Criminal Appeal No 605 of 1986
From the Judgment and Order dated 2751985 of the Kerala High Court in Crl
Case No 211 of 1985
Mrs Geeta Luthra and D Goburdhan for the Appellants
SC 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 11580 and she begot him a girl child on 9581
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 Rs500 and Rs300 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 181084 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 Rs100 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 181084
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 cannot afford a legal ground for the appellant to live 778 separately and claim maintenance
These rival contentions fall for our determination in this appeal
The justification put forward for the second marriage cannot be taken as a tenable defence even if such a defence is open because there is no evidence to show that the respondent had asked the appellant to rejoin him and she had declined to do so before the respondent took his second wife
Therefore what really needs consideration is whether the second marriage of the respondent confers a right upon the appellant to live separately and claim maintenance and secondly whether her rights stand curtailed in any manner because of the personal law governing the parties permitting a husband to marry more than one wife
The further question to be decided is whether even if the respondent is liable to pay maintenance he stands absolved of his liability after his offer to take back the appellant and maintain her
For adjudicating the rights of the parties we must construe the Explanation and determine its scope and effect
The Explanation reads as follows If a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be just ground for his wife s refusal to live with him
 Before entering upon our discussion we may refer to some of the decisions rendered by the High Courts on the scope and effect of the Explanation
We are setting out only some of the cases and not making an exhaustive reference because the purpose of the reference is only to show the divergent views taken by several High Courts
Furthermore we have grouped the cases on broad classifications and not with reference to the line of reasoning adopted in each case
In the following cases it was held that the second marriage of the husband entitled the wife to an order of maintenance under Section 488 Code of Criminal Procedure 1898 1 Bayanna vs Devamma 1953 Mad
WN Crl
243  AIR 1954 Mad 226
2 Kundaswami vs Nachammal AIR 1963 Mad
263 3 SyedAhmedv
NP TajBegum AIR 1958 Mys 128 779 4 Shambu vs Ghalamma AIR 1966 Mys 311 5 Tela Bai vs Shankarrao AIR 1966 Bom 48 6 Mohammed Haneefa vs Mariam Bi AIR 1969 Mad 414
In the following cases a contrary view was taken holding that the mere fact that a husband has contracted marriage with another wife or keeps a mistress cannot without more be said to amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of sub section 1 of Section 488 7 Bala Rani vs Bhupal Chandra AIR 1956 Cal 134 8 Rupchand vs Charubala AIR 1966 Ca183 9 Ishar vs Soma Devi AIR 1959 Pun 295 10 Dhan Kaur vs Niranjan Singh AIR 1960 Punj 595
A third line of view was taken in Ramji Malviya vs Munni Devi AIR 1959 All 767 where it was held that ordinarily remarriage will be a sufficient ground for refusing to live with the husband but if the remarriage had been occasioned by the wife s unjust refusal to live with her husband she cannot take advantage of her own wrong and claim mainte nance
There are two decisions one of the Kerala High Court rendered by VR Krishna Iyer J as the then was and the other of the Andhra Pradesh High Court rendered by Chinnappa Reddy J as he then was which require mention because they pertain to maintenance actions by Muslim wives whose husband had married again
Krishna lyer J held as follows in Sabulameedu vs Subaida Beevi 1970 Kerala Law Times Page 4
It behoves the Courts in India to enforce Section 4883 of the Code of Criminal Procedure in favour of Indian women Hindu Muslim or other
I will be failing in my duty if I accede to the argument of the petitioner that Muslim women should be denied the advantage of para
2 of the proviso to Section 4883
 Chinnappa Reddy J held in Chand Begum vs Hyderabaig 1972 Crl
Law Journal 1270 as under Therefore a husband who married again cannot expect the court to come to his rescue if he wants the first wife to 780 share the conjugal home with a co wife
If she decides to live separately he is bound to provide a home for her and maintain her
If he does not do that he neglects or refuses to maintain her within the meaning of Section 4881 Cr
Thus the offer of a husband who has taken a second wife to maintain the first wife on condition of her living with him cannot be considered to be a bona fide offer and the husband will be considered to have neglected or refused to maintain the wife
 Lastly we must also refer to the decision of this Court in Mohd A Khan vs Shah Bano Begum 1985 3 scr 844 at 856 wherein the Explanation came to be scanned by the Court while examining the larger question regarding the rights of divorced Muslim wives to claim maintenance under Section 125 of the Code
The relevant observation of the Court is in the following terms The conclusion that the right conferred by Section 125 can be exercised irrespective of the personal law of the parties is forti fied especially in regard to Muslims by the provision contained in the Explanation to the second proviso to Section 1253 of the Code
That proviso says that if the husband offers to maintain his wife on condition that she should live with him and she refuses to live with him the Magistrate may consider any grounds of refusal stated by her and may make an order of maintenance notwithstanding the offer of the husband if he is satisfied that there is a just ground for passing such an order  
The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage leave alone 3 or 4 other marriages
It shows unmistakably that Section 125 overrides the personal law if there is any conflict between the two Having referred to the views taken by some of the High Courts and this Court about the ambit of the Explanation we will now proceed to consider its terms and its operative force
Though we stand benefited by the enlightenment de rived from the decisions referred to above we are of opin ion that the Explanation calls for a more intrinsical exami nation than has been done hitherto
Sub section 1 of Section 125 inter alia provides that if a person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself the Magistrate may upon proof of such neglect or refusal 781 order the person to make a monthly allowance for the mainte nance of his wife
The second proviso to sub section 3 lays down that if a person liable to pay maintenance offers to maintain his wife on condition of her living with him and she refuses to live with him the Magistrate may consid er the grounds of refusal and may make an order for mainte nance notwithstanding the husband s offer if he is satis fied that there is just ground for ordering maintenance
Then comes the Explanation which says that if a husband has contracted marriage with another woman or keeps a mistress it shall be considered to be just ground for the wife s refusal to live with him
In the reported decisions where the Explanation has been construed as entitling a Muslim wife to claim maintenance on the basis of the Explanation the courts have only taken into consideration the first limb of the Explanation viz If a husband has contracted mar riage with another woman Focussing attention on that part of the Explanation the courts have held that the Explana tion is of common application to all wives whose husbands have contracted another marriage irrespective of the fact the personal law governing the parties permits another marriage during the subsistence of the earlier marriage
We would like to point out that the Explanation contemplates two kinds of matrimonial injury to a wife viz by the hus band either marrying again or taking a mistress
The Expla nation places a second wife and a mistress on the some footing and does not make any differentiation between them on the basis of their status under matrimonial law
If we ponder over the matter we can clearly visualise the reason for a second wife and a mistress being treated alike
The purpose of the Explanation is not to affect the rights of a Muslim husband to take more than one wife or to denigrate in any manner the legal and Social Status of a second wife
to which she is entitled to as a legally married wife as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking a mistress during the subsistence of the marriage with her
From the point of view of the neglected wife for whose benefit the Explanation has been provided it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted under law to be married and not a mistress
The legal status of the woman to whom a husband has transferred his affections cannot lessen her distress or her feelings of neglect
In fact from one point of view the taking of another wife portends a more permanent destruction of her matrimonial life than the taking of a mistress by the husband
Be that as it may can it be said that a second wife would be more tolerant and symapthetic than a mistress so as to persuade the wife to rejoin her husband and lead life 782 with him and his second wife in one and the same house It will undoubtedly lead to a strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife
The Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband s right to marry again
The Explanation has therefore to be seen in its full perspective and not dis junctively
Otherwise it will lead to discriminatory treat ment between wives whose husbands have lawfully married again and wives whose husbands have taken mistresses
Ap proaching the matter from this angle we need not resort to a comparison of Muslim wives with Hindu wives or Christian wives but can restrict the comparison to Muslim wives them selves who stand affected under one or the other of the two contingencies envisaged in the Explanation and notice the discrimination
It is this aspect of the matter which we feel has not been noticed hitherto
Even if the Explanation is viewed in the larger context of the provisions of Section 125 the conclusion reached above is inescapable
Section 125 its fore runner being Section 488 has been enacted with the avowed object of preventing vagrancy and destitution
The Section is intended to ensure the means of subsistence for three categories of dependents viz children wives and parents who are unable to maintain themselves
The three essential requisites to be satisfied before an order of maintenance can be passed are that 1 the person liable to provide maintenance has suffi cient means 2 that he has neglected or refused to main tain and 3 the dependentdependents isare unable to maintain himselfherselfthemselves as the case may be
The Legislature being anxious that for the sake of maintenance the dependents should not resort to begging stealing or cheating etc
the liability to provide maintenance for children has been fixed on the basis of the paternity of the father and the minority of the child and in the case of major children on the basis of their physical handicap or mental abnormality without reference to factors of legitima cy or illegitimacy of the children and their being married or not
In the case of wives whether their ties of marriage subsist or not the anxiety of the Legislature is that they should not only not resort to begging stealing or cheating etc
but they should also not feel compelled for the sake of maintaining themselves to resort to an adulterous life or in the case of divorced women to resort to remarriage if they have sentimental attachment to their earlier mar riage and feel morally bound to observe their vows of fidel ity to the persons whom they had married
This position emerges when we take an overall view of sub sections 1 4 and 5
783 While sub section 4 provides that a wife shall not be entitled to receive maintenance from her husband if she is living in adultery or if without sufficient reason she refuses to live with her husband or if She lives separately by mutal consent sub section 5 provides that an order of maintenance already passed can be cancelled for any of the abovesaid reasons
Thus by reason of sub sections 4 and 5 a husband can avoid his liability to pay maintenance if his wife is living in adultery
Correspondingly a right has been conferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a mistress
As already stated it matters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress
Therefore the respond ent s contention that his taking another wife will not entitle the appellant to claim separate residence and main tenance cannot be sustained
The Explanation is of uniform application to all wives including Muslim wives whose hus bands were either married another wife or taken a mistress
It only now remains for us to consider the further defence of the respondent that in view of his offer to take back the appellant and maintain her he stand absolved of his liability to pay maintenance
The offer to take back the appellant had been made only before the Revisional Court and that too after the second marriage had taken place
The offer was not to the effect that he would set up a separate residence for the appellant so as to enable her to live in peace and with dignity
As has been pointed out in Chand Begum vs Hyderbaig supra a husband who marries again cannot compel the first wife to share the conjugal home with the co wife and as such unless he offers to set up a sepa rate residence for the first wife any offer to take her back cannot be considered to be a bona fide offer
It is therefore obvious that the offer was only a make believe one and not a genuine and sincere offer
On the basis of such an insincere offer the appellant s rights cannot be negated or defeated
It is highly unfortunate that the Sessions Judge and the High Court should have declined to grant maintenance to the appellant in spite of the appel lant s case falling squarely under the Explanation
As the record contains evidence regarding the earnings of the respondent we are in a position to determine the quantum of maintenance for the appellant in this appeal itself instead of remitting the matter to the Trial Court or the Revisional Court
The respondent has stated in his counter affidavit in the special leave petition that his income is only Rs1000 per month
The appellant has stated in her 784 petition for maintenance that the respondent was getting Rs 1500 per month by way of salary and Rs500 per month by way of income from properties
In the four years that have gone by since the maintenance action was instituted the respond ent s income must have certainly increased
Therefore taking all factors into consideration we fix the quantum of maintenance for the appellant at Rs300 per month
This amount will be paid with effect from 181084 when the respondent married a second wife
The arrears of maintenance will be paid by the respondent in five equal instalments the first of such instalments to be paid during the first week of June 1987
The subsequent instalments will be paid at intervals of three months thereafter ie during the first week of September 1987 first week of December 1987 first week of March 1988 and first week of June 1988
Future maintenance must be paid before the cloth of every succeed ing month
We also enhance the maintenance to the minor girl second appellant to Rs200 per month from Rs 100 per month with effect from 111987
Default in payment of future maintenance or any instalments of the arrears will entitle the appellant to levy execution against the respond ent under Section 1253 of the Code and realise the amount
The appeal will stand allowed accordingly
NPV Appeal al lowed


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 Rs500 and Rs300 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 Rs100 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 appellant from agitating her claim
In the appeal to this Court by special leave the appellant con 774 tended that the second marriage of the respondent had added a new dimension to her maintenance action and that she had become entitled under law to live separately and claim maintenance
The appeal was contested by the respondent on the ground that he was driven to the necessity of marrying again because the appellant failed to rejoin him and he had offered to take her back to maintain her and the said offer exonerated him from his liability to pay maintenance
It was further contended that as he was permitted by Muslim Law to take more than one wife his second marriage cannot afford a legal ground for the appellant to five separately and claim maintenance
On the questions whether the second marriage of the respondent confers a right upon the appellant to live sepa rately and claim maintenance and whether the appellant s rights stand curtailed in any manner because of the personal law governing the parties permitting a husband to marry more than one wife and whether even if the respondent is liable to pay maintenance he stands absolved of his liability after his offer to take back the appellant and maintain her
Allowing the Appeal HELD 11 Section 125 of the Criminal Procedure Code 1973 its fore runner being section 488 of the Criminal Procedure Cede 1898 has been enacted with the avowed object of preventing vagrancy and destitution
It is intended to ensure the means of subsistence for three categories of dependents viz children
wives and parents who are unable to maintain themselves
782D E 12
Before an order of maintenance can be passed the three essential requisites to be satisfied are that 1 the person liable to provide maintenance has sufficient means 2 that he has neglected or refused to maintain and 3 the dependentdependents isare unable to maintain himselfherselfthemselves as the case may be
782E F 13 The Legislature being anxious that for the sake of maintenance the dependants should not resort to begging stealing or cheating etc
 the liability to provide mainte nance for children has been fixed on the basis of the pater nity of the father and the minority of the child and in the case of major children on the basis of their physical handi cap or mental abnormality without reference to factors of legitimacy or illegitimacy of the children and their being married or not
782F G 14 In the case of wives whether their ties of marriage subsist or 775 not the anxiety of the Legislature is that they should not only not resort to begging stealing or cheating etc
but they should also not feel compelled for the sake of main taining themselves to resort to an adulterous life or in the case of divorced women to resort to remarriage if they have sentimental attachment to their earlier marriage and feel morally bound to observe their vows of fidelity to the persons whom they had married
782G H 21 By reason of sub sections 4 and 5 a husband can avoid his liability to pay maintenance if his wife is living in adultery
Correspondingly a right has been conferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidel ity and marries another woman or takes a mistress
It mat ters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress
783B C 22 The Explanation is of uniform application to all wives including Muslim wives whose husbands have either married another wife or taken a mistress
783C D 23 The purpose of the Explanation is not to affect the rights of a Muslim husband to take more than one wife or to denigrate in any manner the legal and social status of a second wife to which she is entitled to as a legally married wife as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking a mistress during the subsistence of the marriage with her
781E F 24 This Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband s right to marry again
782B 3
The offer to take back the wife and maintain her does not absolve the husband of his liability to pay maintenance
A husband who marries again cannot compel the first wife to the conjugal home with the co wife and as such unless he offers to set up a separate residence for the first wife any offer to take her back cannot be considered to be a bona fide offer
783D F Chand Begum vs Hyderbaig 1972 Crl
Law Journal 1270 referred to
In the instant case the offer to take back the appellant had been 776 made only before Revisional Court and that too after the second marriage had taken place
The offer was not to the effect that he would set up a separate residence for the appellant so as to enable her to live in peace and with dignity
The offer was only a make believe one and not a genuine and sincere offer
On the basis of such an insincere offer the appellant s rights cannot be negated or defeated
783D F The Court granted maintenance to the appellant wife Rs300 per month and enhanced the maintenance to the minor girl to Rs200 per month
784B C Bayanna vs Devamma 1953 Mad
WN Crl
243  AIR 1954 Mad 226 Kundaswami vs Nachammal AIR 1963 Mad 263 Syed Ahmed vs
NP Taj Begum AIR 1958 Mys 128 Shambu vs Ghalamma AIR 1966 Mys 311 Teja Bai vs Shankarrao AIR 1966 Bom 48 Mohammed Haneefa vs Mariam Bi AIR 1969 Mad 414 Bela Rani vs Bhupal Chandra AIR 1956 Cal 134 Rupchand vs Charubala AIR 1966 Cal 83 Ishar vs Soma Devi AIR 1959 Punj 295 Dhan Kaur vs Niranjan Singh AIR 1960 Punj 595 Ramji Malviya vs Munni Devi AIR 1959 All
767 Sahulmmeedu vs Subaida Beevi 1970 Kerala Law Times Page 4 and Mohd A Khan vs Shah Bano Begum  at 856 re ferred to