G SUBHAN BASHA Vs. SHAM SHUNNISA BEGUM

JUDGEMENT

(1.) THE husband is the petitioner in this revision which he has filed against the order dated 14-12-1978 passed by the Additional Munsiff Magistrate, Kurnool in M. C. No. 68/1977. The wife, who is the respondent herein, has filed an application under Section 125 of the Criminal Procedure Code, claiming maintenance on the ground that the wife and husband were married on 14-5-1972 and thereafter they lived together happily for quite some time. Thereafter the husband and his parents started illtreating her and even had beaten her and administered poison to her. Subsequently, she was sent away to her parents' house. The plea of the husband was that while the wife was pregnant in the 7th month she went to her maternal uncle's place to attend some ceremony and at that time she was wearing about 49 Tulas of gold jewellery which was given to her at the time of her marriage and from there she went to her parent's house- and never returned. In spite of several attempts by the husband she refused to return to the husband. So much so the husband was forced to file a suit for restitution of conjugal rights and this suit which is O. S. No. 463/1974 on the file of the District Munsiff, Kurnool was decreed. Thereafter the wife did not join her husband and thereafter the husband was forced to file execution petition. Ultimately the husband married the second wife. This is an admitted fact. Therefore, the trial Court on the basis of this aspect of second marriage came to the conclusion that having regard to the proviso and the explanation and second proviso to Sub-section (3) of Section 125 of the Criminal Procedure Code, the wife was entitled to refuse to live with her husband when he has performed the second marriage and still claim maintenance and consequently granted maintenance to her.

(2.) MR. Mirza Ghose Baig, the learned advocate appearing on behalf of the husband, strenuously contends that the previous circumstances, including the decree of the civil Court would clearly show that all along the husband has been endeavouring to get back the respondent-wife but she was evading and insisting not to come and live with her husband. The learned advocate submits that the explanation to Sub-section (3) would not apply in these circumstances and therefore the trial court was incorrect in granting the maintenance. I regret I cannot accede to the contention advanced by Mr. Mirza Ghouse Baig. The contention advanced by Mr. Ghouse Baig could have been cogent had the petitioner not married for the second time, but the every fact that the petitioner herein had married for the second time while the respondent was still alive was enough for the court not to enquire as to the bona fides of the husband to ask the wife to live with him or the justification of the wife refusing to live with her husband, because the second proviso to Sub-section (3) of Section 125 of the Cr. P. C, provided that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing. The plain reading of this proviso would clearly show that the Magistrate did have the jurisdiction to enquire into the offer made by the husband whether it was bona fide or not and also to enquire with regard to the refusal of the wife to live with her husband as to whether she was justified or not, but the explanation to Sub-section (3) would show that the discretion to enquire is taken away when the husband marries for the second time or if he keeps a mistress, because that explanation provides that where a husband has contracted marriage with another woman or keeps a mistress, it shall be considered as a just ground for his wife's refusal to live with him. It may thus be seen that the very fact of marrying another woman or keeping a mistress would entitle his wife to refuse to live with the husband and Still claim maintenance. I am, therefore, of the opinion that the trial Court was correct in granting the maintenance.

(3.) I, therefore, see no substance in this revision and it is therefore dismissed.