Mohammed Asan vs Smt. Asiabibi

S. Ashok Kumar, J.—Aggrieved over the order of the learned Additional District and Sessions (Fast Track Court No. III), Coimbatore,

granting maintenance to the respondent, the petitioner has filed the present criminal original petition.

The brief facts of the case are as follows:

The petitioner and the respondent got married on 19.08.1987 and dispute arose between them in March 1988 and thereafter on 01.0.1988, a

Panchayat was held in the Jamath and she was taken back by the petitioner-husband. Thereafter, the petitioner-husband said to have beaten the

respondent-wife and did not provide her sufficient food and made her starve and hence, again she went again to her mother''s house. The petitioner

has married another woman who has got four children through her. Therefore, the respondent-wife filed an application in M.C. No. 1 of 2002

before the learned Judicial Magistrate No. 2, Pollachi, claiming maintenance of Rs.500/- per month who in turn by order dated 19.02.2003

awarded maintenance at Rs.750/- per month and also a sum of Rs.1500/- towards litigation expenses. Aggrieved over the said order, the

petitioner-husband filed Crl.R.P. No. 43 of 2003 before the Additional District and Sessions Judge (Fast Track Court No. III), Coimbatore and

the learned Judge by order dated 31.10.20203 dismissed the said revision with modification that the petitioner should pay a sum of Rs.500/- per

month towards maintenance to the respondent. Aggrieved over the said order the petitioner-husband is before this Court invoking Section 482 of

Code of Criminal Procedure.

Mr. A.M. Rahmat Ali, learned Counsel for the petitioner would contend that the grounds raised before the trial Court and revision Court, were

not considered by the said Courts. The first ground is that only after getting permission from the respondent-wife, the petitioner married another

woman and the second ground is that the petitioner has pronounced Talaq on the respondent and therefore, the respondent is not entitled for

maintenance. He would further contend that there is no justification for the respondent to live separately from her husband without any reason.

Per contra, Mr. N.M. Manokaran, learned Counsel for the respondent-wife would contend that no woman would live with her husband when

he has contracted second marriage and the refusal of the wife, in the above circumstance, is justifiable. To support the said contention, learned

Counsel relied on the judgment of the Hon''ble Supreme Court reported in Rajathi Vs. C. Ganesan, and paragraph 7 reads as follows:

In the present case wife alleged that her husband had contracted a second marriage on January 4, 1990. She filed a complaint, for an offence u/s

494 of the Indian Penal Code. It is stated that the complaint was dismissed and husband was acquitted. High Court took tis circumstance against

the wife and adversely commented on her refusal to live with her husband. High Court, it would appear, lost sight of the fact how it would be

difficult for the wife to prove the second marriage. This Court has held that to prove the second marriage as a fact essential ceremonies constituting

it must be proved and if second marriage is not proved to have been validly performed by observing essential ceremonies and customs in the

community conviction u/s 494 IPC ought not to be made. The fact, however, remains in the present case that the husband is living with another

woman. Proviso to sub Section (3) would squarely apply and justify refusal of the wife to live with her husband. There can be however,other

grounds for the wife to refuse to live with her husband, e.g., if she is subjected to cruelty by him. It was a case where the husband neglected or

refused to maintain his wife. High Court did not consider the question if husband was having sufficient means. If rather unnecessarily put the burden

on the wife to prove that she was unable to maintain herself. The words ""unable to maintain herself"" would mean that means available to the

deserted wife while she was living with her husband and would not take within itself the efforts made by the wife after the desertion to survive

somehow. Section 125 is enacted on the premise that it is obligation of the husband to maintain his wife, children and parents. It will, therefore, be

for him to show that he has no sufficient means to discharge his obligation and that he did not neglect or refuse to maintain them or any one of them.

High Court also observed that the wife did not plead as t since when she was living separately. This is not quite a relevant consideration. Even

though wife was unable to prove that husband has remarried, yet the fact remained that the husband was living with another woman. That would

entitle the wife to live separately and would amount to neglect or refusal by the husband to maintain her. Statement of the wife that she is unable to

maintain herself would be enough and it would be for the husband to prove otherwise.

The other contention of the counsel for the petitioner that the respondent has permitted for second marriage, is not proved by any evidence. Yet

another contention of the learned Counsel for the petitioner is that that the petitioner has divorced his wife the respondent after pronouncing Talaq.

But the said fact is not mentioned in the counter filed by the petitioner before the Court below in M.C. No. 1 of 2002. Further, being a divorced

woman, the respondent is entitled for maintenance and the Supreme Court in the judgment reported in (2007) 2 MLJ 829 (SC) (Iqbal Bano v.

State of Uttar Pradesh and Anr.) has held as follows:

Proceedings u/s 125 Cr.PC, are civil in nature. Even if the Court notices that there was a divorced woman in the case in question, it was open to

him to treat it as a petition under the Act considering the beneficial nature of the legislation. Proceedings u/s 125 Cr.P.C. and claims made under

the Act are tried by the same Court. In Vijay Kumar Prasad Vs. State of Bihar and Others, , it was held that proceedings u/s 125 Cr.PC are civil

in nature. It was noted as follows:

The basic distinction between Section 488 of the old Code and Section 126 of the Code is that Section 126 has essentially enlarged the venue

of proceedings for maintenance so as to move the place where the wife may be residing on the date of application. The change was thought

necessary because of certain observations by the Law Commission, taking note of the fact that often deserted wives are compelled to live with

their relatives far away from the place where he husband and wife last resided together. As noted by this Court in several cases, proceedings u/s

125 of the Code are of civil nature. Unlike clauses (b) and (c) of Section 126 an application by the father or the mother claiming maintenance has

to be filed where the person from whom maintenance is claimed lives.

Thus, looked at from any angle, the contentions raised by the learned Counsel for the petitioner are not sustainable and the petitioner is liable to

pay maintenance to his wife, the respondent. I do not find any reason to interfere with the order of the Courts below and hence, this criminal

original petition is dismissed. Consequently, connected Crl. M.P. is also dismissed.