Decided on July 08,1971

HYDERBAIG Respondents


- (1.) This is a reference by the learned Sessions Judge of Nizamabad under Sec. 438 Cr.P.C. Chand Begum, wife of Hyder Baig filed a petition under Sec. 488 Cr.P.C. against her husband claiming maintenance at the rate of Rs. 100/- per month. She alleged that her husband was always illtreating her, that she was compelled to file a petition for maintenance on an earlier occasion also and that her husband induced her to come back to him promising to treat her well but that he started illtreating her again. About three years prior to the filing of the petition he took her to the house oE her parents and left her there and did not care about her afterwards. He went to the length of foisting a false case of theft against her father and brothers; She also mentioned that the husband had married again. The husband admitted the second marriage. In the counter filed by the husband, while denying the allegations made by the wife he stated that his wife left his house of her own accord and that he was prepared to receive her back if she was willing to go and live with him. When the wife was examined as P.W; 1 she mentioned in her chief-examination that her husband had married again. She was asked in cross-examination whether she was willing to go back to her husband. She said "I am ready to go provided the respondent keeps me in a separate house and maintains me". The husband who gave evidence as R.W. 1 admitted that he had married a second wife. He stated in examination in chief "I am willing to maintain her and provide her separate residence." In cross-examination he said "I will keep her in, a house for Rs. 5/- or Rs. 6. I am not ready to give her any particular amount, but I will maintain her according to our standard of living". The only point which the learned Magistrate considered was whether the wife was entitled to an order for maintenance under Section 488 on the sole ground of the second marriage of the husband. Purporting to follow the decision of Ananthanarayana Ayyar, J., in Iqbal Unisw Begum us. Habit Parha the learned Magistrate rejected the claim of the wife. He also referred to the willingness of the wife to go back to her husband provided he kept her in a separate house and maintain her and the readiness of the husband to provide a separate residence for her and to maintain her, and remarked that the father of the wife was evidently an hurdle in the way of the wife and husband coming together. On a revision petition filed by the wife the learned Sessions Judge thought that the mere second marriage of the husband was sufficient to entitle the wife to claim maintenance.
(2.) He referred to the observations of my brother Kondaiah, J. in Shankaraiak vs Annapurnamma. The learned Sessions Judge therefore made this reference to the High Court under Section 438 Cr.P.C. recommending that the order of the Magistrate may be set aside and that the case may be remitted to the Magistrate to determine the rate of maintenance. A variety of views have been expressed by different courts and Judges on the question raised by the learned Sessions Judge. Some learned Judges have held that the mere second marriage of a husband is sufficient to entitle a wife to claim maintenance under Sec; 488 Cr. P. C. Some learned Judges have based their conclusion on the explanation to the first proviso to sub-section (3) of Sec. 488, Other learned judges have based their conclusion on S 18 (2) (d) of the Hindu Adoptions and Maintenance Act, 1956 and its fore-runner section 2 (4) of the Hindu Women's Right to Separate Maintenance and Residence Act, 1946. Some learned judges have taken the view that mere second marriage is no ground for making an order under Sec. 488 Cr. P. C. in the absence of proof of neglect or refusal by the husband to maintain the wife. Other learned Judges while agreeing that mere second marriage is not a ground for making an order under Sec 4 88 Cr. P. C. have held that second marriage is ordinarily a sufficient reason for a wife to refuse to live with her husband and if a husband insists that the wife should live with him there is in law a neglect or refusal to maintain the wife. In this confusing complexity and divergence of views it is just as well that I first consider Section 488 Cr. P. C. unaided by authority.
(3.) Section 488 Cr; P. C. in so far as it is relevant for the purposes of the present case is follows : - "488 (1,:-If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself.........a Magistrate of the First Class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child......... (2). Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance. (3). If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may for every breach of the order, issue a warrant for levying the amount due in the manner herein before provided for levying fines, and may sentence such person .......... to imprisonment for a term which may extend to one month or until payment if sooner made ; Provided that, if such person offers to maintain his wife on condition of her living with him and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.;

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