Order.- In this criminal revision case, an interesting question is raised by the learned Counsel appearing for the petitioner, the question being whether a Hindu male spouse, on conversion to Islam, is relieved Of his obligation or liability to maintain his legally wedded female spouse and the children born to their lawful wedlock before his conversion? 2. The facts giving rise to the above criminal revision case do not admit of any controversy and may be briefly stated. 3. The petitioner married the first respondent in accordance with Hindu rites, both being Hindus. Respondents Nos. 2 to 6 were born to their lawful wedlock. Respondents 3 and 6 are their daughters. All of them, are minors. The petitioner, however, embraced Islam on 15th October, 1974 and invited the first respondent to embrace Islam. The first respondent did not yield to the wishes of the petitioner. The petitioner later married a muslim woman. Alleging desertion on the part of the petitioner, the first respondent prayed for maintenance for herself and for the children under section 125, Criminal Procedure Code. Maintenance was granted in a sum of Rs. 70 to the first respondent and in a sum of Rs. 30 each to respondents Nos. 2 to 6. The total monthly emoluments of the petitioner, who is working as a Village Development Officer, are Rs. 448. 4. Sri Mirza Munawar Ali Baig, learned Counsel for the petitioner, contends that by reason of the petitioner’s conversion to Islam, the marriage between the petitioner and the first respondent stood dissolved and that the liability of the petitioner under section 125, Criminal Procedure Code, automatically stood extinguished. Reliance is placed upon the following passage at page 20 of Mulla’s ‘Principles of Mahomedan Law’ (18th Edition): "According to Muslim Law a distinction is made between conversion to Islam of one of the spouses when such conversion takes place; (1) in a country subject to Muslim Law; and (2) in a country where the law of Islam is not the law of the land. In the first case, when one of the parties embraces Islam, he or she should offer Islam to the other spouse, and if the latter refuses the marriage can be dissolved. In the second case the marriage is automatically dissolved after the lapse of a period of three months after the adoption of Islam by one of the spouses".
In the first case, when one of the parties embraces Islam, he or she should offer Islam to the other spouse, and if the latter refuses the marriage can be dissolved. In the second case the marriage is automatically dissolved after the lapse of a period of three months after the adoption of Islam by one of the spouses". It must, however, be noted that after setting out the aforesaid principles, the learned commentator, Mulla, immediately stated: "This is, however, not the law in India". 5. In Robasa Khanum v. Khodadad Bomanji Irani1, a suit was filed by the appellant therein against the Zoroastrian husband for dissolution of her marriage. The parties were married in 1927 in Iran according to Zoroastrian law. The appellant subsequently embraced Islam. Her husband, when called upon to embrace Islam, declined to become a Muslim. Referring to the contention advanced on behalf of the appellant that by reason of conversion of the appellant to Islam, the marriage between her and the Zoroastrian husband stood dissolved, Chagla, J. (as he then was), speaking for the Court, observed thus: "We further hold that the law which must be applied is not the Muslim personal law, but we must decide the case according to justice and right. We further hold that it is not in accordance with justice and right that on the conversion of one of the parties to the marriage to Islam it should be held that the marriage stands dissolved". Applying the principle very succinctly enunciated by Chagla, J. (as he then was), it follows that by reason of conversion of the petitioner to Islam, his marriage with the first respondent did not stand dissolved. 6. In any event, the question of the effect of the petitioner’s conversion to Islam on his liability under section 125, Criminal Procedure Code, to maintain his abandoned or deserted Hindu wife and the children born to them appears to be res integra. It may be noted that section 125, Criminal Procedure Code, improves upon section 488 of the repealed Code of Criminal Procedure, in that, a divorced wife is also declared to be entitled to maintenance under section 125 until she remarries. The object of section 125 is to provide a summary remedy to neglected wives and children to apply for maintenance against their husband and fathers.
The object of section 125 is to provide a summary remedy to neglected wives and children to apply for maintenance against their husband and fathers. By reason of the Explanation appended to section 125(1), a divorced wife is also declared entitled to maintenance until she remarries. Such being the object of section 125, Criminal Procedure Code, it would lead to startling results, if it is to be held that on account of the petitioner’s conversion to Islam, he is relieved of his liability to maintain the respondents. There is, therefore, no substance in the submission of the learned Counsel for the petitioner. 7. There is also no substance in the other submission of the learned Counsel for the petitioner that by reason of the petitioner’s conversion to Islam, there was termination of conjugal relationship between him and the first respondent, that the marriage between the two consequently stood dissolved and that the petitioner is, therefore, not bound to pay maintenance to the respondents. Reliance is placed upon the decisions in Sona Ullah v. Ma Kin1 and Mt. Saidan v. Sharaf2. 8. In the first case, it was held that apostacy of a Mahomedan wife ipso facto dissolved the marriage, and that the wife was not thereafter entitled to receive maintenance from her husband. The instant case is the converse. I fail to see how the case affords any assistance to the petitioner. 9. In the second case, it was held that renunciation of Islam by one of the spouses resulted ipso facto in the dissolution of the marriage and that it was immaterial whether the motive for the renunciation was a genuine conversion or a mere device to have the marriage dissolved. This again is converse to the case on hand. 10. I must also observe that in neither of the two cases the question of liability of a Hindu male spouse to maintain his other spouse and the children born to their lawful wedlock on his conversion to Islam was decided. 11. As to the quantum of maintenance. I am not persuaded that the same is, in anyway, excessive. 12. The criminal revision case, therefore, fails and is accordingly dismissed.