Begum Sabanu v. A M Abdul Gafoor

  • The parties to the suit were married in 1980 and a daughter was born to them in 1981. On grounds of neglect and failure to provide maintenance, the wife filed a petition under Section 125 of the Code of Criminal Procedure, 1973 in the court of Judicial First Class Magistrate, seeking maintenance for herself and the child at Rs.500 and Rs.300 per month respectively. The Magistrate dismissed the petition on the ground that the wife had failed to establish adequate justification for living separately.
  • The wife, then, advanced a Revision Petition to the Sessions Judge. During the pendency of the said petition the husband married Sahida Begum as his second wife. It was, therefore, urged in the revision petition that irrespective of the other grounds, the second marriage of the husband was by itself a ground for grant of maintenance. The Sessions Judge, however, held that the wife was not entitled to claim maintenance since the husband had contracted the second marriage after giving the wife sufficient time and opportunity to rejoin him and since he had offered to take her back even after the second marriage. Insofar as the child was concerned the Sessions Judge granted maintenance at Rs.100 per month.
  • The wife, then, made a Petition to the High Court under Section 482 of the Code of Criminal Procedure, 1973 for grant of maintenance to her and for enhancing the maintenance awarded to the child. The High Court declined to interfere on the ground that the concurrent findings of the courts below precluded the wife from agitating her claim any further.
  • The wife, then, appealed before the Supreme Court by a Special leave petition under Article 136 of the Constitution of India.

Legal Reasoning

1. Whether the husband’s second marriage confers a right upon the first wife to live separately and claim maintenance?

Justice Natarjan observed: “…the Explanation [to the second provison to Section 125(3)] contemplates two kinds of matrimonial injury to a wife viz. by the husband either marrying again or taking a mistress. The Explanation places a second wife and a mistress on the same footing and does not make any differentiation between them on the basis of their status under matrimonial law…It will undoubtedly lead to a strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife. The Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband’s right to marry again. The Explanation has, therefore, to be seen in its full perspective and not disjunctively. Otherwise it will lead to discriminatory treatment between wives whose husbands have lawfully married again and wives whose husbands have taken mistresses…it matters not whether the woman chosen by the husband to replace the first wife is a legally married wife or mistress. Therefore, the husband’s contention that taking another wife will not entitle the first wife to claim separate residence and maintenance cannot be sustained.”

An excerpt from David Pearl and Werner Menski’s book reads as, ‘From the point of view of the neglected wife… it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted by law and not  mistress. The legal status of a woman to whom a husband has transferred his affections cannot lessen her distress or her feelings of neglect.’

The Courts have thus, rightly interpreted the right to the wife conferred under Explanation to Section 125 to live separately and claim maintenance from the husband if he marries another woman or keeps a mistress.

2. Whether the first wife’s rights stand curtailed in any manner because of the personal law governing the parties permitting a husband to marry more than one wife?

On Explanation to Section 125, Justice Natarajan observed: “…We need not resort to a comparison of Muslim wives with Hindu wives or Christian wives but can restrict the comparison to Muslim wives themselves who stand affected under one or the other of the two contingencies envisaged in the Explanation and notice the discrimination… The Explanation is of uniform application to all wives including Muslim wives whose husbands were either married another wife or taken a mistress.”

The judges also affirmed with the principle laid down in Mohd. A Kban v Shah Bano Begum that Section 125 overrides personal law in case of conflict between the two.

3. Whether, even, if the husband is liable to pay maintenance, he stands absolved of his liability after his offer to take back the first wife and maintain her?

Justice Natrajan observed:“…As has been pointed out in Chand Begum v. Hyderbaig (supra) a husband, who marries again cannot compel the first wife to share the conjugal home with the co-wife and as such unless he offers to set up a separate residence for the first wife, any offer to take her back cannot be considered to be a bona fide offer. It is, therefore, obvious that the offer was only a make-believe one and not a genuine and sincere offer. On the basis of such an insincere offer the wife’s rights cannot be negated or defeated.” (Pg 782, Para 1)

The judges also pointed out the error in the decision of the Sessions Judge and the High Court in declining to grant maintenance to the wife in spite of her case falling squarely under the Explanation.

Conclusion

The judges concluded that the husband’s second marriage does confer a right upon the first wife to live separately and claim maintenance notwithstanding the personal laws of Muslims and the husband, thus, is liable to pay maintenance to his wife.

Click here to download the full version of Maintenance – Begum Subanu v. A. M. Abdul Gafoor

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