Mohamed Haneefa vs Mariam Bi

Krishnaswami Reddy, J.—This revision petition Is filed by the husband against the order of the Sub-Divisional Magistrate. Gudalur, In M.

C. 143 of 1966, granting maintenance at the rate of Rs. 40 per month to his first wife the respondent herein.

The facts of the case are briefly these: The respondent, Mariam Bi, is the first wife of the petitioner, Mohamed Haneefa, having got married to

the petitioner on 22nd May 1962. They were living as man and wife amicably for some time. Later, the petitioner married another woman. Since

then, the petitioner neclected and refused to maintain the respondent. The respondent filed a petition u/s 488, Criminal P. C. before the Sub-

Divisional Magistrate. Gudalur, claiming a monthly maintenance of Rs. 50. The Sub-Divisional Magistrate granted maintenance to the respondent at

the rate of Rs. 40 per month mainly on the ground that u/s 488 (3), Cr. P. C. it would be just for the respondent to refuse to live with the petitioner

as he had contracted marriage with another woman and that, therefore, she would be entitled to separate maintenance.

The learned advocate for the revision petitioner raised two points, namely (1) that unless it is shown by the wife, notwithstanding the proviso to

Section 488 (3), Criminal P. C., that he refused or neglected to maintain her she will not be entitled to maintenance; and (2) that Section 488 (3),

Criminal P. C. second proviso, namely, if a husband has contracted marriage with another wife, or keeps a mistress it shall be considered to be

just ground for his wife''s refusal to live with him, would not apply to the personal law of Muslims, under which a husband can lawfully marry more

than one wife and that this proviso cannot affect or supersede the personal law.

So far as the first point is concerned, I am unable to agree with the learned counsel for the petitioner. Sadasivam, J. in Kandaswami Gounder

Vs. Nachammal, . has discussed the entire case law on this point and held that the proviso governs the whole of Section 488, Criminal P. C. and

that, therefore, a wife who refuses to live with her husband on account of his remarriage, is not prevented from claiming maintenance under

subsection (1) of Section 488, Criminal P. C. The second proviso to Section 488 (3), Criminal P. C. has been introduced by Act 9 of 1949

making it a just ground for a wife to refuse to live with her husband if he contracts a second marriage. On this point, I respectfully agree with

Sadasivam, J.

Even in respect of the second point raised by the learned counsel, I do not find any substance in it. It is true that the proviso to Section 488 (3),

Criminal P. C., was introduced by Act 9 of 1949 subsequent to the Hindu Married Women''s Right to Separate Residence and Maintenance Act

coming into force, by virtue of which, the first wife is entitled to claim separate maintenance when her husband takes a second wife. So far as the

Muslims are concerned, under their personal law, a husband can have four wives at one time. The contention of the learned counsel is that the

Hindu law allows by a statute for the first wife to live separately and claim maintenance if the husband marries for the second time, but under the

personal law of Muslims, it is not open for a wife to live separately on the ground of her husband having taken another wife and that, therefore, the

proviso to Section 488 (3), Criminal P. C. will not apply to the personal law of Muslims, There is absolutely no basis for such a contention in

respect of the proviso. It does not make any difference between one| party or the other. Nor is there any indication to show that it applies only to

parties governed by the law of monogamy. On the other hand, the Criminal Procedure Code is a general law giving a summary and speedy relief to

the destitute wife and children who are entitled to be maintained by the husband. One cannot read into the proviso what is not; found in it because

some hardship or inconvenience is caused to a husband governed by the personal law. It is possible that the Legislature might have thought about

all these aspects and deliberately introduced the proviso applying to all parties irrespective of the fact what their personal law is. It is not as though

that the aggrieved husband has no remedy. He can certainly file a suit to set aside the order of maintenance passed by the Criminal Court if he

could successfully make out that under the personal law, the wife will not be entitled to get maintenance on the ground that he had taken a second

wife. The learned counsel for the petitioner relied upon a decision in Abdulla Khan v. Chandni Bi, AIR 1956 Bhopal 71. It has been held in that

case that a Muslim woman will have no justification to refuse to live with her husband simply because he had contracted marriage with another wife

on the ground that the personal law of Muslims is not affected by the amended proviso to Section 488 (3), Criminal P. C. With respect, I am

unable to agree with this decision. Unfortunately, in that case, the Judicial Commissioner has assumed that a discrimination is made in the proviso

between the Hindus governed by the Hindu Married Women''s Right to Separate Residence and Maintenance Act and the Muslims governed by

their personal law and justifies such discrimination on the basis of reasonable classification based upon the outlook of persons belonging to the two

communities. As already noted there js nothing in that proviso to infer such a discrimination.

In Syed Ahmad v. N. P. Taj Begum, AIR 1958 Mys 128 K. S. Hegde, J. as he then was held that if the parties come within the mischief of

Section 488, Criminal P. C., they shall be governed by its provisions notwithstanding their personal law. I respectfully agree with the following

observations made in that decision--

The Criminal Procedure Code is a law of the land and not of any community. If there is a conflict between the law enacted by the Legislature and

the personal law then the former prevails, The legislative will is supreme in this land unless controlled by the Constitution.

In the result, I find no substance to any of the two contentions raised by the learned counsel. So far as the quantum of maintenance is concerned.

I am of the view, taking into consideration the circumstances of the case, the status of the parties and the income of the revision petitioner, that the

monthly maintenance of Rs. 40 awarded by the lower Court is excessive. I therefore, reduce the maintenance to Rs. 20 per month which will take

effect from the date of order by the lower Court. With the abovesaid modification, the revision petition is dismissed.