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IN THE HIGH COURT OF ALLAHABAD
P. K. JAIN
MOHD.ISMAIL - Appellant
Versus
SMT.BILQUEES BANO - Respondents
Criminal Revision 966 Of 1984
Decided On : 04/08/1997
MAINTENANCE ALLOWANCE - SECTION 125, CR. P. C. - INTERPRETATION - WIFE'S RIGHT TO MAINTENANCE - SUFFICIENT REASON FOR REFUSAL TO LIVE WITH HUSBAND - HUSBAND'S DUTY TO CREATE HARMONIOUS ATMOSPHERE - SUDDEN STOPPAGE OF MAINTENANCE ALLOWANCE WITHOUT SUFFICIENT REASON - MAINTENANCE ALLOWANCE AWARDED FROM DATE OF ORDER, NOT FROM DATE OF APPLICATION.
Fact of the Case:
Wife, Smt. Bilquees Bano, sought maintenance allowance under Section 125, Cr. P. C. from her husband, Mohd. Ismail, after she left the matrimonial home due to her inability to adjust with his first wife. The husband admitted to paying maintenance allowance to her prior to May, June 1982, but suddenly stopped. The court found that the husband had not made efforts to create an atmosphere in which both wives could live harmoniously.
Finding of the Court:
The court held that the wife had sufficient reason to refuse to live with her husband and was entitled to maintenance allowance by living separately. The court also observed that the husband had acquiesced in the second wife living separately and had consented to maintain her by living separately. The sudden stoppage of maintenance allowance was without sufficient reason.
Issues: 1. Whether the wife was entitled to maintenance allowance under Section 125, Cr. P. C. despite knowing about the husband's first marriage? 2. Whether the wife's refusal to live with the husband was justified? 3. From what date should the maintenance allowance be awarded?
Ratio Decidendi: 1. The court held that the wife's knowledge of the husband's first marriage did not bar her from claiming maintenance allowance, as the husband had a duty to create an atmosphere in which both wives could live harmoniously. 2. The court found that the wife had sufficient reason to refuse to live with the husband due to her inability to adjust with the first wife and the husband's failure to make efforts to create a harmonious atmosphere. 3. The court held that the maintenance allowance should be awarded from the date of the order, not from the date of the application, as no special reasons were stated for granting maintenance allowance from the date of the application.
Final Decision: The revision was partly allowed. The judgment and order of the court below awarding maintenance allowance was upheld, subject to the modification that the maintenance allowance shall be payable from the date of the order.
( 1 ) HEARD Sri Satish Trivedi, learned counsel for the revisionist. None appears for opposite party Smt. Bilquees Bano.
( 2 ) THIS revision is directed against the judgment and order dated 21-2-1984 passed by Sri U. C. Dhyani, IInd Addl. Munsif Magistrate (First Class), Bareilly allowing maintenance allowance to the opposite party Smt. Bilquees Bano at the rate of Rs. 150. 00 per month and at the rate of Rs. 100. 00 per month to her son Mohd. Shaheb Alam from May, 1982.
( 3 ) THE sole question raised in this revision is whether in view of the admitted facts between the parties Smt. Bilquees Bano was entitled or not to the maintenance allowance. It may be made clear at the very out set that so far as Mohd. Shaheb Alam is concerned, admittedly he was born out of the wedlock between the revisionist and opposite party Smt. Bilquees Bano. At the time of moving of the application under Section 125, Cr. P. C. he was around 6 months old. He has not been made party to the present revision nor there is any justification for setting aside the order of maintenance so far as it relates to Mohd. Shaheb Alam.
( 4 ) SO far as Smt. Bilquees Bano is concerned, findings of fact of the court below are that Smt. Bilquees Bano was married to the revisionist one year after divorce between Smt. Bilquees Bano and her first husband Chhotey, that at the time of marriage of Smt. Bilquees Bano with the revisionist she knew that Mohd. Ismail was having another wife, marriage with whom was in subsistence and that Mohd. Ismail was having sufficient means to maintain the wives including opposite party Smt. Bilquees Bano. The Court below has also obseved in its judgment that Mohd. Ismail admitted in his statement dated 27-6-1983 that he had not paid maintenance allowance to Smt. Bilquees Bano since May, June, 1982. It also appears from the admission made by the revisionist that the revisionist was paying maintenance allowance to Smt. Bilquees Bano prior to May, June 1982 although she was living separately. The main plea of the revisionist was that he was ready and willing to maintain her if she lived with the revisionist. The Court below has, however, held that in the circumstances of the case the wife had sufficient cause not to live with the husband and to claim maintenance allowance.
( 5 ) IT is contended by the learned counsel that it is the finding of the Court below that prior to her marriage with the revisionist Smt. Bilquees Bano was having illicit relation with the revisionist and at the time of the marriage she knew very well that the revisionist was having another wife and she must have known that she will have to adjust with the first wife. The Court below observed in its judgment that Smt. Bilquees Bano sometime after the marriage left matrimonial home as she was not able to adjust with the first wife. It is contended that in view of the findings and observations of the Court below Smt. Bilquees Bano was herself responsible for the situation created by her and she cannot claim maintenance allowance by living separately. It is to be noted that the Court below observed that it was the duty of the husband also to see that both the wives lived amicably in the matrimonial home and no efforts appear to have been made by the husband in this regard. Therefore, the wife could claim maintenance allowance by living separately.
( 6 ) SUB-SECTION (4) of Section 125, Cr. P. C. provides that no wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. The question that arises for consideration is whether the facts and circumstances stated above constitute a sufficient reason for the wife to refuse to live with her husband so as to entitle her to maintenance allowance by living separately from her husband. Explanation to proviso (2) to sub-section (3) of Section 125, C
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