MUSTAFA SHAMSUDDIN SHAIKH Vs. SHAMSHAD BEGUM MUSTAFA SHAIKH

JUDGEMENT

(1.) THE petitioner married respondent No. 1 on May 20, 1977 and a daughter, respondent No. 2 was born out of the wedlock on May 3, 1978. The parties fell apart within four months of the marriage and the wife started residing with her parents. On October 29, 1979 and on January 23, 1980, the petitioner made efforts to bring his wife back to matrimonial home but the efforts did not succeed for one or the other reason. On January 24, 1980, the petitioner served legal notice on the wife requesting her to return back to matrimonial house. The wife gave reply on February 14, 1980 complaining that she was required to leave the house due to the cruel treatment meted out by the petitioner. On February 19, 1980, the petitioner instituted Reg. Civil Suit No. 171 of 1980 against the wife claiming restitution of conjugal rights. The wife filed written statement on September 10, 1980.

(2.) ON September 11, 1980, the wife along with her minor daughter instituted Criminal Miscellaneous Application No. 33 of 1980 in the Court of Judicial Magistrate, I Class, Solapur, under section 125 of Code of Criminal Procedure. The wife claimed that she and her minor daughter are unable to maintain themselves and the petitioner had neglected and refused to maintain them. The wife demanded maintenance amount of Rs. 200/- per month and claimed Rs. 100/- per month for her daughter. The proceedings were resisted by the petitioner but, during the pendency of the proceedings, on May 8, 1983, the petitioner contracted second marriage. The parties are Muslims and the petitioner was entitled to contract second marriage even during the lifetime of the first wife. The proceedings under section 125 of the Code were decided by Judicial Magistrate on June 18, 1984 awarding maintenance of Rs. 100/- per month to the wife and Rs. 30/- per month to the child. The trial Magistrate held that the wife had left the house without any cause but, as the petitioner had contracted second marriage prior to the date of the order, the wife was entitled to live separately. The trial Magistrate recorded a finding that the wife was unable to maintain herself and her husband had neglected or refused to maintain her and the minor daughter. The trial Magistrate awarded maintenance from the date of the order i. e. , June 18, 1984. The petitioner carried revision application before the Sessions Court, Solapur, and the wife also preferred revision application to claim that maintenance amount should have been made payable from the date of application. The Sessions Judge, Solapur disposed of both the revision applications by judgment dated May 26, 1986. The revision application filed by the husband was dismissed while that of the wife was allowed. The Sessions Judge directed that quantum of amount settled by Magistrate should be payable from the date of application under section 126 of the Code i. e. from September 11, 1980. The order passed by the Sessions Court is under challenge in this petition filed under Article 226 of the Constitution.

(3.) THE petition was placed before Division Bench of this Court as the petitioner challenged the constitutional validity of Explanation to sub-section (3) of section 125 of the Code of Criminal Procedure. The Explanation to sub-section (3) provides that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wifes refusal to live with him. Mr. Maniyar, learned Counsel appearing on behalf of the petitioner, stated, at the outset, that the petitioner is not pressing the contention about the vires of the explanation and only grievance is about the exact ambit of the explanation to sub-section (3 ). The learned Counsel urged that it is not permissible for the Court to consider the wifes refusal to live with the husband as just merely because the husband has contracted second marriage and it is necessary that the Court must ascertain under what circumstances the husband contracted second marriage and whether that was because of the fault on the part of the wife. Mr. Maniyar, did not dispute the quantum of maintenance amount granted by the two courts below and very fairly stated that the liability of the petitioner to pay maintenance to his minor daughter cannot be debated. In view of the contention raised at the Bar, the short question for our determination is whether it is permissible for the Court to deny maintenance to the wife because the husband has contracted the second marriage for the fault of the wife.