nagpur Bench) in case of Radhabai v. Govinda and Anr. (cited supra). In this case, the application of the wife for maintenance was rejected by the Magistrate and the revision preferred by him before the Sessions Court was also rejected. In this case, the learned Advocate for the applicant/wife had contended that since the non-applicant had contracted marriage and his 1st wife was living with him and, therefore, applicant refused to live with him; which itself amounts to neglect on the part of the non-applicant. Admittedly, the applicant therein was the second wife of the non-applicant as is the case in the application before me. It was urged therein by the learned Advocate for the applicant wife that under the circumstances, the separate residence demanded by the second wife on account of the fact that the non-applicant was living with the first wife, should itself to be taken as a just ground for the applicant for her refusal to live with him. In support of this contention, reliance has been placed on the case reported in case of Subanu @ Saira Banu v. A.M. Abdul Gafoor (cited supra). On the basis of the ratio of the Supreme Court judgment it was contended by the learned Advocate for the applicant wife therein, that the offer made by the husband in view of the fact that the first wife was living with him, was itself a circumstance for her to refuse to live with her husband. It was also urged by the learned Advocate for the applicant wife therein, that it is immaterial whether the aggrieved wife is the first or the second wife, for the purpose of claiming maintenance. In Radhabai v. Govinda (supra) reliance was placed on Tejabai Shankarrao v. Shankanao Baswanappa (supra), where it had been argued that the 'just ground' or 'sufficient reason' of a husband contracting marriage with another wife was only available to first wife vis-a-vis the second, and, not the second wife vis-a-vis the first and that the provision was not made for the benefit of the wife, who, with open eyes, marries a husband, who has already contracted a marriage, but this argument was rejected by the division Bench of this Court. The arguments which are advanced by the learned Advocate for the applicant namely original non-applicant husband before me, were in fact the arguments advanced by the learned Advocate for the non-applicant husband in the said case, and the same were rejected by the Division Bench and single Judge of this Court in the case referred to above. I have no reason whatsoever to take a different view in the matter.

32. In Tejabai Shankarrao v. Shankarrao Baswanappa (supra) the Division bench of this Court after interpreting the words "If a husband has contracted marriage with another wife" emphasized that the verb used in proviso is present perfect viz. "has contracted" and not "contracts", held that it cannot be said that it is only available to the first wife vis-a-vis the second and not to the second wife vis-a-vis the first. It has been further pointed out that the marriage may have been contracted at any time and will refer to first as well as the second marriage.

33. In Mst. Dhan Kaur and Ors. v. Niranjan Singh AIR 1955 Cal. 10S, the Calcutta High Court after interpreting the phrases "has contracted" has been held that the phrase is sufficiently wide to entitle the second wife to its benefit even in case where the husband has not married for the third time during the lifetime of the second wife.

34. On the question of restitution of conjugal rights and refusal of wife to stay with the husband when the husband is staying with another wife, there is number of judgments. In Mst. Dhan Kaur and Ors. v. Niranjan Singh (supra) it is held that where the husband obtains a decree for restitution of conjugal rights against his second wife in whose favour a prior order for maintenance has been passed under section 488, and the husband is living with the first wife that would be a just ground on the part of the second wife to refuse to live with him even if he had made an offer to the second wife inviting her to live with him at the same house with the first wife. For this proposition, reliance has been placed on Fakruddin Shamsuddin Saiyed v. Bai Jenab, AIR 1944 Bom. 11.

35. The Punjab and Haryana High Court in Sampuran Singh v. Gurdev Kaur and Anr., 1985 Cri.LJ, 1072, has laid down that the rule that in the presence of the decree for restitution of conjugal rights against the wife, she has no right to claim maintenance has a qualification. The wife can still claim maintenance in the presence of a decree for restitution of conjugal rights against her if the conduct of the husband is such which obstructs her to obey such a decree, and the presence of another woman in his house as his wife or mistress is obviously a valid ground for her to remain away from him and yet being a destitute to claim maintenance.

36. In Babulal v. Sunita, 1987 Cri.LJ. 525, it has been laid down that the social object that section 125, Criminal Procedure Code is intended to servecompels liberal construction and in the absence of any statutory bar the wife's application for maintenance under that section cannot be rejected merely because the husband has obtained a decree for restitution of conjugal rights against her and she declines to comply with it. It is further held that second proviso to section 125 is in fact intended to meet such a case and the Magistrate can decide whether her refusal is justified.

37. In view of this position, I do not find any merit in this revision and the revision is hereby rejected.