SHAIKH BABBU S O SHAIKH SULEMAN Vs. RASHIDA

JUDGEMENT

(1.) THE respondent No. 1 (hereinafter referred to as original applicant, had filed an application for grant of maintenance under section 125 of the Cri. P. C. which was dismissed by the J. M. F. C. Gadchiroli vide judgment dated 29th January, 1991. The trial Court came to the conclusion that the present applicant (hereinafter referred to as original non-applicant) had tried to fetch the original applicant; no illtreatment by way of beating by the original non-applicant and his first wife is proved by the original applicant, who is the second wife, for want of supporting evidence; that the original applicant was not entitled to claim maintenance allowance against her husband during lifetime of 1st wife; that in accordance with section 214 of Chapter 14 of the Mohammedan Law, marriage being a contract, the provisions of maintenance are left to a written agreement of maintenance and besides that no neglect or refusal has been proved by the original applicant on the part of her husband to maintain her, but, on the contrary, the original applicant on her own accord has chosen to live with her parents without reasonable cause. The original applicant approached the Sessions Court in Revision and the learned Additional Sessions Judge, Gadchiroli, vide judgment dated 26-9-1996, allowed the revision and granted maintenance of Rs. 500/- in favour of the original applicant from the date of impugned order of the trial Court dated 29-1-1991. The learned Additional Sessions Judge held that the Magistrate was right in holding that refusal and neglect to maintain was not proved and the original applicant/wife was therefore not entitled to claim the maintenance. Nevertheless, the learned Additional Sessions Judge, found that the offer to maintain the original applicant by the original non-applicant, did not appear to be bona fide and it does not appear from the evidence on record that the non-applicant husband made a separate provision for her residence and as such, offer to maintain by him is not bona fide. These findings were given in view of the fact that the original applicant was the second wife of the original non-applicant. The original non-applicant has, therefore, approached the Court for revision.

(2.) THE learned Advocate for the present applicant, urged before me that the original applicant had left the matrimonial home after about 6 months of marriage and as such, there has been no refusal or neglect and in this respect, it has been pointed out that both the courts below have in fact held that there has been no neglect or refusal on the part of the original non-applicant to maintain the original applicant. It has also been pointed out that the original non-applicant was always ready and willing to take the original applicant with him and evidence to that effect was led, but the original applicant was not prepared to stay with him. It is next urged that the original applicant being the second wife, very well knew that the first wife was living with the original non-applicant and as such, knowing the same, the original applicant can not claim separate residence nor could claim any maintenance on this count. It was next pointed out that explanation to sub-section (3) of section 125 is restricted to the said sub-section alone and is not attracted in so far as section 125 (1) of Cri. P. C. is concerned and that explanation speaks of marriage afterwards and not prior marriage. According to the learned Counsel for the applicant, there was no case for interference by the Additional Sessions Judge in revision and therefore, the revision in question be allowed.

(3.) THE learned Advocate for the original applicant urged before me that explanation to section 125 (3) is not restricted to sub-section (3) thereunder, but it applies to section 125 (1) Cri. P. C. as well. He urged before me that the offer of husband was made when he was living with another wife which gives justification to the wife not to live with the other wife but to seek separate residence. A number of authorities have been relied upon by the learned Advocate for the original applicant to which reference would be made while discussing the matter on merits.