Hanifabibi v. Basirkhan Alikhan Pathan — 1985 DIGILAW 53 (GUJ)

JUDGMENT : B.S. Kapadia, J. The present application has been filed by the original petitioner, wife of Basirkhan Alikhan Pathan, who is the original opponent No. 1. The short facts of the case can he stated as under:- 2. The present applicant Hanifabibi married the opponent No. 1 Basirkhan at Vadnagar according to Muslim rites in the year 1955. According to her she went to her husband's place and stayed with him as his wife, but the opponent No 1 started ill-treatment from the very beginning as she was not liked by him. That she was driven away by the opponent No. 1 out of the house and sent her at her parents place at Vadnagar and she is there since last 20 years. It is also alleged that she was refused maintenance and her husband has neglected to maintain her. 3. The petitioner therefore, filed an application being the Criminal Misc. Application No. 44 of 1979 before the learned Judicial Magistrate First Class, Kheralu. In the said application she has also pointed out along with the facts stated hereinabove that in the year 1970 the opponent No. 1 married another woman Hafizabibi and both of them reside as husband and wife at Ahmedabad and after their married life there are two daughters. The petitioner wife therefore, alleged that she is entitled to reside separately and to get maintenance from the opponent-husband. On the point of quantum the petitioner has stated that the opponent No. I is possessed of a house and agricultural lands and that he is also drawing handsome salary. The petitioner therefore, prayed maintenance at the rate of Rs. 500 per month. 4. The present opponent No. 1 who was the opponent in the aforesaid application has also filed the reply at Exh. 9. He denied the allegations about ill-treatment and driving away the petitioner to her parents place and the allegation that the opponent husband has neglected to maintain the petitioner-wife. The opponent-husband averred that he was always ready and willing to keep her as wife. With regard to the allegation against the second marriage, he has stated that he was all along and he was required to attend the domestic work and so, in the year 1970 he had married another woman within the knowledge of the applicant and her parents. With regard to the allegation against the second marriage, he has stated that he was all along and he was required to attend the domestic work and so, in the year 1970 he had married another woman within the knowledge of the applicant and her parents. Since then he is residing with his second wife Hafiza Bibi and he has also stated that out of the married life with the second wife Hafiza Bibi she has given birth to two daughters. He has further stated that as per the Muslim Law he can marry as many as four wives. He has also stated that he is ready and willing to keep the applicant as his house along with the other members of the family and will maintain her and that he is prepared to give assurance for the same if it is also desired by the applicant or her relatives. With regard to his income, he has stated that the house and the agricultural fields are joint family properties and they stand in the name of his father and he taking the agricultural income. With regard to his salary he has stated that his monthly emoluments come to Rs 579.50. He also stated that his health has deteriorated and since last 6/7 months he is suffering from T. B. and that he requires substantial amount in the medical treatment. 5. After considering the evidence on record, the learned J.M.F.C. by his order dated 12th January, 1981 allowed the application and ordered the opponent No. 1 to pay to the petitioner an amount of Rs. 100 per month regularly as maintenance from the date of the application. 6. The present opponent No.1 has filed the Criminal Revision Application No.19 of 1981 before the learned Sessions Judge, Mehsana. The learned Sessions Judge by his order dated 12th June, 1981 allowed the, said revision application and the above mentioned order passed by the learned Magistrate was set aside. Against the said order the present revision application has been filed by the original petitioner. 7. Mr. Qureshi, the learned Advocate for the applicant submits that the entire approach of the learned Sessions Judge is erroneous. He submits that very observation made by the learned Sessions Judge in his judgment is contrary of the provisions of section 125 of the Criminal Procedure Code. 7. Mr. Qureshi, the learned Advocate for the applicant submits that the entire approach of the learned Sessions Judge is erroneous. He submits that very observation made by the learned Sessions Judge in his judgment is contrary of the provisions of section 125 of the Criminal Procedure Code. He further submits that part from the proof of ill- treatment to the applicant after her marriage with the opponent No. 1, the original application for maintenance was filed in the year 1979 and on the date the opponent No.1 was residing with the second wife and therefore, the present petitioner was entitled to reside separately and therefore as she is claiming the maintenance from the date of the application it is not necessary to examine the facts prior to 1970 and that the learned Judge has wrongly appreciated the entire evidence. He has further pointed out the observation from the judgment of the learned Addl. Sessions Judge "Moreover, the parties are Muslims the second marriage by itself will not justifiably entitled the applicant for separate maintenance and residence as claimed by her." He further submits that this proposition of law which is the basis for rejecting the claim of the applicant is totally erroneous and misconceived. 8. Mr. Basirkhan, the opponent No. 1 is personally present, I have heard him fully. He submits that there are certain incorrect averments made in the application by the petitioner but be does not deny the factum of marriage in the year 1955. He also does not dispute that he married second wife in the year 1970. He has also pointed out that the statement made by her that there is none to look after her maintenance is not correct. He also submits that she is in possession of the property of her father in pursuance of the will which is produced at Exh.38 and under the circumstances it cannot be said that she is unable to maintain herself and therefore she is not entitled to get maintenance. 9. It is true that as per Muslim law the Muslim men can undergo marriage with four wives add therefore, if the validity of the second marriage with Hafija Bibi is challenged, then certainly that cannot be said to be illegal. 9. It is true that as per Muslim law the Muslim men can undergo marriage with four wives add therefore, if the validity of the second marriage with Hafija Bibi is challenged, then certainly that cannot be said to be illegal. The question is not about the validity of the second marriage, but when the present opponent No. 1 married Hafija Bibi, as per the Explanation of sub-sec. (3) of Section 125 of the Criminal Procedure Code the present petitioner gets a just ground to refuse to live with Basirkhan. This explanation has been totally ignored by the learned Addl. Sessions Judge while dealing with the revision application and on misconception observed that the second marriage by itself will not justifiably entitle the applicant for separate maintenance and residence as claimed by her. It may be stated that the petitioner is claiming maintenance under section. 125 of the Criminal Procedure Code and the Explanation thereto applied equally to Mohmedans also and to that extent the statute law prevails the personal Muslim Law. In view of the said explanation the petitioner is entitled to refuse to live with her husband Basirkhan. If the entire matter would have been considered in the light of the said Explanation, possibly the learned Addl Sessions Judge would not have come to the wrong conclusion, which he has arrived at. When that is so, there is no question of considering the willingness of the opponents to maintain the applicant, if she resides with him. In that view of the matter the applicant is entitled to get maintenance. 10. Next question would be, whether she is unable to maintain herself or not. On this point it was alleged that as per Will she has received the properties from her father. The copy of the Will is produced at Exh. 38. On the perusal of the......... Will Exh. 10. Next question would be, whether she is unable to maintain herself or not. On this point it was alleged that as per Will she has received the properties from her father. The copy of the Will is produced at Exh. 38. On the perusal of the......... Will Exh. 38 it is clear that after, the death of Afazalkhan, the father of the petitioner the properties mentioned in the said Will were to be administered by Bai Soji, who is the mother of the petitioner and she had the right to administer the property till her life time and after the death of petitioner's mother Bai Soji, the present petitioner Hanifa the daughter of Afazal Khan would have the right to administer the properties and she would be entitled to get income from the properties when she Is administering the properties and after Hanifa, Mehmood Khan, who is the son of Afazal Khan is to administer the properties. Thus, it is clear from the Will that the petitioner has not directly received the properties from her father. It is not disputed that Bai Soji, the widow of Afazal Khan is alive and therefore, all the properties of Afazal Khan as per the Will Exh. 38 are under the management and administration of petitioner's mother. Therefore, the whole argument that was based that the petitioner his inherited the properties of her father pursuant the Will Exh 38 is without any substance. 11. Apart from the other properties which according to the opponent No. 1 belong to his father, there is no dispute on the point that he is serving as clerk in the Railway and he has admitted in the written statement that his salary is Rs. 579.50 on the date when he filed the written statement. When the order is passed in 1981 certainly his salary must have been increased along with the Dearness Allowance, etc. and therefore, the order passed by the learned Judicial Magistrate First Class, at Kheralu in the Criminal Misc. Application No. 44/79 directing the opponent No. 1 to pay Rs.100 per month to the petitioner as maintenance is quite reasonable. In that view of the matter the order passed by the learned Addl. Sessions Judge, Mehsana in the Criminal Revision Application No. 19 of 1981 is hereby set aside and the order passed by the learned Judicial Magistrate First Class, Kherlu in the Misc. In that view of the matter the order passed by the learned Addl. Sessions Judge, Mehsana in the Criminal Revision Application No. 19 of 1981 is hereby set aside and the order passed by the learned Judicial Magistrate First Class, Kherlu in the Misc. Criminal Application No.44/79 is restored. The opponent No. 1 Basirkhan Alikhan Pathan to pay the costs of the present revision application to the petitioner. Rule made absolute. Revision allowed.