MEHERUNNISSA MINOR Vs. ABDUL SALAM

JUDGEMENT

(1.) A question of law of general importance is raised in this Crli Revision case namely "whether in an application under section 488 Cr. P.C., neglect or no neglect, the husband is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife". This court in Iqbalunnisa Begum Vs. H^bib Pasha has taken the view that the husband is not liable while the preponderance of opinion of the other High Courts seems to be that the husband is liable Vide Mohamed Hannefa Vs. Mariaim Syed Ahmed Vs. N.P Taj Begum, and Maiki Vs. Hamraj In view of this conflict in the decisions, I consider that it is necessary that the matter should be decided by a Division Bench of this Court. The papers will therefore be placed before my Lord the Chief Justice for orders as to posting.

(2.) This revision case coming on for hearing on Tuesday the 23rd day of January 1973 in pursuance of orders of this court dt. 7-7-1972 and made herein upon perusing the petition, the orders of the lower courts, the other material papers in the case and records in the case and upon hearing the arguments of Mr. P. Innavyareddy, Advocate for the petitioner and of M. Ramachandra reddy, Advocate for the 1st Respondent and of the p ublic Prosecutor on behalf of the State and having stood over for consideration till this day, the court delivered the following :-

(3.) 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 aecording to Muslim custom 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 petitioner 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 2-1-67 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. The first respondent denied having driven away the petitioner after removing her jewels and clothes as alleged, According to him, the petitioner and her father wanted him to sell away his property at his village and settle down at Chittoor, to which course the 1st respondent did not agree and hence the petitioner on her own accord refused to live with him and he never neglected to maintain her and he is ever willing to take the petitioner and maintain her. It is also the case of the petitioner as deposed in her evidence that the first respondent married a second wife. The first repondent in his evidence has admitted his second marriage but stated that after failing in his attempts to get at the petitioner and live with her amicably, he was forced to take a second wife. In support of bis case, the first respondent also examined another witness as R, W. 2 who spoke about his intervention at the instance of the first respondent and requesting the father of the petitioner to send her to the first respondent, The Addl. Munisiff- Magistrate who enquired the petition on the material placed before him came to the conclusion that there was no neglect of the petitioner by the first respondent and accordingly refused to grant maintenance. In the revision petition filed by the petitioner, the learned Sessions Judge, Chittoor, agreed with the conclusion of the learned Magistrate that there was no neglect or refusal by the first respondent to maintain the petitioner. But it was argued before the learned Sessions Judge on behalf of the petitioner that the first respondent has admitted that he contracted a second marriage and the very fact of his taking a second wife will entitle the petitioner to claim maintenance as provided under Sec. 488 Cr. P.C The learned Sessions Judge without any discussion held that the mere fact of the first respondent contracting a second wife Ipso Facto does not entitle the petitioner to maintenance and she is not entitled to the same unless she can establish neglect and refusal by the first respondent to maintain her.