JUDGMENT

V.G. Oak, J. - This revision application arises out of a proceeding u/s 488, Code of Criminal Procedure. Smt. Aisha Begum filed an application for maintenance against her husband Badruddin. Her case was that she and her husband lived together for six years. When the applicant fell ill, her husband abandoned her, and contracted a second marriage. Smt. Aisha Begum, therefore, claimed maintenance from her husband. Badruddin offered to keep his wife in his house, and declined to pay her maintenance. The learned Magistrate held that Smt. Aisha Begum was entitled to live separately from her husband, and ought to get maintenance from her husband. The court, therefore, ordered, Badruddin to pay Smt. Aisha Begum maintenance at the rate of Rs. 60 per month. A revision application filed by Badruddin was dismissed by the learned Addl. Sessions Judge of Kanpur. Badruddin has, therefore, come to this Court in revision. Smt. Aisha Begum was Badruddin's first wife. He conceded that he has contracted another marriage. The learned Magistrate held that, in view of Badruddin's second marriage, the first wife is entitled to live separately from her husband. The Court relied upon the following clause appearing in Sub-section (3) of Section 488, Code of Criminal Procedure:

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.

2. If this provision is effective, Smt. Aisha Begum is obviously entitled to live separately from her husband.

3. But Mr. Sadiq Ali appearing for Badruddin attacked that part of the provision of Section 488, Code of Criminal Procedure on a variety of grounds. He urged that that provision violates the fundamental right of Musalmans. It was urged that the provision violates Article 25 of the Constitution. Clause (1) of Article 25 is in these terms:

Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

4. Mr. Sadiq Ali relied upon The Commr., The Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt., AIR 1954 SC 282 . In that case their Lordships of the Supreme Court held that, the guarantee under the Constitution of India not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion, and this is made clear by the use of the expression "practise religion" in Article 25.

5. Mr. Sadiq Ali's argument is that, it is a fundamental right of a Muslim to have four wives. I do not agree. It may be that under the Personal Law of Muslims a Muslim may have as many as four wives. But I do not think that, having more than one wife is a part of religion. No authority was cited to show that it is obligatory upon a Musalman to have more than one wife. So any legislative requirement to the effect that a Musalman may not have more than one wife does not amount to interference with freedom of conscience or interference with the right to profess, practice and propagate religion. I, therefore, do not think that any provision of law in favour of monogamy involves violation of Article 25 of the Constitution. Secondly, Mr. Sadiq Ali contended that, the provision under consideration is in contravention of Act XXVI of 1937 (The Muslim Personal Law (Sharait) Application Act, 1937). Section 2 of that Act states:

Notwithstanding any custom or usage to the contrary, in all questions ... including ... maintenance ... the rule of decision in cases where the parties are muslims shall be in Muslim Personal Law.

6. This section clearly lays down that, in matters of maintenance Muslims shall be governed by Muslim Personal Law.

7. In Mulla's Mohammadan Law, thirteenth edition, the husband's duty to maintain his wife has been discussed in Section 277. The husband is bound to maintain his wife so long as she is faithf