BANABIBI SIKANDARKHAN Vs. SIKANDARKHAN UMARKHAN
HIGH COURT OF GUJARAT
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(1.) Petitioner No. 1 is the wife of opponent No. 1 who claimed maintenance for herself and for minor son born out of the wedlock between the parties. The marriage of petitioner No. 1 and opponent No. 1 took place some time in the year 1975 according to the Mohmedan law and customs at village Garadi Taluka Sinor District Vadodara. The petitioner wife alleged that the opponent husband was staying at village Palej and carrying on business as well as doing service in Railway and was earning about Rs. 1 500 month. That after the marriage she lived with the opponent husband but some time thereafter she was severely beaten and driven out. Again after some time she had gone to live with the opponent husband but she was driven out this time also Minor son on whose behalf also maintenance is claimed was born on 17/06/1976 The application for maintenance under sec. 125 of the Criminal Procedure Code was filed on 23/07/1979 The trial court rejected that application by its order dated 26/05/1981 Being aggrieved by that order the petitioner wife preferred Criminal Revision Application No. 63 of 1981 in the court of Extra Assistant Sessions Judge Vadodara. The learned Extra Assistant Sessions Judge by his order dated 26/11/1981 held that minor son was entitled to maintenance at the rate of Rs. 50.00 per month. But he confirmed the judgment and order of the trial court rejecting the claim of maintenance of the petitioner wife. Hence this special criminal application by petitioner wife.
(2.) Both the courts below to say the least have adopted a perverse approach while considering the evidence of the petitioner wife. The petitioner wife did state in her deposition that she was being beaten and driven away since the opponent-husband wanted to marry again. The petitioner wife did give the details with regard to the second marriage She did say that the opponent husband had married one Bai Jubeda. Her deposition regarding second marriage-has not been challenged at all in the cross-examination and therefore there was no reason why this part of her evidence should not have been believed by the courts below. As a matter of fact the trial court did believe this position. The learned Extra Asst. Sessions Judge has erroneously not believed this part of the deposition of the petitioner-wife inasmuch as be could not have reappreciated the evidence in revision. Once the fact of second marriage by the husband is believed would it not be a sufficient ground for wife to stay separate and claim maintenance from husband ?
(3.) Both the courts below proceeded on the footing that because opponent-husband belonged to Mohmedan community and as the Mohmedan law permits a Mohmedan male to keep four wives at a time this ground of second marriage cannot be treated as a reasonable ground for staying separate and claim maintenance. With utmost respect for the learned Magistrate and the learned Extra Asst. Sessions Judge who decided the present case I express my inability to agree with them. If the view taken by the courts below is accepted then it would mean that a particular type of conduct or behaviour which may be permissible under personal law of a party cannot be set up as a ground for claiming maintenance. The obvious consequence of the aforesaid proposition would be that a husband belonging to Hindu community may keep a mistress or a concubine with him and say that law does not prohibit him from keeping a mistress and/or a concubine and therefore this cannot be a ground for his wife to stay separate and claim maintenance. This would obviously be absurd and such an argument cannot be sustained even for a moment for the simple reason that 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 ones behaviour or conduct does not become an irritant or a source of mental agony to another. Having regard to the dominating position of male in the Indian Society it should be all the more necessary for husband to see that he behaves in such restrained fashion that his behaviour and conduct does not prove to be a source of mental agony to his wife. The behaviour complained of by the wife may be perfectly legal and even permissible under personal law of the husbad. But if such behaviour proves to be an irritant to the wife or it becomes a source of mental agony then the same can surely be made a ground for staying separate and claiming maintenance. No self-respecting woman would like that her husband may contract a second marriage. If second third or even fourth marriage is permissible under Mohmedan law a Mohmedan male may indulge in that luxury. At the most 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. In a given case Mohmedan wife would surely be entitled to live separate and claim maintenance solely on the ground that the very idea of contracting second marriage by her husband is abhorrent to her mind and therefore the second marriage by her husband causes mental agony and cruelty to her. In such a situation husband cannot take shelter under his personal law and claim immunity from paying maintenance to his wife.;
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