BOMBAY HIGH COURT
Bench: JUSTICE Sharad Manohar
MOHAMMED SHARIF
Vs.
RAISA BEGUM AND ANOTHER On 26 July 1985
JUDGEMENT
A question of quite some importance is raised by Mr. Kadar in this petition which arises out of the proceedings under Section 125 of the Code of Criminal Procedure instituted by respondent No. 1 against husband-the present petitioner.
2. The present petitioner is the husband and respondent No. 1 is the wife and she will be hereinafter referred to as respondent No. 1. The marriage of the petitioner with respondent No. 1 took place on 3-4-1978. There is no dispute that they lived a happy married life till the birth of the child. The case of the respondent No. 1 is that there was some function by way of felicitation of the birth of the son celebrated by both the petitioner and the respondent No. 1 at the petitioner’s place and her allegation is that on that occasion the petitioner demanded a golden ring for the child from the parents of the respondent No. 1 but when the respondent was unable to get that costly article from her parents on account of their penury, the petitioner-husband took his wife and child to her parents’ place in Village Naigaon and left her there. According to respondent No. 1, the husband returned back and refused to take her back to the matrimonial home inspite of the efforts on the part of respondent No. l’s parents to persuade the petitioner to take her back.
3. The respondent No. 1’s further grievance was that the present petitioner entered into a second marriage with one Saira Begum on 29-7-1982 and that it is Saira Begum who has been residing with the present petitioner in his house since then. The contention of the respondent No. 1-wife was that she is a pardanashin lady and is unable to maintain herself whereas the petitioner-husband is having annual agricultural income to the extent of Rs. 30000/-. Hence she claimed maintenance from petitioner-husband at the rate of Rs. 300/-for herself and Rs. 150/-for the child present respondent No. 2.
4. The present-petitioner filed his written statement and denied the allegations of the ill-treatment or desertion. He stoutly denied entire incident relating to the demand of the golden ring. His contention was that respondent No. 1 herself left matrimonial home without any legitimate cause whatsoever alongwith the child, even without the consent or permission of the petitioner. He stoutly denied the allegations relating to the efforts of the respondent No. l’s father to prevail upon the petitioner-husband for taking back respondent No. 1 to the matrimonial home. On the other hand, he contended that it is he, the petitioner who made several efforts to bring the respondent back to the matrimonial home from her parental place. According to him, not only he but even one Abdul Gani had accompanied him to the parental home of the respondent but she refused to come back to the matrimonial home. He contended that in these circumstances, he gave a notice to the respondent on 26-5-1982 calling upon her to come back to the matrimonial home immediately. The notice came back unserved. Hence on 3-7-1982, he sent another notice to the respondent No. 1 with identical contents. That notice was received by the respondent. But neither there was any reply to the same nor did the respondent No. 1 choose to return back to the matrimonial home. According to the respondent, it was in these circumstances that he contracted the second marriage with Saira Begum on 29-7-1982. The application for maintenance filed by respondent wife on 16-8-1982 was, therefore, resisted by the petitioner-husband with the contention that he was required to enter into the contract of second marriage just because of the obstinacy and refractory conduct of the respondent No. 1. He also denied allegations relating to his financial affluence. But it is unnecessary to refer to the said averments in this judgment.
5. The trial Court examined the evidence led by the wife as well as the husband and found that the allegations of the respondent No. 1 wife relating to her ill-treatment and desertion were not born out by the evidence at all. On the other hand, he found that the evidence led by the husband was straight and readily reliable. He specifically referred to the notice (Exh. 18) sent by the husband to the respondent No. 1 wife and according to the learned Magistrate, the Notice read with evidence of independent witnesses examined by the husband clearly showed that it was the wife herself who had left the matrimonial home without any reasonable cause and had stubbornly closen to live away from him inspite of his efforts to bring her back. The learned Magistrate, however, did not refer to the legal effect of the fact that the petitioner-husband had contracted second marriage in the context of the explanation to Clause (3) of the Section 125 of the Code of Criminal Procedure. The learned Magistrate no doubt considered the position of the respective rights of the husband and wife as per the provisions of Mohemmedan Law. He has also referred to the factum of the second marriage by the petitioner-husband ; but he does not seem to have applied his mind to the effect of explanation to Sub-section (3) of Section 125 of the Code of Criminal Procedure which is the main question arising for consideration in the present petition.
6. Taking the view that it was the wife who was in the wrong and that the husband’s conduct was not blames worthy at any time, the learned Magistrate dismissed the wife’s application for maintenance, but with no order as to costs.
7. In the revision application filed by the wife, the learned Additional Sessions Judge has not found it possible to find fault with the findings of the learned Magistrate relating to the initial adamance and obstinacy of the wife herself. In fact, in para 8 of his judgment, he stated that the findings have not been seriously challenged before him by the wife at all. Moreover, he has specifically observed that the evidence in that behalf has been rightly appreciated by the learned Magistrate. In other words, those findings have been confirmed by the learned Additional Sessions Judge. But the learned Judge rightly addressed himself to the legal position arising out of the explanation to Section 125(3) of the Code of Criminal Procedure. With reference to the said provisions, he referred to certain authorities and came to the conclusion that if the husband has married a second wife, the first wife was entitled to live separately from him as a matter of right and still claim maintenance. In this connection, he relied upon the judgment of this Court in Teja Bai v. Shankarrao, AIR 1966 Bom. 48. He also referred to the judgment of the Supreme Court in AIR 1977 SC 1488 and the judgment of the Gujarat High Court in Banabibi Sikander Khan v. Sikander Khan Umarkhan, 1984 MLR 106. Relying upon these authorities, the learned Judge came to the conclusion that once the petitioner-husband has contracted the second marriage a right came into existence in favour of the first wife to live separate from him and to claim maintenance from him all the same.
8. The learned Judge thereafter examined the evidence relating to the financial capacity of the husband and awarded maintenance to respondent No. 1 wife at the rate of Rs. 150/- per month and to the child at the rate of Rs. 50/- per month. He also awarded costs to the respondent No. 1 wife which is quantified at Rs. 75/-.
9. When this petition reached hearing, Mr. Kadar, the learned advocate appearing for the petitioner-husband, made it clear that he was not questioning the right of the child respondent No. 2, as regards the maintenance. He has restricted his petition only to the question of legality of the order in favour of the wife on two grounds. His first contention was that respondent No. 1 has not either alleged or proved by evidence her inability to maintain herself, which fact disentitles her to succeed in the petition under Section 125 of the Criminal Procedure Code. Secondly, he contended that the second marriage contracted by the husband-petitioner was the result of the obstinacy and stubbornness of the respondent No. 1- wife, in that she herself chose to live away from her husband for no justification. According to Mr. Kadar, the wife cannot be allowed to take advantage of her own wrong by making it necessary to her husband to marry a second wife and then claiming separate maintenance from him on the ground that he had married the second wife.
10. But unfortunately, on that day, or on any day thereafter no one appeared on behalf of the wife although two advocates had filed Vakalatnama on her behalf. I, therefore, adjourned the hearing of the petition for sometime. It reached hearing on 13th June, 1985 but even on this date, neither of the learned advocates appeared on behalf of the respondent No. 1 wife. Hence I passed a speaking order on that date. In the order, I mentioned two points which were urged by the learned advocate appearing on behalf of the petitioner-husband before me. I also mentioned in the said order that two learned advocates has filed Vakalatnama on behalf of respondent No. 1 but that neither had found it possible to pay their professional attention to this petition even though the hearing of the petition was adjourned on earlier occasion on account of their absence. By the said order therefore, t appointed Mr. S.G. Mantri, who appeared as amicus curiae in the revision application and to assist the Court on behalf of respondent No. 1-wife. The hearing of the petition was adjourned to 28th June, 1985 in order to enable the amicus curiae to study his brief.
11. Neither of the learned advocates chose to appear on behalf of the respondent No. 1 even on the date when the petition reached for the final hearing. The petition was argued by Mr. Kadar for the petitioner husband and by Mr. Mantri for respondent No. 1-wife. As regards the first point relating to the wife’s inability to maintain herself, Mr. Mantri pointed out that the petitioner’s contention relating to want of plea in the wife’s application relating to her inability to maintain herself is not correct. He pointed out that the respondent No. 1 has specifically mentioned in her application that being a Pardanashin lady, she was unable to maintain herself. He also pointed out that the petitioner has not at all led any evidence to show that the respondent No. 1 wife was unable to maintain herself. In these circumstances, Mr. Kadar, learned advocate for the petitioner-husband fairly conceded that it was not possible for him to press on with the said point.
12. But Mr. Kadar was on such stronger ground so far as second point is concerned. In this connection, he invited my attention not only to the concurrent findings of the facts recorded by both the Courts below but he invited my attention poignantly to the Notice (Exh. 18) sent by husband to his wife. The notice has great significance to the legal question involved in this petition and hence, it is worthwhile referring to the same somewhat elaborately.
13. The notice is dated 26-5-1982 and it mentions that it is sent again on 3-7-1982. In the notice it is stated that the addressee wife had been living with her husband quite happily from the date of marriage till the date about 4/5 months before the date of the notice, and that she had also got a son from the petitioner-husband. It is further stated that she had left the house of the petitioner-husband about four months before the date of the notice without any reasonable cause and without the consent or permission of her husband or of his family members. It was mentioned that not only the petitioner-husband but even his relatives and friends went to her and requested her to come back to the matrimonial home for leading happy matrimonial life and it was also mentioned that all those requests have been turned down by her. It was stated that, on the other hand, on one occasion her father and brother went to the extent of beating the petitioner-husband. He also stated that she had taken away her ornaments with her. The particulars of the ornaments taken by her were mentioned in the notice. In para 4 of the notice, it was stated that she should come back to the matrimonial home with her son and that she should also bring the ornaments taken away by her to lead happy matrimonial life with her husband. She was given 8 days time to return back to the matrimonial home. The notice mentions that the previous notice had come back unserved on the ground that respondent No. 1 wife had been out of the station.
14. What is significant is that there was no reply whatsoever to this notice.
15. The contention of the petitioner-husband is that he is entitled to lead happy matrimonial life with his wife. If she refuses to respond to this desire, he contends, she drives him to take recourse to marry a second wife. Under the Muslim Law by which he is governed, he is perfectly within his right to do so. This course has been enjoined upon him by the sheer adamance, stubbornness and refractory attitude of the wife. It is she who has driven him to marry a second wife. The contention is that, in these circumstances, the wife is not entitled to claim separate maintenance from the petitioner-husband. In support of this contention, Mr. Kadar relied upon quite a few authorities.
16. The first authority relied upon by him was the judgment of the Allahabad High Court In Ramji Malviya v. Smt. Munni Devi Malviya, AIR 1959 All. 767. In that case, the wife had been living away from her husband without any justification for a period of nearly four to five years with the result that the husband was constrained to enter into a second marriage. It appears that the second marriage was not void at that time even though the parties were Hindus. In these circumstances, the Allahabad High Court held that there was no ‘neglect’ on the part of the husband to maintain his wife during the period until he had married the second wife. The High Court held that the position did not change in any way after his second marriage. The wife’s refusal to respond to the husband’s desire to lead a happy matrimonial life disentitles her claiming maintenance from her husband, and if she continued with her obstinacy and indifference, intervention of the second marriage did not change the position. If the conduct of the husband of not paying maintenance to the wife because it was the wife who was at fault in living away was a justified conduct. Till the date of his second marriage, the factum of his second marriage does not change the nature of the conduct. This is what the Allahabad High Court has held in this connection in para 6 of its judgment which runs as follows :—
“The wife deserted the husband first and after the desertion had continued for 4-5 years, the husband remarried. At the time of the desertion the wife had no sufficient reason for refusing to live with the husband and consequently she was not entitled to receive any maintenance from him. The desertion continued in spite of the husband’s remarriage and, therefore, the disqualification of the wife to receive maintenance also continued in spite of the remarriage. If the husband was not liable to pay maintenance under Sub-section (1) in 1950-51, he did not become liable later in 1955 merely because of his remarriage.
There was no change in the neglect or refusal to maintain the wife by his remarriage ; if the neglect or refusal prior to the re-marriage was not such as to saddle him with the liability to pay her maintenance, it did not become such merely on account of the remarriage. The marriage was a natural consequence of the desertion by the wife herself ; the husband needed company and some one to look after the minor daughter and the home. He was obliged to remarry because the wife refused to live with him. Ordinarily remarriage is a sufficient ground for refusing to live, with the husband, but not if it is the natural and direct consequence of her prior refusal, without any sufficient reason, to live with him. She cannot take advantage of her own wrong ; she cannot equip herself with a sufficient reason by refusing to live with the husband without any sufficient reason and thereby compelling him to remarry.”
In support of this view, Allahabad High Court has relied upon the judgment of the Madras High Court and of the Nagpur High Court.
17. The judgment of the Madras High Court is reported in Kurma Pullamma v. Kurma Thatalingam, AIR 1945 Mad. 44. That was also a case where the parties were Hindus but the case being of period prior to 1955, there was no prohibition against husband from marrying second wife. It was held in that case as follows :—
“So long as the husband is not guilty of any cruelty or neglect the wife is bound to go and live with her husband. The mere fact that the husband has taken a second wife and that too after waiting for some time and after the first wife refused to join him, cannot amount to cruelty and hence the wife is not entitled to separate maintenance.”
Similar question had arisen before the Nagpur High Court :
The case is State v. Mt. Anwarbi and Others, AIR 1953 Nag. 133, and the position is discussed in para 5 of the said judgment. In that case also parties were Mohommedans and the provisions contained in the explanation to Sub-section (3) to Section 125 of the present Code obtained in the Code of Criminal Procedure prevailing at that time as well. The present explanation to Sub-section (3) to Section 125 of the Code of Criminal Procedure provides that if a husband has contracted marriage with another woman or keeps mistress, it shall be considered to be just ground for his wife’s refusal to live with him. But these same position obtained in the earlier Code from the year 1949 brought about by Section 2 of the Code of Criminal Procedure (Amendment) Act, 1949. The provision under the old Code is identical as the provision contained in the explanation in the new Code. The Nagpur High Court was, therefore, required to consider the identical legal position in the context of more or less identical facts. This is what the Nagpur High Court observed in para 5 of its judgment.
“It seems to me also that the Courts below rightly held that Anwarbi herself was not entitled to maintenance. She had, it appears, voluntarily left Rahamatsab’s house although she had not been subjected to maltreatment. She was not prepared to return to him although he was prepared to maintain her.”
But it has got to be noted that in that case, the Nagpur High Court also held that after the advent of the Criminal Law Procedure (Amendment; Act, 1949 even a Muslim wife became entitled to live separately from her husband and still claim maintenance. Her application for maintenance was no doubt dismissed by the Court but that was not on the ground that she was not entitled to live separately. It was dismissed on the ground that she had not proved neglect on the part of husband to maintain her. To this extent, to my mind, this authority may be said to be somewhat at variance with the judgments of the Allahabad High Court and the Madras High Court referred to above.
18. But Mr. Kadar rightly invited my attention to the judgment of the Rajasthan High Court reported in Bhanwari Bai v. Mohd Ishaq, (1983) 1 Cr.LC 168. It was held in that case that if the wife refused to cohabit with her husband without any just and reasonable cause, and if on that account if the husband is driven to marry second wife, the first wife cannot claim maintenance from husband because if she is allowed to do so, it will mean that she will be allowed to take advantage of her own wrong.
19. My attention was invited by Mr. Kadar also to the judgment of the Madras High Court reported in Kandaswami v. Nachammal, AIR 1963 Mad. 263, but reliance on this authority is placed also by Mr. Mantri in support of his contention that a wife is entitled to live separately from her husband and still claim maintenance from him if he has contracted a second marriage. But I will deal with this argument a little later. The point to be noted at this stage, with reference to the judgment in Gangayya and Ors. v. S. Mandan Chander Samdaria and Ors., AIR 1973 Mad. 262, is that the above mentioned judgment of the Allahabad High Court in Ramji Malviya v. Muni Devi, (supra), has been referred to by the Madras High Court with evident approval. It appears to have been distinguished ; not dissented from. In said Kandaswami’s case, the facts were not that the first wife drove the husband to marry a second wife. It appears that she was driven to live separately only after her husband married a second wife. In these circumstances the authority states that the second marriage of the husband gives right to the first wife to live separately. In other words, her husband’s second marriage gives justification to the 1st wife for separate residence. But if she has been already staying separate from her husband without any justification, the absence of justification is not converted into the present of it. At least the Madras authority in the above mentioned Kandaswam’s case, does not hold that it does.
20. This to my mind, is the basic difference between the ratios of the various authorities relied upon by Mr. Khadar (mentioned above Ramji Malviya v. Munni Devi, Kurma Pullamma v. Kurma Thatalingam, Bhanwari Bai v. Mohd. Ishaq, (supra), on the one hand and the above mentioned Kandaswami’s case, relied upon by Mr. Mantri (though cited also by Mr. Kadar) and the three authorities relied upon by the Sessions Court on the other. The latter group of four authorities reveal a similar pattern of facts which is basically distinguishable from the set of facts detaining in the cases relied upon by Mr. Kadar. I may mention that Mr. Mantry did not rely upon the authorities relied upon by the Sessions Court and he may be right in doing so because the question posed before him is really speaking not dealt with by the said authorities.
21. However, to my mind, it would be better if I discuss the ratio laid down by the said authorities, particularly because one of the authorities is the judgment of Division Bench of our own High Court and second authority is the judgment of the Supreme Court.
22. The first authority relied upon by the Sessions Court is the judgment of a Division Bench of this Court reported in Tejabai v. Shankarrao, AIR 1966 Bom. 48. It was held in that case that a wife living separate from her husband is entitled to claim maintenance under Section 488 on the ground that the husband has contracted marriage with another wife. It was also held in that case that the desertion by the wife at some anterior date is not made a ground under Section 488 in the earlier Code for disallowing maintenance. Relying upon these observations, the Sessions Court has held that the fact that the wife and previously refused to go back to her husband does not disentitle her from claiming maintenance under present Section 125 of the Code.
23. The distinguishing feature of the Tejabai’s case, AIR 1966 Bom. 48, is that first wife had not driven her husband to marry second wife as is evidenced by the notice given by the husband in the present case. The notice and the evidence given by the husband makes it perfectly clear that had not the first wife refused to come back to the matrimonial home, the petitioner-husband would not have been required to marry the second wife. The led happy married life for a period of three years. They got a child from the marriage and still at some date wife took into her head her child to live away from her husband and made him groved in the dust for her and subjected him to all the humiliation and discomfort. Under the personal law by which the parties are governed, the husband was perfectly within his right to marry a second wife. It was the first wife who drove him and compelled him to contract the second marriage and now she is taking advantage of her own wrong by I claiming maintenance from her husband on the ground that he has married second wife. This set of facts was not present before the Division Bench in Tejabai’s case, AIR 1966 Bom. 48.
24. In Tejabai’s case, AIR 1966 Bom. 48, it was also held that in every case when a husband validly marries a second wife, not only the first wife but even the second wife is entitled to live separately from her husband and still claim maintenance from him just because her husband has had two spouses. But that part of the law laid down by that authority has no bearing upon the present case although I must state that I am inclined to have my own reservations about this view.
25. The next authority which is the judgment of the Supreme Court reported in Deochand v. State of Maharashtra and Another, AIR 1974 SC 1488, involves facts which are similar to the facts in the Madras case. In that case the wife wanted to live away from the husband because he had married a second wife. Chandrachud, J., as he then was, held that she had every right to live separately from her husband. No question was required to be considered by the Supreme Court whether it was the first wife who had driven the husband to marry the second wife. From the judgment it is not clear as to whether the second marriage had taken place before 1955. In any event, the provisions in regard to the separate residence and maintenance of a Hindu wife would apply. Moreover, Section 488 of the old Cr.PC itself left no room for doubt after its amendment in the year 1949, referred to above, that second marriage of the husband was a sufficient ground for the wife to live separately and still claim maintenance from him. With great respect, in the set of facts with which the Supreme Court was dealing, there was really no scope for the contention that the wife was not entitled to live separately and claim maintenance from her husband. The contention advanced was that the husband had not neglected to maintain his wife. But the husband had not stated that he was prepared to maintain his wife even if resided separate from him. All that I am driving at is that the principle of justice involved in the present case was not required to be dealt with by the Supreme Court in Deochand’s case.
26. The third authority relied upon by the Sessions Court is the judgment of a learned Single judge of the Gujarat High Court reported in Banabibi Sikandar Khan v. Sikandar Khan Umarkhan and Another, (supra). The facts of this case were similar to those obtaining in the Deochand’s case, decided by the Supreme Court. A Muslim husband having one wife married a second wife. The second wife refused to live with her husband along with first wife and claimed maintenance for her under Section 125 of the Criminal Procedure Code. The contention of the husband was that under the Muslim Law he was entitled to marry as many as four wives simultaneously. It seems to have been argued further on behalf of the husband that the Personal Law of the Muslim had the over-riding effect over Section 125 of the Cr. Procedure Code inasmuch as a Muslim can marry as many as four wives simultaneously and hence it must be presumed that he would be entitled to keep all of them together and have matrimonial life with all of them together and that none of the wives would be entitled to live separate from him and still claim maintenance. It was in answer to this plea that the Gujarat High Court held that no self respecting woman would like that her husband should contract a second marriage. The Court held that if second, third or even fourth marriage is permissible under the Mohmedan Law, a Mohmedan male may indulge in that luxury, that at the most he may not be liable for offence of bigamy. But the Court held that if such a behaviour proves to be an irritant to his wife and the same becomes source of mental agony to her, he cannot take shelter under his Personal Law and say that he is not liable to pay maintenance to his wife. It was held by the learned Judge that :
“In a given case, Mohmedan wife would surely be entitled to live separate and claim maintenance solely on the ground that the very idea of contracting second marriage by her husband is abhorrent of her mind and, therefore, the second marriage to her husband causes mental agony and cruelty to her.”
It was held by the learned Judge further that :—
“Moreover, Explanation to Section 125(3) gives an indication of the intention of the legislature.”
With great respect, I am in fullest agreement with the learned Judge. It would be quite legitimate a contention on the part of his wife that the idea of her husband marrying a second wife without any legitimate reason recognised by the civilised society is an irritant to her and causes mental agony and cruelty to her and if such mental cruelty results from some acts done by the husband such as the second marriage, which irritant is more or less of a permanent character, she is entitled to live away from her husband even as per the contemplation of Sub-section (1) of Section 125. But here again, in the ultimate analysis, we are upon the question of cruelty by the husband to the wife. If the position is in the reverse ; if it is proved that it is the wife who has been cruel in the first instance and has driven her husband to marry a second wife, if the boot is on the other foot, as one may so say, would it lie in her mouth to contend that her initial cruelty must be deemed to disappear the moment the husband marries a second legitimate wife. The Gujarat High Court authority does not deal with this aspect of the matrimonial question.
27. The last authority which I must examine is the latest judgment of the Supreme Court in the case of Mohammed Ahmed Khan v. Shah Barto Begum and Others, AIR 1985 SC 945. Mr. Mantri wanted to rely upon the same for anology but could not because the same was not reported in any well-known law reports at the time of arguments but was briefly reported in the newspapers. The facts of the case were of little different types. In that case the wife was entitled to live separately from her husband because she was a divorced wife. There was no question of her being not entitled to claim maintenance from her husband because she was living separate from him without legitimate reason. She had to live separate because she was no more the wife of her husband in view of the divorce. The question before the Supreme Court was as to whether the divorced wife was entitled to claim maintenance from her husband having regard to the provisions of Clause (b) of the Explanation to Section 125(1) of the Criminal Procedure Code. As per the explanation, the word ‘wife’ used in Section 125(1) includes a divorced wife so long as she has not remarried etc. The question was as to whether this Explanation applies to Muslims as well. The Supreme Court held that Section 125 has an overriding effect over the Personal Law of the parties. Evidently the Supreme Court declined to accept the argument that in the explanation to Clause (b) of Section 125(1) the word ‘wife’ should be. read as “Hindu wife or as a wife other than Muslim wife”. The Supreme Court found no justification reading down the clause so as to confine it to Hindus or to husband whose personal law prohibited bigamous marriage.
28. I have referred to this authority because apparently the authority appears to enlarge rights to the Muslim women. It was sought to be relied upon by way of analogy. But what is to be noted is that even this authority does not give right to women to conduct themselves un-reasonably so as to drive their husband to take steps which may be ultimately detrimental to themselves. The only question decided by the Supreme Court is as to whether the law enacted by the Parliament in Section 125 of the Code has the overriding effect upon the Personal Law of the parties or not and the only question decided by the Supreme Court is that it does have such effect. But that question does not arise in the present case at all. The question in the present case does not arise out of the conflict between the Personal Law and the statutory law. Question in the present case is whether the provision contained the said illustration to Sub-section (3) of Section 125 of the Code should be so construed that one of the spouses should be allowed to take advantage of his or her own wrong. I see no reason why it should be so construed.
29. But Mr. Mantri wanted to distinguish the authorities relied upon by Mr. Kadar on the ground that in all these cases the wife who was to be the wrong doer had stayed away from her husband for a sustained period of about 4 to 5 years. The argument was that it was because of such sustained desertion that the Court hold her to be in the wrong and her further that she was not entitled to take advantage of her own wrong. In the instant case the wife has lived away from her husband at the most for a few months. She started living away from her husband and sometime thereafter the husband gave her the notice dated 26-5-82 and reissued it on 3-7-1982. No. doubt, she failed to comply with the notice; but it is not as if that the husband waited for a long time. He noticed the second wife on 29-7-1982. The contention, therefore, is that the authorities relied upon by Mr. Kadar do not apply in the instant case.
30. I have carefully examined this contention, am unable to accept it. The real ratio of the Allahabad, Madras and the Nagpur Authority is not based upon the passage of time. The real principle involved is that the wrong committed by the wife which drives the husband to contract a second marriage disentitled the wife to claim maintenance. If in any of those cases there was a sustained period of separation between the husband and the wife, volunteered by the wife herself, in the present case there is the notice given by the husband by which he kept on record all the facts and showed that she was in the wrong. He further stated that in spite of ail these facts he wanted her to come back to him to lead a happy married life. It is not as if that he did not give her a reasonable period to consider, I do not see why the reasonable period should consist of year and years together. It would be an unreasonable law if it expects a husband to remain unhappy and miserable for years together just because his wife decides to cut her own nose to spite his face. She decided to remain adamant. Her present contention is that he wanted her to bring a golden ring for the child. The notice given by the husband completely belies her. Both the Courts below have held that her contention is not true. She had, therefore, no justification whatsoever not to comply with the most reasonable demand made by the notice, It is this fact which has driven the husband to find new sources for a happy married life. His personal law allowed him to do so. In this view of the matter, to my mind it cannot be said that the wife was not in the wrong. It follows that her filing of the petition for maintenance on the ground that her husband has married a second wife cannot but amount to taking advantage of her own wrong.
31. An interesting argument was advanced before me by placing reliance upon Sub-section (4) of Section 125 of the Cr. Procedure Code. It was suggested that the applicant wife must be deemed to have been living separately from her husband by mutual consent. The factual position in the present case is that the wife had been living away from her husband without any justification. Initially the husband was not happy about that position and he tried to take her back but when she was adamant he became reconciled to that position and married a second wife. The argument was that means that the wife wanted to live away from her husband and husband showed consent to her living away. It was, therefore, argued that by virtue of the provisions of Sub-section (4) of Section 125, the wife must be held to be disentitled to claim maintenance.
32. The argument, as stated at the outset, is quit attractive ; but it is unnecessary for me to make any further observations in this behalf.
33. The revision application, therefore, succeeds, The Rule earlier issued is made partly absolute and the order passed by the Sessions Court granting maintenance to respondent No. 1 is hereby set aside. The order in favour of the child, respondent No. 2, however stands confirmed.
Revision allowed.