MOHORUNNISSA Vs. ABDUL SALAM AND ANOTHER,

JUDGEMENT

(1.) This Criminal Revision case is referred to a Bench as a question of law of importance is involved with regard to the right of a wife to claim separate maintenance under Section 488, Criminal Procedure Code from her husband on the ground that he married a second wife. In the decision Iqbalunnissa Begum v. Habib Pasha, AIR 1961 Andhra Pradesh 445 : ((1961) 2 Cri LJ 604) a single Judge of this Court took the view that as provided under Section 488 Criminal Procedure Code a wife cannot claim maintenance from her husband on the ground that he contracted marriage with another wife without proof of neglect or refusal to maintain her on the part of the husband. On the ground that the preponderance of opinion of the other High Courts seems to be contrary the matter has been referred to a division Bench for decision. That is how the matter has come up before us.

(2.) The brief facts leading to the filing of the petition are that the petitioner was legally married to the first respondent on 10.5.1964 according to Muslim customs and rites and both of them lived as wife and husband for some time : The allegation of the petitioner is that subsequently the first respondent drove her away by taking her jewels and clothes on which the petitioners got issued a registered notice on 31.12.1964 for which there was no reply from the first respondent. Even when the petitioner gave birth to a male child, the first respondent did not care to see the petitioner and the child died subsequently. The petitioner got a further notice issued on 2.1.1967 to the first respondent and to that notice the first respondent has given a reply with false allegations. The first respondent has wilfully neglected the petitioner and hence she is entitled to claim separate maintenance at the rate of Rs. 30/- per month.

(3.) The only Point urged in this revision case is that as provided under Section 488 Criminal Procedure Code a wife is entitled to claim maintenance from her husband merely on the ground that the husband contracted a second marriage without any need to prove any neglect or refusal by the husband to maintain her.