SIRAJMOHMEDKHAN JANMOHAMADKHAN versus HAFIZUNNISA YASINKHAN & ANR.

Citation: [1982] 1 S.C.R. 695 · Decided: 14-09-1981 · Supreme Court of India · Bench: S. MURTAZA FAZAL ALI · Disposal: Dismissed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

, ' 
695 
A 
SIRAJMOHMEDKHAN JANMOHAMADKHAN 
v. 
HAFIZUNNISA YASINKHAN & ANR. 
B 
September 14, 1981 
[S. MURTAZA FAZAL ALI & A.P. SEN, JJ.] 
Code of Criminal Procedure, 1973-Section 
125(3)-Scope of-Husband's 
irppotence to have sexual ft!lations with his wife-Whether a just ground for grant 
of maintenance to the wife. 
C 
The respondent was the appellant's wife. Jn her petition under section 
125(3) Criminal Procedure Code, 1973 for grant of maintenance, the Metropolitan 
Magistrate, upheld her allegation that the appelJant was impotent and was 
incapable of having sexual relations with his wife. But the Magistrate refused 
to grant maintenance to her on the ground that the husband's .impotence was 
not a just cause for her refusal to live with the husband. 
Holding that impotence of the husband was a just ground for the wife to 
refuse to live with the husband, the High Court granted her maintenance. 
In appeal to this Court while the husband contended that impotence was 
not a good grourid for the wife's refusal to live with him, the wife contended 
that the second proviso to section 125(3) 1973 Code· enabled the wife to refuse 
to live with the husband if there was a just ground for doing so and in this case 
the husband's impotence was a just ground for such refusal. 
Dismissing the appeal. 
D 
E 
HELD : Proved impotence of the husband and his inability to discharge 
his marital obligations amount to both· legal and mental cruelty make it ajust 
F 
ground for the wife to refuse to live with the husband. The wife would be 
entitled to maintenance from him according to his means. [710G-7l lA] 
' 
The second proviso to section 125(3) of the 1973 Code was a proviso to 
section 488 of the 1898 Code which provides that it is incumbent on the Magis­
trate to consider the grounds of refusal ażd to make an order of maintenance, if 
he is satisfied that there is a just ground for the wife to refuse to live with the 
husbaod. 
Decisioos of High Courts that section 488 of the 1898 Code had 
nothing to do with the ordinary conjugal rights were directly opposed to the 
very object of the section. [703 D-F] 
Bundoo v, Smr. Mahml [1978] Cr. L, J, 1661, Emperor v. Dau/at JloibhOll & 
G 
Anr., A.I.R. 1948 Nagpur 69, Arunachala v. Anandayammal, A.l.R. 1933 Mad. 
B 
668, Jaggavarapu Basawamma v. Jaggavarapu Seeta Reddi, A.I.R. 1922 Mad. 
209 & Velayudhan v. Sukmari (1971] KLT 443 overruled. 
B 
c 
D 
E 
G 
H 
696 
SUPREME COURT REPORTS 
[1982] I S.C.R. 
In the Matter of the Petition of Din Muhammad ilLR [1883] 5 Allahabad 
226 approved. 
By an amendment made in 1949 the scope and ambit of the term "just 
ground" had been widened by adding a second proviso to section 488 of the 
1898 Code. The object of introducing this provision was to widen the scope and 
ambit of the term "just ground". This provision is not exhaustive but purely 
. illustrati\'e and self-explanatory and takes within its fold not only the two 
instances mentioned therein but other circumstances also of a like nature which 
may be regarded by the Magistrate as a just ground by the wife for refusing to 
live with her husband. 
In the present Code this provision has been incorporated 
as explanation to the second proviso to section 125(3). (703 G-704 BJ 
A perusal of this provision shows that it was meant to give a dear instance 
of circumstances which may be treated as a just ground for refusal of the wife 
to live with her husband. By virtue of this: provision, the proviso takes within 
its sweep all other circumstances similar l to the contingencies contemplated in 
the Amending provision as also other instances of physical, mental or legal 
cruelty not excluding the impotence of the husband. 
These circumstances clearly 
show that the grounds on which the wife refuses to live with her husband should 
be just and reasonable as contemplated by the proviso. 
Similarly, where the 
wife has a reasonable apprehension arising from the conduct of the husband that 
sht" is likely to be physica1!y harmed due to persistent demands of dowry from 
her husband's parents or relations, such an <ipprehension also would be mani­
festly a reasonable justification for the wife's refusal to live with her husband. 
[704 D F] 
Where a husband had contracted a marriage with another woman or kept 
a mistress, it was considered to be a just ground for the wife's refusal to live with 
the husband: Similarly where a wife refuses to live with an impotent husband who 
is unable to discharg

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