AZIZ MOHD Vs. MST SAYDA BEGUM

JUDGEMENT

(1.) AN interesting, though an abstract, question of law that has been referred for decision by a learned single Judge is: Whether a wife in terms of first proviso to Sub-section (3) of Section 488 Cr. P. C. can refuse to live with her husband and claim separate maintenance from him only on the ground that he has contracted a second marriage ? As is apparent from the order of reference, the necessity for making the reference arose because of divergence of judicial opinion on the question. Some courts have held that the taking of the second wife or keeping of a mistress by the husband is by itself not sufficient for passing an order of maintenance against the husband, unless it is proved that the husband has been guilty of neglect or refusal to maintain his wife. See Ishar v. Soma Devi AIR 1959 Punj 295 : 1959 Cri LJ 76; Bela Rani v. Bhupal Chandra and Iqbalunnisa Begum v. Habib Pasha in this connection.

(2.) A contrary view has been taken in some cases, and it has been held that neglect or refusal, or no neglect or refusal, the husband is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife. This view has been taken in Dewan Singh Wasawa v. Harbans Kaur Dewan Singh, H. Syed Ahmad v. N. P. Taj Begum AIR 1958 Mys 128 : 1958 Cri LJ 1201; Abdul Ghaffar v. Hafiza Khatoon and in Biro v. Behari Lal AIR 1958 J and K 47 : 1958 Cri LJ 1481 wherein a Division Bench of this Court expressly dissented from the view expressed in (supra) and held that a wife would be entitled to maintenance merely on the ground that the husband had contracted a second marriage and that 'it was not proper to hold that in spite of the proof of second marriage of the husband, a wife claiming maintenance was still required to satisfy the conditions laid down in Clause (I) of Section 488 Cr. P. C. namely, to prove neglect or refusal to maintain by the husband.

(3.) RECONCILING these two directly opposite views, it has been held by some courts that there can be no manner of doubt that under Subsection (1) of Section 488 Cr. P. C. before a Magistrate can pass an Order, he must be satisfied in regard to two matters namely: that the husband has sufficient means and that he has neglected or refused to maintain his wife. Where the husband offers to maintain his wife on the condition of her living with him and the court finds that the offer has been rejected by the wife on the ground that the husband has contracted a second marriage, it would be aiust ground' for her to stay away and still claim maintenance. Reference in this connection may be made with advantage to Smt. Ranjit Kaur v. Dr. Avtar Singh AIR 1960 Punj 221 : 1960 Cri LJ 516 and Govindram Narandas v. Ratanbai Nathuram AIR 1956 Saurashtra 105 : 1956 Cri LJ 1437, where Chief Justice Shah, opined that theoretically sneaking where a wife is living away 'from the husband on the ground that the husband has contracted a second marriage, an initial neglect or refusal by the husband is no doubt necessary to be made out in order that the Magistrate can maintain the wife's application for maintenance, but