Judgement

NATARAJAN, J. :- Is a Muslim wife whose husband has married again worse off under law than a Muslim wife whose husband has taken a mistress to claim maintenance from her husband? Can there be a discrimination between Muslim women falling in the two categories in their right to claim maintenance under S. 125, Criminal P.C., 1973 (for short the "Code")? These fundamental questions of a startling nature run as undercurrents beneath the placid waters of this seemingly commonplace action for maintenance by a Muslim wife against her husband. We have projected these fundamental issues in the prefatory itself because these larger questions also arise for consideration in this appeal.

2. Now for a resume of the facts. The appellant was married to the respondent on 11-5-80 and she begot him a girl child on 9-5-81. On grounds of neglect and failure to provide maintenance she filed a petition under S. 125 of the Code in the Court of the Judicial First Class Magistrate, Kasargod, to seek maintenance for herself and the child at Rs. 500/- and Rs. 300/- per month respectively. The Magistrate dismissed the petition saying the appellant had failed to establish adequate justification for living separately. A revision was preferred to the Sessions Judge of Tellicherry. During the pendency of the revision the respondent married one Sahida Begum on 18-10-84, as his second wife. It was, therefore, urged in the revision that irrespective of the other grounds the second marriage of the respondent was by itself a ground for grant of maintenance. The Sessions Judge skirted the issue by taking a devious view that since the respondent had contracted the second marriage after giving the appellant sufficient time and opportunity to rejoin him and since he had offered to take her back even after the second marriage, the appellant was not entitled to claim maintenance. However, in so far as the child is concerned the Sessions Judge granted maintenance to it at Rs. 100/- per month. The appellant then preferred a petition to the High Court under S. 482 of the Code for grant of maintenance to her and for enhancing the maintenance awarded to the child. The High Court declined to interfere saying that the concurrent findings of the Courts below precluded the appellant from agitating her claim any further. The aggrieved appellant has approached this Court of last resort under Art. 136 of the Constitution for redressal of her grievance.

3. The principal controversy in the appeal centres round the rights and liabilities of the parties in the context of the second marriage entered into by the respondent on 18-10-84. The appellants case is that the second marriage has added a new dimension to her maintenance action and she has become entitled under law to live separately and claim maintenance. The counter argument of the respondent is that he was driven to the necessity of marrying again because the appellant failed to rejoin him but even so he had offered to take her back and maintain her and the said offer exonerated him from his liability to pay maintenance. The main defence, however, urged is that since he is permitted by Muslim Law to take more than one wife his second marriage cannot afford a legal ground for the appellant to live separately and claim maintenance. These rival contentions fall for our determination in this appeal.

4. The justification put forward for the second marriage cannot be taken as a tenable defence, even if such a defence is open, because there is no evidence to show that the respondent had asked the appellant to rejoin him and she had declined to do so before the respondent took his second wife. Therefore, what really needs consideration is whether the second marriage of the respondent confers a right upon the appellant to live separately and claim maintenance and secondly whether her rights stand curtailed in any manner because of the personal law governing the parties permitting a husband to marry more than one wife. The further