NOOR BANO Vs. MOHAMMED RIAZ

JUDGEMENT

(1.) This miscellaneous petition is directed against the order dated October 16, 1986, passed by the Additional Sessions Judge No.1, Jodhpur, by which the learned Additional Sessions Judge allowed the revision petition filed by Mohammed Riaz and set-aside the order dated January 23, 1981, passed by the learned Judicial Magistrate No.4, Jodhpur.

(2.) Petitioner Mst. Noor Bano filed an application under Section 125 Cr.P.C. for the grant of maintenance in the Court of Judicial Magistrate No.4, Jodhpur. It was averred in the application that she was married to Mohammed Riaz in the year 1965, and who remained with her husband Mohammed Riaz upto 19.6.1969. During this period, she was ill-treated by her husband and several times, she was given beating. On 19.6. 1969, Mohammed Riaz sprinkled kerosene oil on her and tried to kill her, but somehow she could manage to save herself. Thereafter she was divorced by her husband and turned out from the house. Mohammed Riaz afterwards contracted second marriage and is living with his second wife, while the applicant has not contracted remarriage and is living with her father. It was further averred in the application that she is unable to maintain herself and, therefore, she may be granted maintenance. This application was opposed by the husband Mohammed Riaz. He denied the allegations of giving Talak by him. He, also, denied the allegations of ill-treatment, sprinkling of kerosene oil on her or any attempt to kill Mst. Noor Bano. He, however, admitted that he contracted second marriage only because Mst. Noor Bano deserted him. It was, also, stated in the reply that Mst. Noor Bano filed a civil suit in the Civil Court for the grant of Mehar on the same grounds and that suit was dismissed by the learned Civil Court and the appeal against that judgment was, also, dismissed. According to him, as Mst. Noor Bano deserted him, he, also, filed a suit for restitution of conjugal rights and that suit was decreed by the Civil Court and an appeal was preferred by the applicant Mst. Noor Bano, which was, also, dismissed. The non-applicant tried to get the decree of restitution of conjugal rights executed, but the applicant refused to live with him and as she is not living with him without any sufficient cause and, therefore, she is not entitled for any maintenance. It was, however, averred in the reply that if the petitioner comes and stays with him then he will arrange for her a separate house and Will maintain her. The applicant, in support of her case, examined herself as A.W.I and, also examined her brother Babu as A.W.2. and her father Ramzan as A.W.3. The non-applicant Mohammed Riaz, in support of his case, examined himself as NAW 1 and produced Mohammed Hanif as NAW 2. The learned lower Court, after trial, came to the conclusion that the applicant was never divorced by the husband nor was she neglected or ill-treated by the husband but the husband has contracted second marriage and as she is unable to maintain herself, the learned trial court, therefore, allowed the application of the applicant (wife) Mst. Noor Bano and awarded the maintenance of Rs. 80/- per month from the date of the order, i.e., with effect from 23.1.1981. Dissatisfied with the order dated January 23, 1981, awarding maintenance to the wife, the husband preferred revision before the learned Sessions Judge, Jodhpur, which was transferred the Court of the Additional Sessions Judge No.1, Jodhpur, for disposal. The learned Additional Sessions Judge No. 1, Jodhpur, by his order dated 16.10.1986, allowed the revision petition, filed by the husband, set-aside the order dated January 23, 1981, passed by the learned Judicial Magistrate No.4, Jodhpur, granting the maintenance to the wife. It is against this order that the wife has filed the present miscellaneous petition.

(3.) It is contended by the learned counsel for the petitioner that in view of the Explanation to Subsection (3) of Section 125 Cr.P.C., even a Muslim wife is entitled to get the maintenance on the ground of contracting second marriage by the husband. The learned counsel for the husband (nonpetitioner), on the other hand, has supported the order, passed by the learned lower Court and submitted that as per the Muslim Personal Law, a husband is entitled to have four wives and, therefore, his second marriage cannot afford a legal ground for the petitioner to live separately from the husband and claim the maintenance. It is further contended by the learned counsel for the non-petitioner that the non-petitioner (husband) was driven to contract the marriage again because the petitioner-applicant, without sufficient cause, failed to live with him and deprived him of the marital rights, but he is ready to keep her as wife even now.