It has been observed by the Supreme Court that Section 125, Cr.P.C overrides the personal law if there is any conflict between the two. Although a Muslim man has right to have more than one wife yet Section 125, Cr.P.C. confers a right on the first wife to live separately if her husband contracts second marriage, and claim maintenance from him.
In view of the authoritative pronouncement of the Apex Court, this cannot be a valid ground to refuse maintenance to a Muslim wife that her husband can keep four wives at a time according to his personal law. The question cannot be seen in the light of a Muslim husband but it must be seen with reference to a right of his wife, who has been given right under Section 125, Cr.P.C._
Rajasthan high court
Mumtaz Begum vs Yusuf Khan on 5 November, 1998
Equivalent citations: 1999 CriLJ 322, 1999 (1) WLC 528
Author: G Gupta
Bench: G Gupta
ORDER G.L. Gupta, J.
1. This revision petition is directed against the order dt. 26-10-1996 passed by the Judge, Family Court, Udaipur whereby he dismissed the application of the petitioner under Section 125, Cr.P.C. holding that she has no just cause to live separately on the ground of contracting second marriage by her husband.
2. The undisputed facts are that petitioner-Mumtaz Begum was married to Yusuf Khan on 25-3-88. There was trouble in the marital relations. Yusuf Khan started keeping one Smt. Roshan Begum as his wife after performing ‘Nikah’. The petitioner filed an application under Section 125, Cr.P. C. stating that she was subjected to cruelty by her husband and as he has married again it was not possible for her to live with him and she was entitled to maintenance. The case set up by the husband-respondent was that he did not cause cruelty to the petitioner and she herself left the matrimonial home. The learned Judge, Family Court framed three issues which are to the following effect:-
(i) Whether petitioner-Mumtaz Begum is unable to maintain herself.
(ii) Whether respondent has sufficient means to provide maintenance to the petitioner.
(iii) Whether the respondent has neglected the petitioner.
3. Both the sides led oral evidence. The learned Judge found issues Nos. 1 and 2 in favour of the petitioner. Issue No. 3 was decided against the petitioner on the ground that a Muslim husband can have four wives at a time, and therefore, there is no just cause for the petitioner for not living with her husband. He, therefore, refused maintenance to her.
4. Mr. Acharya contended that on the basis of the Personal Law maintenance could not be denied to the petitioner under Section 125, Cr.P.C. He relied on the cases of Mohd. Ahmed Khan v. Shah Bano Begum AIR 1985 SC 945 : 1985 Cri LJ 875 and Begum Subanu alias Saira Banu v. A.M. Abdul Gafoor AIR 1987 SC 1103 : 1987 Cri LJ 980,
5. Mr. Gehlot, on the other hand, supported the order of the trial Court. According to him, the Personal Law permits a husband to have more than one wife and it cannot be just cause for a Muslim wife not to live with her husband on the ground that he has contracted second marriage.
6. I have carefully considered the above arguments. Conjugal house cannot be maintained and run smoothly unless both the spouses act with self-restraint and have respect for the feelings of each other. In matrimonial relations, it is expected of both the spouses to behave in such a fashion that one’s behaviour or conduct does not become an irritant or a source of mental agony to another. No self-respecting woman would like that her husband may contract a second marriage. If second, third or even fourth marriage is permissible under Mohamedan Law, a Mohamedan male may indulge in that luxury. For that he may not be liable for offence of bigamy, but if such a behaviour proves to be an irritant to his wife and if the same becomes a source of mental agony to her, he cannot take shelter under his Personal Law and say that he is not liable to pay maintenance to his wife living separately. The Explanation to Sub-section (3) of Section 125, Cr.P.C. does not make any difference between one party or the other. Nor is there any indication to show that it applies only to parties governed by the law of monogamy. The Criminal Procedure Code is a general law giving a summary and speedy relief to the destitute wife and children who are entitled to be maintained by the husband. One cannot read into the Explanation what is not found in it because some hardship of inconvenience is caused to a husband governed by the Personal Law.
7. The Apex Court in the case of Shah Bano (supra) has clearly held that the Explanation to the second proviso to Section 125(3), Cr.P.C. confers upon the wife the right to refuse to live with her husband if he contracts another marriage. It has been observed by the Supreme Court that Section 125, Cr.P.C. overrides the Personal Law, if there is any conflict between the two. The legal position has been stated in the case of Saira Banu (supra) which is reproduced hereunder at page 985 of Cri LJ :-
The Explanation places a second wife and a mistress on the same fooling 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 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 feeling 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.
x x x x x x The section is intended to wives and parents who are unable to maintain themselves. The three essential requisities to be satisfied before an order of maintenance can be passed are that: (1) the person liable to provide maintenance has sufficient means; (2) that he has neglected or refused to maintain; and (3) the dependent/ dependents is/are unable to maintain himself/ herself/themselves as the ease may be. The Legislature being anxious that for the sake of maintenance, the dependents should not resort to begging, stealing or cheating, etc. the liability to provide maintenance for children has been fixed on the basis of the paternity of the father and the minority of the child and in the case of major children on the basis of their physical handicap or mental abnormality without reference to factors of legitimacy or illegitimacy of the children and their being married or not. In the case of wives, whether their ties of marriage subsist or not, the anxiety of the Legislature is that they should not only not resort to begging, stealing or cheating, etc. but they should also not feel compelled, for the sake of maintaining themselves, to resort to an adulterous life or in the case of divorced women, to resort to marriage, if they have sentimental attachment to their earlier marriage and feel morally bound to observe their vows of fidelity to the persons whom they had married.
x x x x x x x x x Correspondingly a right has been conferred on the wife 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. As already stated it matters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress. Therefore, the respondent’s contention that his taking another wife will not entitle the appellant to claim separate residence and maintenance cannot be substained. The Explanation is of uniform application to all wives including Muslim wives whose husbands have either married another wife or taken a mistress.
8. The ratio of the above cases is that although a Muslim man has a right to have more than one wife yet Section 125, Cr.P.C. confers a right on the first wife to live separately if her husband contracts second marriage, and claims maintenance from him.
9. In view of the authoritative pronouncement of the Apex Court, this cannot be a valid ground to refuse maintenance to a Muslim wife that her husband can keep four wives at a time according to his Personal Law. The question cannot be seen in the light of the right of a Muslim husband but it mast be seen with reference to a right of his wife who has been given right under Section 125, Cr.P.C. The learned Judge of the Family Court has obviously erred when he rejected the application of the petitioner. The application deserves to be allowed.
10. Consequently, this revision petition is allowed. The order of the trial Court is set aside. Though evidence has been led by the parties on She quantum of maintenance allowance, yet the trial Court has not determined the maintenance. Therefore, the case is remanded to the trial Court with a direction to decide the question of quantum of maintenance allowance within two months.
Mumtaz Begum vs Yusuf Khan on 5 November, 1998