Case nº 605 of Appeal, April 03, 1987 (case Begum Subanu Alias Saira Banu & Anr. VS. A.M. Abdul Gafoor) - VLEX 29682825

Case nº 605 of Appeal, April 03, 1987 (case Begum Subanu Alias Saira Banu & Anr. VS. A.M. Abdul Gafoor)

SUMMARY

The appellant was married to the respondent on May 11, 1980. A girl was born on May 9, 1981. On grounds of neglect and failure to provide maintenance, the appellant filed a petition under Section 125 of the Code of Criminal Proce- dure, 1973, seeking maintenance for herself and the child at Rs.500 and Rs.300 per month respectively. The Magistrate dismissed the petition on the ground that the appellant had failed to establish adequate justification for living sepa- rately. The appellant preferred a Revision Petition to the Sessions Judge. During the pendency of the said petition the respondent married again on October 18, 1984. It was urged on behalf of the appellant in the revision petition that irrespective of the other grounds, the second marriage of the respondent was by itself a ground for grant of mainte- nance. The Sessions Judge, however, held that the appellant was not entitled to claim maintenance since the respondent had contracted the second marriage after giving the appel- lant sufficient time and opportunity to rejoin him and since he had offered to take her back even after the second mar- riage. Insofar as the child was concerned the Sessions Judge granted maintenance at Rs.100 per month. The appellant preferred a Petition to the High Court under Section 482 for grant of maintenance to her and for enhancing the maintenance awarded to the child and the High Court declined to interfere on the ground that the concur- rent findings of the Court below precluded the... (see full summary)

FREE EXCERPT

PETITIONER: BEGUM SUBANU ALIAS SAIRA BANU & ANR.

Vs.

RESPONDENT: A.M. ABDUL GAFOOR

DATE OF JUDGMENT03/04/1987

BENCH: NATRAJAN, S. (J)

BENCH: NATRAJAN, S. (J)

SEN, A.P. (J)

CITATION: 1987 AIR 1103 1987 SCR (2) 773 1987 SCC (2) 285 JT 1987 (2) 55 1987 SCALE (1)672

ACT: Code of Criminal Procedure, 1973--Section 125 and Expla- nation to second proviso of sub-section (3)--Maintenance--Right of a Muslim wife to live separately and claim maintenance against the husband who marries anoth- er wife or takes a mistress--Liability to pay maintenance- Husband not absolved by offer to take back wife and maintain her--Right of Muslim husband to take more than one wife not affected--Scope and effect of.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 605 of 1986.

From the Judgment and Order dated 27.5.1985 of the Kerala High Court in Crl. Misc. Case No. 211 of 1985.

Mrs. Geeta Luthra and D. Goburdhan for the Appellants.

S.C. Birla for the Respondent.

The Judgment of the Court was delivered by

NATARAJAN, J. Is a Muslim wife whose husband has married again worse off under law than a Muslim wife whose husband has taken a mistress to claim maintenance from her husband?

Can there be a discrimination between Muslim women falling in the two categories in their right to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973 (for 'short the "Code")? These fundamental questions of a startling nature run as undercurrents beneath the placid waters of this seemingly commonplace action for maintenance by a 777

Muslim wife against her husband. We have projected these fundemental issues in the prefatory itself because these larger questions also arise for consideration in this ap- peal.

Now for a resume of the facts. The appellant was married to the respondent on 11.5.80 and she begot him a girl child on 9.5.81. On grounds of neglect and failure to provide maintenance she filed a petition under Section 125 of the Code in the Court of the Judicial First Class Magistrate, Kasargod to seek maintenance for herself and the child at Rs.500 and Rs.300 per month respectively. The Magistrate dismissed the petition saying the appellant had failed to establish adequate justification for living separately. A revision was preferred to the Sessions Judge of Tellicherry.

During the pendency of the revision the respondent married one Sahida Begum on 18.10.84, as his second wife. It was, therefore, urged in the revision that irrespective of the other grounds the second marriage of the respondent was by itself a ground for grant of maintenance. The Sessions Judge skirted the issue by taking a devious view that since the respondent had contracted the second marriage after giving the appellant sufficient time and opportunity to rejoin him and since he had offered to take her back even after the second marriage, the appellant was not entitled to claim maintenance. However, in so far as the child is concerned the Sessions Judge granted maintenance to it at Rs.100 per month. The appellant then preferred a petition to the High Court under Section 482 of the Code for grant of maintenance to her and for enhancing the maintenance awarded to the child. The High Court declined to interfere saying that the concurrent findings of the courts below precluded the appel- lant from agitating her claim any further. The aggrieved appellant has approached this Court of last resort under Article 136 of the Constitution for redressal of her griev- ance.

The principal controversy in the appeal centres round the rights of liabilities of the parties in the context of the second marriage entered into by the respondent on 18.10.84. The appellant's case is that the second marriage has added a new dimension to her maintenance action and she has become entitled under law to live separately and claim maintenance. The counter argument of the respondent is that he was driven to the necessity of marrying again because the appellant failed to rejoin him but even so he had offered to take her back and maintain her and the said offer exonerated him from his liability to pay maintenance. The main defence, however, urged is that since he is permitted by Muslim Law to take more than one wife his second marriage...

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