MOHAMMAD AYYUB Vs. MST. ZAIBUL NISSA

JUDGEMENT

(1.) This is a revision filed by the husband and is directed against the order passed by the learned Sub-Divisional Magistrate. Sadar at Muzaffarnagar in procedure (hereinafter referred to as the Code) allowing a maintenance allowance of Rupees 70.00 to be paid by the husband to his wife Zaibul Nissa (opposite Party).

(2.) On the 23rd Sept., 1970, opposite party Smt. Zaibul Nissa filed an application under Sec. 488 of the Code, claiming a maintenance allowance of Rupees 100.00 per month from her husband Mohd. Ayyub. It was alleged by her that she had been married to Mohd. Ayyub about 11 or 12 years back and had lived with him as his wife, performing all her duties and obligations as such. It was alleged that in the beginning the relations between the husband and wife were cordial but subsequently the applicant developed bad habits and he became a drunkard and gambler consorting with persons of ill-repute. It was further alleged that when she tried to persuade her husband, to mend his ways, he ill-treated her, and ultimately after giving her a beating he took all her ornaments and jewellery and turned her out of his house. According to the opposite party, during the later days of her living with him, her husband neglected to provide her even with food and other necessities of life. The case of the opposite party was that when her husband turned her out, she had taken shelter in her father's house. The opposite party went on to allege that the applicant was a fairly well-to-do person but, nonetheless, refused to maintain her. According to the opposite party, after she had been forsaken by her husband, he contracted a second marriage. The applicant filed his written statement denying the material allegations made by the opposite party. He admitted that Smt. Zaibu Nissa was his wife and that she had lived with him as such. He, however, denied that he was either incompetent or impotent or that he ever harassed his wife. He asserted that he had no bad habits and was neither a drunkard nor a gambler. He alleged that throughout the period his wife stayed with him, he had provided her with all necessities of life including clothes and ornaments. She had been, according to him. maintained by him in sufficient comfort. About 10 months earlier, her father, mother and brother had taken her away with them on the pretext that she had to join some marriage. According to the applicant, his father-in-law, who had taken away his wife by mis-representation, had, in spite of repeated requests, refused to send her back. The applicant claimed that when he requested his father-in-law to send back his wife, he asked for a sum of Rs. 1,000.00, and threatened to sell her off to some other party in case he did not comply with his demand. In such a situation, according to Mohd. Ayyub, he had been compelled to take proceedings for restitution of conjugal rights. Mohd. Ayyub did not admit the assertion of the opposite party that he was a well-to-do person. He disclosed in his written statement that the agricultural land belonged to his father and he and his brothers and father lived jointly. He denied that he had the capacity to pay Rs. 100.00 as maintenance allowance to his wife. He offered to maintain his wife provided she was prepared to live with him at his father's house. Both the parties examined themselves and produced evidence in support of their respective cases. The learned Magistrate ultimately passed the order impugned. A revision filed by the applicant before the learned Sessions Judge failed.

(3.) Learned Counsel appearing for the applicant has contended, firstly, that an order under Sec. 488(1) of the Code cannot be passed merely because the husband has remarried. He submitted that while the fact of the husband having contracted a second marriage or taken a concubine may be material under Sec. 488(3) of the Code, it is of no relevance at the stage of Sec. 488(1). There is, in my opinion, no force in this contention. It is true that before an order is passed under Sec. 488(1) of the Code all that the Magistrate has to see is that the husband or the father has sufficient means and yet neglects or refuses to maintain his wife or his legitimate or illegitimate child as the case might be unable to maintain itself. Sub-Section (1) of Sec. 488 is, however, controlled by Sub-Section (4) of that provision. Even if the Magistrate finds that a husband has sufficient means and is neglecting and refusing to maintain his wife, who is unable to maintain herself, he can pass no order, directing a husband to pay maintenance allowance to his wife if the wife 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. Such is the requirement of Sec. 488(4). For the purposes of Sec. 488(3), the legislature has provided that "if a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him." Something which the legislature has considered 'to be just ground' for the purposes of Sub-Section (3) of Sec. 488 cannot but be held to be 'sufficient reason' for the purpose of Sub-Section (4). In the present case, the wife has not claimed maintenance allowance on the ground that her husband had taken a second wife, but on the allegation that her husband had developed bad habits and had beaten and turned her out of his house and had thus refused and neglected to maintain her. The second marriage took place, even according to the opposite party, after she had been turned out from the matrimonial home by the applicant. The allegation made by the opposite party with regard to the applicant having taken to himself a second wife was meant only to show that she had sufficient reason within the meaning of Sec. 488(4) for refusing to live with her husband. It is not possible to accept the contention of learned Counsel for the applicant that the learned Magistrate has passed an order under Sec. 488(1) of the Code against him merely because he had taken to himself a second wife.