BADRUDDIN Vs. AISHA BEGUM

JUDGEMENT

(1.) This revision application arises out of a proceeding under Sec. 488, Criminal Procedure Code. Smt. Aisha Begum filed an application for maintenance against her husband Badruddin. Her case was that she and her husband lived together for six years. When the applicant fell ill, her husband abandoned her, and contracted a second marriage. Smt. Aisha Begum, therefore, claimed maintenance from her husband. Badruddin offered to keep his wife in his house, and declined to pay her maintenance. The learned Magistrate held that Smt. Aisha Begum was entitled to live separately from her husband, and ought to get maintenance from her husband. The court, therefore, ordered, Badruddin to pay Smt. Aisha Begum maintenance at the rate of Rs. 60.00 per month. A revision application filed by Badruddin was dismissed by the learned Addl. Sessions Judge of Kanpur. Badruddin has, therefore, come to this Court in revision. Smt. Aisha Begum was Badruddin's first wife. He conceded that he has contracted another marriage. The learned Magistrate held that, in view of Badruddin's second marriage, the first wife is entitled to live separately from her husband. The Court relied upon the following clause appearing in Sub-section (3) of Sec. 488, Cr. P.C.:-

(2.) If this provision is effective, Smt. Aisha Begum is obviously entitled to live separately from her husband.

(3.) But Mr. Sadiq Ali appearing for Badruddin attacked that part of the provision of Sec. 488, Criminal Procedure Code on a variety of grounds. He urged that that provision violates the fundamental right of Musalmans. It was urged that the provision violates Art. 25 of the Constitution. Clause (1) of Art. 25 is in these terms:-