AMEER AMANULLAH Vs. PADIKKARU MANIAM BEEVI

JUDGEMENT

(1.) THIS is a petition under Section 482 of the Code of criminal Procedure in C. C. No. 968 of 1983 on the file of the Judicial Second class Magistrate II, Srivilliputhur.

(2.) THE petitioner herein, who is a Muslim, married the first respondent on 19. 10. 1975 and they be got the second respondent. He then discarded both the respondents when the first respondent was en cointe and she had a still-birth. THE petitioner herein divorced the first respondent on 21. 10. 1981 and took a second wife on 9. 11. 1981. On the application filed by the respondents, the Sub-Divisional Judicial Magistrate, Srivilliputhur, awarded maintenance in the sum of Rs. 100/-per mensem to the first respondent and rs. 50/- per mensem to the second respondent. THE said order was confirmed by the Sessions Judge, Ramnad at Madurai in Cr. R. C. No. 60 of 1982. Execution of the order is now pending before the judicial Second Class Magistrate II, Srivilliputhur and it is to quash this proceeding the petitioner seeks to invoke the inherent powers of this Court.

(3.) THE last line of argument advanced by Mr. Hajee p. K. Jamal Mohamed is that Section 125 of the Code of Criminal Procedure is repugnant to Article 14 of the Constitution, which enshrines in itself the principle of equality before the law and the equal protection of the laws. This contention is based on sub-sections (4) and (5) of Section 125 of the Code of criminal Procedure. It is urged that while the wife who lives in adultery is disentitled to claim maintenance by virtue of sub-sections (4) and (5) a divorced wife incurs no such disability as she does not enjoy the status of a wife and there is thus an invidious discrimination between the two. Sub-sections (4) and (5) of Section 125 run as follows: '(4) No wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband or if they are living separately by mutual consent. (5) On proof that any wife in whose favour an order has been made under this Section is living in adultery, or that without sufficient reason she refuses to live with her husband, or that they are living separately by mutual consent, the Magistrate shall cancel the order.' THEre is no doubt in my mind, tha t these two sub-sections apply only to a wife and not to a divorced wife. THE legal fiction imported in Explanation (b) in Section 125 cannot be extended to these sub-sections. For, a divorced woman is not a wife and there is no question of her committing adultery. THEre is also no question of her refusing to live with her former husband or she and her former husband living separately by mutual consent. With due deference, I am unable to accept the view of the bench of the Kerala High Court in Kunhi Moyn v. Pathumma, (1976) M. L. J. (Crl.)405 that the new definition of wife in Section 125 of the Code of Criminal procedure and the legal fiction implied therein applied to the entire section. But, it is idleto argue that there is any infringement of Article 14 of the constitution. Equality before the law and the equal protection of the laws mean that among equals the law should be equal and should be equally administered and that the like should be treated alike. THEy do not mean that things which are different should be treated as though they are the same and that every law must have universal application, for, all persons who are not, by nature of circumstances, in the same position. A wife does not stand in the same position as a divorced wife. In the case of the former the matrimonial tie exists; in the case of the latter it is extinct and that makes the vital difference. THEy are not equals and the doctrine of equality before the law or the equal protection of the laws cannot be invoked as between them. This contention must also fail.