1990 Supreme(Bom) 154

IN THE HIGH COURT OF BOMBAY
M.L. Pendse D.J. Moharir, JJ.
Mustafa Shamsuddin Shaikh... Petitioner.
Versus
Shamshad Begum Mustafa Shaikh others .... Respondents.
Criminal Writ Petition No. 1190 of 1986, decided on 5-4-1990.
Advocates appeared :
A.N. Maniyar, for petitioner.
I.S. Thakur, for respondents Nos. 1 and 2.
R.Y. Mirza, P.P., for respondent No. 3.
R.M. Agarwal, for the Union of India.

Headnote:Section 125 (3)-Wife demanding maintenance-Wife living separated Parties Muslims-Civil suit by husband against wife claiming conjugal rights-During pendency of proceedings under Section 125, husband contracting second marriage-Magistrate granting maintenance on ground that husband petitioner contracted second marriage which was an act of cruelty justifying separate living by wife-Husband justifying his action of contracting second marriage due to fault of wife which was not an act of cruelty whether Magistrate justified in granting maintenance.

       Held-Court will proceed on the assumption that it was the wife who was in wrong in leaving the house in the year 1997. But would that disentitle her to claim maintenance on the date when the Magistrate passed the order? It is necessary to bear in mind that the crucial date for ascertaining whether a wife is entitled to live separately and maintenance in the date on which the Magistrate passes the order. The Magistrate is required to take into consideration the facts and circumstances existing on that date. In the present case, even assuming that the wife was in the wrong in leaving the husband, still on the date when the Magistrate passed the order, she was entitled to live separately because of the action of the husband in contracting second marriage. The husband contracted second marriage on May 8, 1983 i. e. during the pendency of proceedings under Section 125 of the Criminal Procedure Code. Once the husband contracted the second marriage, then the first wile was entitled to live separately, the petitioner had no desire to take back the first wife after contracting second marriage. Whether he transpired earlier, that loses all its relevance when on the date of the order passed by the Magistrate the husband had contracted second marriage. It is not in dispute that the wife is unable to maintain herself and her husband bad sufficient means. The neglect or refusal to maintain is demonstrated by disinclination of the petitioner to take back the first wife after contracting the second marriage. The order of the Magistrate, therefore, cannot be faulted.

       Section 125-Claim of maintenance by wife-Mohamadan husband contracting second marriage- Wife leaving matrimonial home-Conduct of Wife-Held even if wife is at fault she is entitled to claim compensation provided she is unable to maintain hereself.

       The provisions of Section 125 of the Code are enacted to give helping hand to a woman who is unable to maintain hereself and whose husband having means, neglects or refuses to maintain her. The proceedings under section 125 are of summary nature and the Magistrate is not required to determine which party to the marriage is at fault. The ambit of inquiry before the ,Magistrate is only whether the wife is unable to maintain herself and whether the husband has refused or neglected to maintain her. It is undoubtedly true that in the present case the husband had given notice to the wife to return back to the matrimonial home and the notice was followed by filing of a Suit for restitution of conjugal right. The decree granting restitution was passed by the trial Court but was set aside in appeal. Court will proceed on the assumption that it was the wife who was in wrong in leaving the house in the year 1977, but would that disentitle her to claim maintenance on the date when the Magistrate passed the order? It is necessary to bear in mind that the crucial date for ascertaining whether a wife is entitled to live separately and maintenance is the date on which the Magistrate passes the order. The Magistrate is required to take into consideration the facts and circumstances existing on that date. In the present case, even assuming that the wife was in the wrong in leaving the husband, still on the date when the Magistrate passed the order, she was entitled to live separately because of the action of the husband in contracting second marriage.

       Section 125 (3), Explanation-Mnslim wife claiming for maintenance Magistrate allowed maintenance- Confirmed by Sessions Judge-Petition under Article 226 of the Constitution challenging the order.

       In the present case, even assuming that the wife was in the wrong in leaving the husband, still on the date when the Magistrate passed the order, she was entitled to live separately because of the action of the husband in contracting second marriage. The husband contracted second marriage on May 8, 198 i.e. during the pendency of proceedings under Section 125 of the Code. Once the husband contracted the second marriage, then the first wife was entitled to live separately, it was very fairly stated that the petitioner had no desire to take back the first wife after contracting secona marriage. In courts judgment, whatever has transpired earlier that loses all its relevance when on the date of the order passed by the Magistrate the husband had contracted second marriage. It is not in dispute that the wife is unable to maintain herself and her husband had sufficient means. The neglect or refusal to maintain is demonstrated by disinclination of the petitioner to take back the first wife after contracting the second marriage. The order of Magistrate, therefore, cannot be faulted .