ABDUL SALAM Vs. AISHA

JUDGEMENT

(1.) THESE two miscellaneous applications under Section 482 Cr. PC are in the same proceedings under Section 125 Cr. PC and hence they are disposed of together by this single order. Though Application No. 152/85 is directed against the order, dated 4 -1 -1985 is an application under Section 125(5) Cr. PC and the other, dated 21 -7 -1984 disposing of an application under Section 125(4) Cr.PC. The present case has a chequered history. The petitioner was married with non -petitioner on May 22,1970 when the non -petitioner was only eight years of age. For six years she remained with her parents and thereafter she was sent to her husband's place where she is alleged to have stayed only for a period of ten days. During this period, the case of the petitioner is that there was no cohabitation and the marriage was not consummated and this fact is also admitted by the non -petitioner. The petitioner's case is that consequent upon the non -petitioner's going to her parents he tried his best to persuade her to come home but she would not yield to the request and so panchayat of the community has to be summoned. Thereafter a notice was also given to the non -petitioner requesting her to come, but it is alleged that she refused. It is in these circumstances that the petitioner who is governed by the Muslim Personal Law and who could lawfully have more than one wife, remarried in 1978, as a result of which the non -petitioner got annoyed and moved an application for maintenance under Section 125 Cr.PC on June 21, 1978. This application was contested by the petitioner who, inter alia other grounds, submitted that he is ready and willing to maintain her and that it was she who has deserted him, the petition should be dismissed. The trial court vide its order, dated 5 -2 -1981 dismissed the petition against which an appeal was preferred by the non -petitioner and the same was allowed. The petitioner had come in revision to this court but the same was dismissed on the short ground that since the petitioner has contracted a second marriage she is entitled to refuse to stay with him and is entitled to maintenance. The trial court on May 16, 1983 fixed the quantum at Rs. 180/ - p.m. from the date of filing of application. A revision and thereafter an application under Section 482 Cr.PC were preferred against the quantum but the petition met with no success. He, therefore, moved an application and prayed for a decree for restitution of conjugal rights but that too was dismissed and also the appeal against the said judgment and decree. The petitioner filed a suit for declaration and injunction with a prayer that it should be declared that the non -petitioner is not entitled to any maintenance, but that too was dismissed. The petitioner thereafter moved an application under Section 125(4) Cr.PC wherein it was stated by him that he is entitled for marrying four times according to his Personal Law and this cannot be a ground for refusal by the first wife to come and he is ready and willing to maintain her and not only this he is prepared to hire a separate room for her where she can remain separately from his other wife. In this view of the matter his application may be allowed and the maintenance should be refused. This application was dismissed vide order, dated 4 -1 -1985 against which the application No. 152/85 is pending. Prior to this an application was filed under Section 125(5) Cr.PC on 20 -6 -1984 where in also the petitioner has prayed for cancellation of the order on the ground that there was no reasonable and valid reason for herself withdrawing and deserting the petitioner. In this application it was categorically mentioned that the High Court has granted the maintenance on the ground of second marriage but has stated nothing regarding her voluntarily remaining, away and therefore, after accepting application the order of maintenance should be cancelled. This application was rejected vide order, dated 21 -7 -1984 after which the application referred to above under Section 125(4) Cr.PC. was filed but this revision petition was registered in High Court later on and, therefore, has been numbered 157/85.

(2.) MR . Garg, appearing for the petitioner in both the cases, submitted that the courts have not taken into account an important fact that in the instant case there is no consummation of marriage and if there is no consummation of marriage in case of minors marriage having taken place during minority there is repudiation and wife withdrawing herself from the company without consummation it amounted to repudiation of the marriage and therefore, relationship of husband and wife never existed and in this view of the matter she is not entitled to any maintenance. It is further submitted that the orders granting maintenance is abundantly against the provisions of Sub -section (1) of Section 125 Cr.PC and that when he was prepared to keep and maintain her the court could not grant maintenance. It is submitted that Sub -section (1) of Section 125 Cr.PC is complete in itself and reference could not have been made to Sub -section (3) which puts a limitation on Sub -section (1). It was submitted that this court in Bhanwari Bai alias Ranji Bai v. Mohd. Ishaq 1982 RLW 600 has held that contracting second marriage is not a ground for withdrawing from the company of the husband and maintenance cannot be granted on this ground. It is submitted, therefore, that the judgment in this case which had been passed earlier that maintenance is granted for the reason that petitioner has married second wife is diametrically opposite to the view taken and in this view of the matter this case requires a reference to the larger Bench. It has also been submitted that this court has wide powers under Section 482 Cr.PC to set aside the earlier order of this court where the grant of maintenance has been upheld.

(3.) BEFORE I discuss the contentions raised it would be proper to reproduce Section 125 Cr. PC: Section 125. Order for maintenance of wives, children and parents:.