LexBEGUM SUBANU ALIAS SAIRA BANU & ANR. versus A.M. ABDUL GAFOOR
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
;
BEGUM SUBANU ALIAS SAil~A BANU & ANR.
v.
A
A.M. ABOtJL GAFOOR
--(
APRIL 3, 1987
'
(A.P. SEN AND S. NATARAJAN, JJ.)
B
Code of Criminal Procedure, 1913-Section 125 and Explanation
-~
to second proviso of sub-section (3 )-Maintenance-Right of a Muslim
wife to live separately and claim maintenance against the husband who
'
marries another wife or takes a mistress-Liability to pay mainte-
"'
,...- nonce-Husband not absolved by offer to take back wife and maintain
-
c
her-Right of Muslim husband to take more than one wife not
affected-Scope and effect of.
~
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 liled a petition under Section 125 of D
the Code of Criminal Procedure, 1973, seeking maintenance for herself
and the child at Rs.500 and Rs.300 per month respectively. The Magis-
Irate dismissed the petition on the ground that the appellant had failed
to establish adequate justification for living separately.
,..\
The appellant preferred a Revision Petition to the Sessions Judge. E
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·
1
nance. The Sessions Judge, however, held that the appellant was not
entitled to claim maintenance since the respondent had contracted the F
-----.(
second marriage after giving the appellant sufficient time and oppor-
tunity to rejoin him and since he had offered to take her back even after
the second marriage. Insofar as the child was concerned the Sessions
Jndge granted maintenance at Rs.100 per month.
The appellant preferred a Petition to the High Court under Sec-
G
tion 482 for grant of maintenance to her and for enhancing the mainte-
nance awarded to the child and the High Court declined to interfere on
--{
the ground t~at the concurrent findings of the Court below precluded
the appellant from agitating her claim.
In the appeal to this Court by special leave the appellant con-
H
773
774
SUPREME COURT REPORTS
[1987] 2 S.C.R.
tended that the second marriage of the respondent had added a new
A 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
B 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 appel-
lant to live separately and claim maintenance.
On the questions whether the second marriage of the respondent
C
confers a right upon the appellant to live separately and claim mainte-
nance 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.
D
Allowing the Appeal,
HELD: 1.1 Section 125 of the Criminal Procedure Code, 1973,
r
/
its fore-runner being section 488 of the Criminal PrOcedure Code 1898,
--)...,
has been enacted with the avowed object of preventing vagrancy and
E
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]
F
1.2. 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 dependent/dependents is/are unable to
maintain himself/herself/themselves as the case may be. [782E-F]
1.3 The Legislature being anxious that for the sake of mainte-
nance, the dependents should not resort to begging, stealing or cheating
G 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 aExcerpt shown. Read the full judgment & AI analysis in Lexace.