Muslim husband can keep four wives at a time as per the provisions of personal law of Muslims.

This revision petition is filed by the husband against the order of the Sub-Divisional Magistrate, Gudalur, in M.C. No. 143 of 1966 granting maintenance at the rate of Rs. 40 per month to his first wife, the respondent herein.

The facts of the case are briefly these: The respondent, Mariam Bi, is the first wife of the petitioner, Mohammed Haneefa, having got married to the petitioner on 22nd May, 1962. They were living as man and wife amicably for sometime. Later, the petitioner married another woman. Since then, the petitioner neglected and refused to maintain the respondent. The respondent filed a petition under section 488, Criminal Procedure Code, before the Sub-Divisional Magistrate, Gudalur, claiming a monthly maintenance of Rs. 50. The Sub-Divisional Magistrate granted maintenance to the respondent at the rate of Rs. 40 per month mainly on the ground that under section 488(3), Criminal Procedure Code, it would be just for the respondent to refuse to live with the petitioner as he had contracted marriage with another woman and that, therefore, she would be entitled to separate maintenance.

The learned Counsel for the revision petitioner raised two points, namely, (1) that unless it is shown by the wife, notwithstanding the proviso to section 488(3) Criminal Procedure Code, that he refused or neglected to maintain her, she will not be entitled to maintenance; and (2) that section 488(3), Criminal Procedure Code, second proviso, namely, if a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife’s refusal to live with him, would not apply to the personal law of Muslims, under which a husband can lawfully marry more than one wife and that this proviso cannot affect or supersede the personal law.

So far as the first point is concerned, I am unable to agree with the learned Counsel for the petitioner. Sadasivam, J., in Kandaswami v. Nachammal1, has discussed the entire case law on this point and held that the proviso governs the whole of section 488, Criminal Procedure Code, and that, therefore, a wife who refuses to live with her husband on account of his remarriage, is not prevented from claiming maintenance under sub-section (1) of section 488, Criminal Procedure Code. The second proviso to section 488(3), Criminal Procedure Code, has been introduced by Act IX of 1949 making it a just ground for a wife to refuse to live with her husband if he contracts a second marriage. On this point, I respectfully agree with Sadasivam, J.

Even in respect of the second point raised by the learned Counsel, I do not find any substance in it. It is true that the proviso to section 488(3), Criminal Procedure Code, was introduced by Act IX of 1949 subsequent to the Hindu Married Women’s Right to Separate Residence and Maintenance Act coming into force, by virtue of which, the first wife is entitled to claim separate maintenance when her husband takes a second wife. So far as the Muslims are concerned, under their personal law, a husband can have four wives at one time. The contention of the learned Counsel is that the Hindu Law allows by a statute for the first wife to live separately and claim maintenance if the husband marries for the second time, but under the personal law of Muslims, it is not open for a wife to live separately on the ground of her husband having taken another wife and that, therefore, the proviso to section 488(3), Criminal Procedure Code, will not apply to the personal law of Muslims. There is absolutely no basis for such a contention in respect of the proviso. It does not make any difference between one party or the other. Nor is there any indication to show that it applies only to parties governed by the law of monogamy. On the other hand, the Criminal Procedure Code, is a general law giving a summary and speedy relief to destitute wife and children who are entitled to be maintained by the husband. One cannot read into the proviso what is not foun