Judgment

FAZAL ALI, J.:- This appeal by special leave is directed against a judgment dated August 27, 1980 of the Gujarat High Court* accepting the revision application of the respondent and setting aside the order of the Metropolitan Magistrate Ahmedabad. The facts of the case lie within a very narrow compass, which may be detailed thus.

* Reported in 1981 Cri. L. R. 197 (Guj).

2. The respondent who is the wife of the appellant filed an application before the Magistrate under S. 125 of the Code of Criminal Procedure, 1973 (hereinafter referred to as the Code of 1973) for grant of maintenance by the appellant on the ground that her husband-appellant was guilty of wilful neglect and was unable to fulfil his primary responsibility of discharging his marital obligations. The parties were married on May 27, 1978 according to Sunni Muslim rites. After the marriage the respondent lived with her husband up to July, 1978. The respondent alleged that during this period she found her husband to be physically incapable of carrying on sexual relationship and that, her husband frankly told her that he was impotent. The respondent further alleged that she was maltreated and ultimately driven out of the house by her husband on July 11, 1978. On November 17, 1978 the appellant sent a registered notice (Ext. 5) to the respondent informing her that he had no physical disability and was prepared to keep her with him and discharge his marital obligations. On October 28, 1978 the respondent filed an application before the Magistrate for awarding maintenance against the appellant.

3. So far as the facts found are concerned, there is no dispute and the case will have to be decided on the point of law that arises on the contentions raised by the parties before the courts below as also in this Court. Both the High Court and the Metropolitan Magistrate clearly found that the appellant was physically incapable of having sexual relations with the respondent. In other words, the concurrent finding of fact by the courts below is that the appellant was impotent and was, therefore, unable to discharge his marital obligations. The respondent however, refused to live with her husband on the ground that as he was impotent and unable to discharge his marital obligations she could not persuade herself to live with him and thus inflict on herself a life of perpetual torture. The Metropolitan Magistrate relying on a decision of the Allahabad High Court in Bundoo v. Smt Mahrul, 1978 Cri LJ 1661, found that the mere ground that the husband was impotent was not a just cause for the refusal of the wife to live with her husband and accordingly dismissed the application filed by the respondent for maintenance.

4. Thereafter, the matter was taken up in revision before the High Court which differed from the view taken by the Magistrate and held that the husband having been found to be impotent this should be a just ground for the wife to refuse to live with the husband and hence she was entitled to the grant of maintenance. The High Court after having come to the aforesaid conclusion further held that having regard to the means of the husband he was in a position to pay Rs. 150/- per month by way of maintenance to the respondent. Hence, this appeal by special leave by the appellant- husband.

5. Mr. Keshwani, learned counsel for the appellant, vehemently contended below us that it is now well settled by a long course of decisions of various High Courts that impotency is, no good ground of reason for the wife to refuse to live with her husband and hence the wife is not entitled to maintenance if she refused to live with the husband merely because her husband was impotent. Mr. Keshwani cited a number of decisions in support of his contentions, on the other hand, Mr. Dave, appearing for the respondent, submitted that the various authorities of the High Courts seem to have overlooked the legal effect of the second proviso to sub-section (3) of Section 125 of the Code of 1973 under