JUDGMENT
B.R. Arora, J.
1. This miscellaneous petition is directed against the order dated October 16, 1986, passed by the Additional Sessions Judge No. 1, Jodhpur, by which the learned Additional Sessions Judge allowed the revision petition filed by Mohammed Riaz and set-aside the order dated January 23, 1981, passed by the learned Judicial Magistrate No. 4, Jodhpur
2. Petitioner Mst. Noor Noor Bano filed an application under Section 125 Cr.P.C. for the grant of Maintenance in the Court of Judicial Magistrate No. 4, Jodhpur. It was averred in the application that she was married to Mohammed Riaz in the year 1965, and she remained with her husband Mohammed Riaz upto 19.6.1969. During this period, She was ill-treated by her husband and several limes, she was given beating. On 19.6.69, Mohammed Riaz sprinkled kerosene oil on her and tried to kill her, but she could manage to save herself. Thereafter she was divorced by her husband and turned out from the house. Mohammed Riaz afterwards contracted second marriage and is living with his second wife, while the applicant has not contracted re-marriage and is living with her father. It was further averred in the application that she is unable to maintain herself and, therefore, she may be granted maintenance. This application was opposed by the husband Mohammed Riaz. He denied the allegations of giving Talak by him. He, also, denied the allegations of ill-treatment, sprinkling of kerosene oil on her or any attempt to kill Mst. Noor Bano. He, however, admitted that he contracted second marriage only because Mst. Noor Bano deserted him. It was, also, stated in the reply that Mst. Noor Bano filed a civil suit in the Civil Court for the grant of “Mehar” on the same grounds and that suit was dismissed by the learned Civil Court and the appeal against the judgment was, also, dismissed. According to him, as Mst. Noor Bano deserted him, he, also, filed a suit for restitution of conjugal rights and that suit was decreed by the Civil Court and an appeal was preferred by the applicant Mst. Noor Bano, which was, also, dismissed. The non-applicant tried to get the decree of restitution of conjugal rights executed, but the applicant refused to live with him and as she is not living with him without any sufficient cause and, therefore, she is not entitled for any maintenance. It was, however, averred in the reply that if the petitioner comes and stays with him then he will arrange for her a separate house and will maintain her. The applicant, in support of her case, examined herself as AW 1 and, also examined her brother Babu as AW 2 and her father Ramzan as AW 3. The non- applicant Mohammed Riaz, in support of his case, examined himself as NAW 1 and produced Mohammed Hanif as NAW 2. The learned lower Court, after trial, came to the conclusion that the applicant was never divorced by the husband nor was she neglected or ill- treated by the husband but the husband has contracted second marriage and as she is unable to maintain herself, the learned trial court, therefore, allowed the application of the applicant (wife) Mst. Noor Bano and awarded the maintenance of Rs. 80/- per month from the date with the order dated January 23, 1981, awarding maintenance to the wife, the husband preferred revision before the learned Sessions Judge, Jodhpur, which was transferred to the Court of the Additional Sessions Judge, No. 1, Jodhpur,for disposal. The learned Additional Sessions Judge No. 1, Jodhpur, by his order dated 16.10.1986, allowed the revision petition, filed by the husband, set-aside the order dated January 23, 1981, passed by the learned Judicial Magistrate No. 4, Jodhpur, granting the maintenance to the wife. It is against this order that the wife has filed the present miscellaneous petition.
3. It is contended by the learned Counsel for the petitioner that in view of the Explanation to Sub-section (3) of Section 125 Cr.P.C., even a Muslim wife is entitled to get the maintenance on the ground of contracting second marriage by the husband. The learned Counsel for the husband (non-petitioner), on the other hand, has supported the order, passed by the learned lower Court and submitted that as per the Muslim Personal Law, a husband is entitled to have four wives and, therefore, his second marriage cannot afford legal ground for the petitioner to live separately from the husband and claim the maintenance. It is further contended by the learned Counsel for the non-petitioner that the non-petitioner (husband)was driven to contract the marriage again because the petitioner-applicant, without sufficient cause, failed to live with him and deprived him of the martial rights, but he is ready to keep her as wife even now.
4. The controversy in the present case centres round on two points, viz., the right of a Muslim wife whose husband has contracted second marriage, to get maintenance under Section 125 Cr.P.C. and the effect of refusal of the wife to live with the husband after the husband has contracted the second marriage.
5. Section 125 Cr.P.C. provides that if any person having sufficient means, neglects or refuses to maintain his wife then the Magistrate can order such person to make payment of monthly amount for the maintenance of such wife, not exceeding Rs. 500/- per month in all, as he thinks fit. Sub-section (4) of Section 125 Cr.P.C. provides that no wife shall be entitled to receive any maintenance allowance from her husband if she is living in adultery or without sufficient reasons, she refuses to live with the husband or if they are living separately by mutual consent. The wife is entitled to maintenance under Section 125 Cr.P.C. only if she is unable to maintain her and the husband has neglected or refused to maintain her. According to Explanation to Sub-section (3) of Section 125 Cr.P.C. if a husband has contracted marriage with another woman or keeps a mistress then it shall be considered to be a just ground for his wife’s refusal to live with him. The Explanation, thus, confers a right on the wife to live separately and claim maintenance from the husband if the husband causes injury to her matrimonial rights by marrying again or taking a mistress during the subsistence of the marriage with her. The wife has a right to refuse to live with her husband who has contracted second marriage. A husband cannot inflict indignity on a wife and cannot expect any self-respected wife to share conjugal home with another wife. Re-marriage itself is a sufficient ground for refusal to live with the husband. The Explanation appended to Section 125(3) Cr.P.C. is concerned with the right of the wife to claim maintenance from the defaulter husband and does not affect the rights of the Muslim husband of marrying again or the legal and social status of the subsequent wife to which she is entitled to as a legally wedded wife. The neglected wife, whose husband has contracted second marriage, is, therefore, entitled to refuse to live with the husband and can claim maintenance and the husband, who has performed the marriage again, during the subsistence of the earlier marriage, is bound to provide maintenance to the first wife as he is deemed to have neglected her.
6. The next question, which requires consideration is the effect of the decree of restitution of conjugal rights and the refusal of the wife to live with the husband, on the grant of maintenance. A wife can claim maintenance only if she is lying separately on account of some sufficient reasons and is unable to maintain herself, and secondly, the husband has neglected or refused to maintain her. In the present case, it has to be seen whether the wife has deserted the husband and forced him to contract, the second marriage and, thus, whether by her own conduct, she has disentitled herself for the grant of maintenance because if the re-marriage has been occasioned by the wife’s unjust refusal to live with the husband then she cannot take the advantage of her own wrong and cannot claim the maintenance. She is entitled to claim maintenance only if the re-marriage took place not on account of her refusal to live with the husband but it was the voluntary act of the husband unconnected with her refusal. The marriage between the parties took place in the year 1965, and they both lived together upto 19.6.1969 the day on which Mst. Noor Bano left the house of the husband. According to her, she left the house of her husband because she was ill- treated and her husb’.nd tried to burn her while according to the husband Mohammed Riaz, she left his house on her own accord without any justified reason. The justification put-forward by the non-applicant (husband) does not appear to be a tenable defence because there is no evidence on record to show that the non-petitioner had ever asked the petitioner (wife) to re-join him and that she declined to accept that offer or refused to do so before the husband took the second wife. A consideration of the evidence, produced by both the parties, clearly shows that no effort was ever made by the husband for the re-union of subsisting marriage, rather he contracted the second marriage without waiting for the reconciliation. They departed on 19.6.1969, and the husband Mohammed Riaz contracted second marriage on 4.6.1979, and there is nothing on record, from which it could be gathered that the husband ever tried for re-union. So far as the decree of restitution of conjugal rights is concerned, these proceedings, also, appear to have been instituted in order to save himself from the liability of payment of the maintenance allowance to the wife because Mohammed Riaz contracted the second marriage on 4.6.1970, while he filed the suit for restitution of conjugal rights in the Court on 31.10.1970, and the decree for restitution of conjugal rights was passed by the Court on on 18.3.1975. All these proceedings were instituted after the second marriage had already been contracted. These proceedings were, thus, never intended to take back the first wife (petitioner) to her matrimonial home, but were instituted only in order to save himself from his liability to maintain his wife (the petitioner). Though in the normal course, after the decree of restitution is granted in favour of the husband, if the wife refuses to live with the husband and to discharge her marital obligations then the husband, under Sub-section (43) of Section 125 Cr.P.C., cannot be asked to make payment of maintenance to the wife, but when the husband has already contracted second marriage and is living with his second wife or a mistress then the first wife is entitled to refuse to live with her husband and to claim maintenance, as she cannot be forced to share her conjugal home with the co-wife and the Courts are not expected to come to the rescue of a defaulting husband. The re-marriage in the present case has not been occasioned by the wife’s refusal to live with her husband and as such the petitioner cannot be precluded from claiming the maintenance on account of the second marriage of her husband during the subsistence of the first marriage. It may, however, be proper to mention here one more aspect of the case that though the wife came before the Court with the case that she may be granted maintenance as she was given “Talak” by her husband, but the husband denies the fact of giving Talak and both the Courts below came to the conclusion that the divorce (Talak) between the parties never took place and the marriage still subsists.
7. Chapter IX of the Code of Criminal Procedure, which contain Sections 125 to 128, deals with the maintenance of the wife, children and parents. These provisions of the Code of Criminal Procedure are intended to fulfil a social purpose and provide a preventive remedy for securing payment of maintenance to the neglected wife and the children. The object of these provisions is to compel a man to perform his moral obligations which he owes to the society in respect of his wife and children. These provisions are intended to protect the neglected wives and children against starvation and to tide over the immediate difficulties.
8. The offer of the husband to maintain the wife provided she comes and stays with him, does not appear to be genuine and bonafide and has been made in order to avoid the payment of maintenance allowance and the wife cannot be forced to share the conjugal home with another wife. In this view of the matter, I am of the opinion that the wife has sufficient reason to live separately and as she is unable to maintain her and, therefore, the husband Mohammed Riaz, who has contracted second marriage during the subsistence of the first marriage, is bound to pay maintenance to the wife Mst. Noor Bano as he is deemed to have neglected her.
9. In the result, the miscellaneous petition, filed by the petitioner, is allowed. The judgment dated October 16, 1986, passed by the learned Additional Sessions Judge No. 1, Jodhpur, is set-aside and the judgment dated January 23, 1981, passed by the Judicial Magistrate No. 4, Jodhpur, allowing the application under Section 125 Cr.P.C., filed by the applicant Mst. Noor Bano, and grant of maintenance from the date of the order, is restored.