Begum Subanu Alias Saira Banu and Another v. A. M. Abdul Gafoor, [1987] 2 S.C.R. 773

Court: Supreme Court of India 

Bench: Hon’ble Justice A. P. Sen and Hon’ble Justice S. Natarajan

Date of Judgement: April 3, 1987

Relevant Provisions/Statutes: Section 125, Code of Criminal Procedure, 1973²

Brief Facts: 

The appellant was married to the respondent on 11.5.80 and gave birth to girl child 9.5.81. On  grounds of neglect and failure to provide maintenance she filed a petition under Section 125 of  the Code in the Court of the Judicial First Class Magistrate, Kasaragod to seek maintenance for 

herself and the child at Rs. 500 and Rs. 300 per month respectively. The Magistrate dismissed  the petition saying the appellant had failed to establish adequate justification for living  separately. A revision was preferred to the Sessions Judge of Tellicherry. During the pendency of  the revision the respondent married one Sahida Begum on 18.10.84, as his second wife. It was urged in the revision that irrespective of the other grounds the second marriage of the respondent  was by itself a ground for grant of maintenance. The Sessions Judge circumnavigated the issue  by taking a devious view that since the respondent had contracted the second marriage after  giving the appellant sufficient time and opportunity to rejoin him and since he had offered to take  her back even after the second marriage, the appellant was not entitled to claim maintenance.  However, in so far as the child is concerned the Sessions Judge granted maintenance to it at Rs.  100 per month. The appellant then preferred 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 

 ¹ Begum Subanu Alias Saira Banu and Another v. A M Abdul Gafoor (1987) 2 (Supreme Court of  India) 

² The Code of Criminal Procedure 1974

maintenance is awarded to the child. The High Court declined to interfere saying that the  concurrent findings of the courts below precluded the appellant from agitating her claim any  further. 

Issues: 

1. Whether the second marriage of the respondent provides just grounds for the appellant to live separately and claim maintenance?
2. Whether the respondent’s offer to take back the appellant and maintain her absolves him of his liability to pay maintenance?
3. Whether the Explanation to Section 125 of the Code of Criminal Procedure applies uniformly to all wives, including Muslim wives, whose husbands have contracted another marriage or taken a mistress?

Arguments: 

Appellant’s Arguments:

∙ Second marriage has added a new dimension appellant’s maintenance action and she has  become entitled under law to live separately and claim maintenance. 

Respondent’s Arguments:

∙ Respondent was driven to the necessity of marrying again because the appellant failed to  rejoin him but even so he had offered to take her back and maintain her and the said offer  exonerated him from his liability to pay maintenance. 

∙ Respondent is permitted by Muslim Law to take more than one wife his second marriage  cannot afford a legal ground for the appellant to live separately and claim maintenance. 

Judgment: 

The justification put forward for the second marriage cannot be taken as a tenable defence, even  if such a defence is open, because there is no evidence to show that the respondent had asked the  appellant to rejoin him and she had declined to do so before the respondent took his second wife.  For adjudicating the rights of the parties the Supreme Court construe the Explanation and

determine its scope and effect. The Supreme Court would have pointed out that the Explanation  of the section 125 of the Code of Criminal Procedure, 1973 contemplates two kinds of  matrimonial injury to a wife viz. by the husband either marrying again or taking a mistress. The  purpose of the Explanation is not to affect the rights of a Muslim husband to take more than one  wife or to denigrate in any manner the legal and Social Status of a second wife to which she is  entitled to as a legally married wife, as compared to a mistress but to place on an equal footing  the matrimonial injury suffered by the first wife on account of the husband marrying again or  taking a mistress during the subsistence of the marriage with her. 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. The Supreme Court held that the second  marriage constituted just grounds for the appellant to refuse to live with her husband and claim  maintenance, emphasizing that the law treats a second wife and a mistress equally in terms of the  injury caused to the first wife. Therefore, the respondent’s contention that his taking another wife  will not entitle the appellant to claim separate residence and maintenance cannot be sustained. The offer to take back the appellant and maintain her was not to the effect that he would set up a  separate residence for the appellant so as to enable her to live in peace and with dignity. 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 appellant’s rights cannot be negated or defeated. The Supreme Court found it unfortunate that the Sessions Judge and the High Court have  declined to grant maintenance to the appellant in spite of the appellant’s case falling squarely  under the Explanation. As the record contains evidence regarding the earnings of the respondent  the Supreme Court found itself in a position to determine the quantum of maintenance for the  appellant in the same appeal itself instead of remitting the matter to the Trial Court or the  Revisional Court. The Explanation of the section 125 of the Code of Criminal Procedure, 1973 is  of uniform application to all wives including Muslim wives whose husbands were either married  another wife or taken a mistress. Finally, the Supreme Court granted maintenance to the  appellant and increased the maintenance for their minor daughter, ensuring their financial  security. 

Ratio Decidendi:

The right has been conferred on the wife under to live separately and claim maintenance from the  husband if he breaks his vows of fidelity and marries another woman or takes a mistress. As  already stated it matters not whether the woman chosen by the husband to replace the wife is a  legally married wife or a mistress. The Explanation of the section 125 of the Code of Criminal  Procedure, 1973 is of uniform application to all wives including Muslim wives whose husbands  were either married another wife or taken a mistress.

Obiter Dicta:

The purpose of the Explanation of the section 125 of the Code of Criminal Procedure, 1973 is  not to affect the rights of a Muslim husband to take more than one wife or to denigrate in any  manner the legal and Social Status of a second wife to which she is entitled to as a legally  married wife, as compared to a mistress but to place on an equal footing the matrimonial injury  suffered by the first wife on account of the husband marrying again or taking a mistress during  the subsistence of the marriage with her From the point of view of the neglected wife, for whose  benefit the Explanation has been provided, 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 under law to be married and not a mistress. The legal status of the woman to whom a  husband has transferred his affections cannot lessen her distress or her feelings of neglect. In  fact, from one point of view the taking of another wife portends a more permanent destruction of  her matrimonial life than the taking of a mistress by the husband. The Explanation of the Code of  Criminal Procedure, 1973 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 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.

Final Decision:

The Supreme Court allowed the appeal. The Supreme Court granted the appellant maintenance  of Rs. 300 per month and increased the maintenance for their minor daughter to Rs. 200 per  month, highlighting the need to ensure the financial security of dependents. This amount will be  paid with effect from 18.10.84 when the respondent married a second wife. The arrears of maintenance will be paid by the respondent in five equal instalments, the first of such instalments

to be paid during the first week of June 1987. The subsequent instalments will be paid at  intervals of three months thereafter i.e. during the first week of September 1987, first week of  December 1987, first week of March 1988 and first week of June 1988. Future maintenance must  be paid before the 10th of every succeeding month. The Supreme Court also enhance the  maintenance to the minor girl (second appellant) to Rs. 200 per month from Rs. 100 per month  with effect from 1.1.1987. Default in payment of future maintenance or any instalments of the  arrears will entitle the appellant to levy execution against the respondent under Section 125(3) of  the Code and realize the amount.