1. A minor point of law which has its echoes in a profound issue affecting the community arises in this criminal revision petition. Since the matter was argued at some length, And with considerable persistence, By counsel for the petitioner i requested shri manhu, Advocate, To present all the aspects of the case as amicus curiae. He has discharged his duty to the court with refreshing ability and i must place on record my debt of gratitude to him.

2. The revision petitioner who married the 1st respondent and had 4 children by her is alleged to have neglected to maintain her and her children and so she moved the criminal court under s. 488 of the criminal procedure code for award of maintenance in favour of herself and her children. The court ordered a total sum of rs. 50/ - in favour of this destitute family. The high court, However, Enhanced this figure to rs. 120/ - per mensem by its order dated 28 21969 in variance of the'district magistrate's order dated 19 21968. On 10 41969 the wife, Who had by then, Whether by way of reprisal or not, Been divorced by talak uttered by the petitioner, Moved the district magistrate's court for recovery of arrears of maintenance at the rate awarded by the high court; (the petitioner who had married another woman offered to maintain the 1st respondent on condition of her living with him). He also raised another point regarding the period during which and the quantum at which maintenance could be claimed.

3. As for the quantum, The high court has settled it at rs. 120/ - per month, And the plea that the rate awarded by the district magistrate should prevail till that was revised by the high court and the enhanced rate should be adopted only from the date of the high court's order is too fallacious to be considered. The order of the high court takes effect in substitution of the district magistrate's order and becomes operative as if that were the original order. 1 overrule the objection altogether.

4. The petitioner's counsel contended that the provision in para 2 of the proviso to s. 438 (3) (brought in by way of amendment by the code of criminal procedure (amendment) act, 9 of 1949) could not affect the muslim community and, Therefore could not arm a muslim woman with the right to claim maintenance inspite of her refusal to live with her husband who has married another woman in the meanwhile.

5. The proviso to s. 488 (3) of the code certainly helps the husband to extricate himself from the obligation to pay maintenance to his wife if he offers to maintain her on condition of her living with him. If she refuses to live with him despite the offer, The magistrate may consider the grounds for such refusal and if he is satisfied that there are no just grounds for doing so may absolve the husband from payment of maintenance. The proviso goes on to state that if a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be a just ground for the wife's refusal to live with him. Based on this proviso, The learned magistrate repelled the contention of the husband that the wife's refusal to live with him was unjust and should be visited with the penalty of non - executability of the order for maintenance. The simple question is whether in a proceeding under s. 488 (3) of the code the refusal of the wife to live with the husband who has married another is just in the case of muslims whose personal law permits a male to marry upto four women at a time.

6. 70 years ago a law was enacted in india to prevent vagrancy by insisting on those who had a moral obligation to maintain a deserted wife or neglected child to pay, Provided they had sufficient means, Monthly allowances for the maintenance of the wife or child. No civilised state can relax its duty in this regard and so this humane jaw deserves to be enforced sternly in a country and at a time when the paramount law of the land breathes the spirit of social justice. But the amendment incorporated by act 9 of 1949 expresses the moral consensus of the community that a woman should not be driven to live with her husband who has transferred his affections to another woman either by marrying her or by keeping her as a mistress. The argument is that while this wholesome rule may apply to the rest of indian humanity. Muslims should be excused out of this civilized law, Because the fundamental assumption in the provision is that it is obnoxious to marry a second wife while the first is alive and this assumption does not hold good in the case of the muslims of india who under their personal law enjoy the privilege of four wives simultaneously. Mr. Justice hegde of the mysore high court (as he then was) nailed this contention in the following words:

"the plea of personal law makes no appeal to me. The criminal procedure code is a law of the land and not of any community. If there is a conflict between the law enacted by the legislature and the personal law then the former prevails. The legislature will be supreme in this land unless controlled by the constitution. There is no constitutional guarantee to respect the personal law of any community. There is no doubt that the amendment in question is the result of the working of social forces.

it is but natural in a country like ours, The social forces make themselves felt more effectively amongst certain sections of the people; but the common will is perceptible. These changes are not accidental but are intended to usher in a new way of life. They represent a new ideal and a trend. It is true that the personal law of the muslims as such has not been changed.

but if they come within the mischief of s. 488. Cr. P. C. They shall be governed by its provisions notwithstanding their personal law. A large number of decisions have been brought to my notice in support of the view taken by the trial court. I may usefully refer to the cases reported in srimati maiki v. Hemraj, Air. 1954 all 30:1953 alj. 473; rajeshwariamma v. K. M. Viswanath air. 1954 mys 31 & bhanwarlal v. Vitabai, Air. 1957 madh. Pra. 221.

i am in complete agreement with these decisions. Neglect or no neglect the petitioner in this court is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife. His plea that he has been compelled to take a second wife by the conduct of the first wife and her parents, Is not a plea that is open to him in law. His grievance may be genuine but law does not recognise it as a good defence. " (syed ahmad v. Naghath parveen taj begum air. 1958 mysore 128). In badruddin v. Aisha begum (1957 allahabad law journal 300) oak j. Had to consider a somewhat similar islamic argument. The extraordinary argument pressed by the husband was that by marrying four persons, A musalman was only doing an act pursuant to his religion and that under art. 25 of the constitution there was a guarantee which protected the practice of any religion indeed, The argument went to the extreme extent of claiming that it was a fundamental right of a muslim to have four wives. Oak j. Had no hesitation to observe and i have absolutely none too "i do not agree. It may be that under the personal law of muslims a muslim may have as many as four wives. But i do not think that, Having more than one wife is a part of religion. So any legislative requirement to the effect that a musalman may not have more than one wife does not amount to interference with freedom of conscience or interference with the right to profess, Practise and propagate religion. I, Therefore, Do not think that any provision of law in favour of monogamy involves violation of art. 25 of the constitution". The learned judge notices the right of the husband to marry more than one and the obligation of the wife not to refuse to live with the husband even if he has another wife if she desires to claim maintenance under the personal law. Oak j. Proceeds to observe:

"i, Therefore, Agree with mr. Sadiq ali, There is some conflict between sec 488 crl. P. C. And the personal law of muslims as regards maintenance. The question is whether s. 488, Cr. P. C. Ought to be enforced in spite of that conflict it will be seen that the code applies to the whole of india irrespective of castes or communities. Obviously, It applies to muslims also."

pressed with the contention that even under s. 488 crl. P. C. The court is bound to consider the personal law applicable to muslims, The learned judge held that the criminal court acting under s. 488 crl. P. C. Must give effect to the provision that if a husband has contracted a marriage with another wife it shall be considered to be a just ground for his first wife's refusal to leave with him.

"the civil court may not accept the principle laid down in s. 488, Crl. P. C. But a criminal court dealing with an application for maintenance is bound to follow that provision"

again, Mr. Justice krishnaswami reddy in a ruling reported in mohammed haneefa v. Mariam bi (air. 1969 madras 414) dealt with a case of muslims with special reference to s. 488 (3) of the code. His lordship observed:

"the contention of the learned counsel is that the hindu law allows by a statute for the first wife to live separately and claim maintenance if the husband marries for the second time, But under the personal law of muslims, It is not open for a wife to live separately on the ground of her husband, Having taken another wife and that, Therefore, The proviso to s. 488 (3), Criminal p. C. Will not apply to the personal law of muslims. There is absolutely no basis for such a contention in respect of the proviso. It does not make any difference between one party or the other. Nor is there any indication to show that it applies only to parties governed by the law of monogamy. On the other hand, The criminal. Procedure code is a general (aw giving a summary and speedy relief to the destitute wife and children who are entitled to be maintained by the husband. One cannot read into the proviso what is not found in it because some hardship or inconvenience is caused to a husband governed by the personal law. It is possible that the legislature might have thought about all these aspects and deliberately introduced the proviso applying to all parties irrespective of the fact what their personal law is. It is not as though the aggrieved husband has no remedy. He can certainly file a suit to set aside the order of maintenance passed by the criminal court if he could successfully make out that under the personal law, The wife will not be entitled to get maintenance on the ground that he had taken a second wife."

it is important to notice (hat the supreme court in a recent decision reported in nanak chand v. Chandra kishore agarwale (1969 (1) scwr. 1176) has observed in negativing an argument based upon the hindu adoptions and maintenance act, 1956, That:

"s. 488 provides a summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties."

i should think this passage should set at rest any judicial doubt that may exist on the point.

7. It is not necessary to expatiate on this subject any further except to notice one or two decisions striking a different note. A ruling reported in abdulla khan v. Chandini bi (air. 1956 bhopal 71), From which krishnaswami reddi j. Expressed his dissent, Was cited before me hopefully by the husband's counsel. The head note of that decision runs as follows:

"a muslim woman will have no justification to refuse to live with her husband simply because he has contracted marriage with another wife. This rule would be applicable to only muslim married women and not to hindu married women, Who have been given a right to separate residence and maintenance in case the husband marries again, Under the hindu married women's right to separate residence and maintenance act, 1946. Thus only a hindu married woman can refuse to live with her husband and even then will be entitled to separate residence and maintenance from her husband if he marries again; but a muslim woman has no such right and she must submit to the second marriage, Unless of course the husband neglects or refuses to maintain her and the children through her."

the learned judge somewhat surprisingly has taken the view that

"the whole of the amendment act (i. E. Act 9 of 1949 which brought in the right to the woman to refuse to live with her husband if he has another wife or mistress) was repealed by the repealing and amending act of 1952, (act 48 of 195. 2)"

and proceeds to the conclusion that, If at all, The first wife can claim maintenance even after the refusal to live with the husband only during the brief period between the date when act 9 - of 1949 came into force and act 48 of 1952 was passed i e. Upto 2 81952. That explains the learned judge's observation:

"further, After 2 81952 she will have no justification to refuse to live with her husband simply because he has contracted marriage with another wife."

the scope of a repealing and amending act has been completely missed or rather misunderstood. The amending act has fulfilled its functions by incorporating in the parent statute the new provisions. Thereafter, Its survival on the statute book as an excrescence is quite unnecessary and all that the repealing and amending act does is to sweep off such superfluities from the statute book without impairing in any way the amendment brought about by the amending act. The supreme court in the ruling reported in jethanand betab v. The stale of delhi (air 1960 sc. 89) has lucidly and authoritatively laid down the legal result of a repealing and amending act in the following language:

the general object of a repealing and amending act is stated in halsbury's laws of england, 2nd edition, Vol. 31. At p. 563, Thus:

'a statute law revision act does not alter the law, But simply strikes out certain enactments which have become unnecessary. It invariably contains elaborate provisos. '

in khuda bux v. Manager, Caledonian press, Air. 1954 cal. 484, Chakravarthi c. J., Neatly brings out the purpose and scope of such acts. The learned chief justice says, At p. 486:

'such acts have no legislative effect, But are designed for editorial revision, Being intended only to excise dead matter from the statute book and to reduce its volume. Mostly, They expurgate amending acts, Because having imparted the amendments to the main acts, Those acts have served their purpose and have no further reason for their existence. At times, Inconsistencies are also removed by repealing and amending acts. The only objects of such acts which in england are called statute law revision acts, Is legislative spring - cleaning and they are not intended to make any change in the law. Even so, They are guarded by saving clauses drawn with elaborate care"

it is, Therefore, Clear that the main object of the 1952 act was only to strike out the unnecessary acts and excise dead matter from the statute book in order to lighten the burden of ever increasing spate of legislation and to remove confusion from the public mind. The object of the repealing and amending act of 1952 was only to expurgate the amending act of 1949, Along with similar acts, Which had served its purpose. "

i am unhappy to hold that the learned judge in air. 1956 bhopal 71 has misunderstood the impact of the repeal.

8. The ruling reported in the state v. Mi. Anwarbi (a. I. R. 1953 nagpur 133) is, In a sense, Distinguishable and does not go far enough to support the petitioner. The wife must prove neglect or refusal to maintain before she can get an order for maintenance under s. 488 (1) of the code. At the later stage of enforcement of the order under s. 488 (3) the question of neglect or refusal to maintain cannot be raked up. The only relevant question at the stage is the offer of the husband to maintain his wife on condition of her living with him; and if she refuses to live with him the ground for so doing, In that context, Will be considered just if the husband has another wife or mistress. If a. I. R. 1953 nagpur 133 is read as widening this limited scope of s. 488 (3) into a fresh consideration of the question of neglect or refusal, I express my dissent from that view.

9. The starting point of all this argument that the muslim law actively permits multi - marriages is itself open to serious doubt, As i will presently show moreover, It is distressing for a court to discriminate against muslim women who have for ages been subjected to several social disabilities clamped down on them in the name of personal laws. It is surprising that dubious religious interpretations with values valid in a bygone age are being enforced in the current times by civil courts in our professedly secular state when those values have become mere legal superstitions, If not anathema for the community at large, Out of a false sense of solicitude to a fancied section of society. The indian constitution directs that the state

should endeavour to have a uniform civil code applicable to the entire indian humanity and, Indeed, When motivated by a high public policy, S. 488 of the criminal procedure code has made such a law, It would be improper for an indian court to exclude any section of the community born and bred up on indian earth from the benefits of that law, Importing religious privilege of a somewhat obscurantist order. I have no doubt that it behoves the courts in india to enforce s. 488 (3) of the code of criminal procedure in favour of indian women, Hindu, Muslim or other. I will be failing in my duty if i accede to the argument of the petitioner that muslim women should be denied the advantage of para. 2 of the proviso to s. 483 (3).

10. Shri manhu, Learned counsel, Who has argued with ability and learning, Has satisfied me that those who quote the sacred koran or cite the holy prophet as sanctioning for a male the rather unholy practice of a conjugal quadrangle are sinning against their religion itself. Even during the last century the great jurist ameer ali said:

"the conviction is gradually forcing itself on all sides, In all moslem communities, That polygamy is as much opposed to islamic laws as it is to the general progress of civilised society and true culture. In consequence of this conviction a large and growing section of islamists regard the practice of polygamy as positively unlawful."

(ameer ali. Mohammedan law).

the holy koran in chapter iv, Verse 3 frequently relied upon as supporting polygamy says:

"and if you fear that you cannot do justice to orphans, Marry such women as seem good to you, Two, Or three, Or four; but if you fear that you will not do justice, Then (marry) only one or that which your right hands possess. This is more proper that you may not do justice."

"it is admitted on all hands that this chapter was revealed to guide the muslims under the conditions which followed the battle of uhud"

(the holy qur'an by maulana muhammad ali). In another passage the koran says:

"ye are never able to be fair and just

as between women,

even if it is your ardent desire:

(chapter iv, Verse 129)

it follows from these passages that the koranic injunction has to be understood in the perspective of prevalent unrestricted polygamy and in the context of the battle in which most males perished, Leaving many females or orphans and that the holy prophet himself recognised the difficulty of treating two or more wives with equal justice and, In such a situation, Directed that an individual should have only one wife. In short, The koran enjoined monogamy upon muslims and departure therefrom as an exception. That is why, In the true spirit of the koran, A number of muslim countries have codified the personal law wherein the practice of polygamy has been either totally prohibited or severely restricted. (syria, Tunisia, Morocco, Pakisthan, Iran, The islamic republics of the soviet union are some of the muslim countries to be remembered in this context). A keen perception of the new frontiers of indian law hinted at in art. 44 of the constitution is now necessary on the part of parliament and the judicature.

11. A, Yusuf ali in his commentary on the holy quran has pointed out with reference to the original text, In its proper context, That the prophet first strictly limited the unrestricted number of wives of the "times of ignorance" to a maximum of four, "provided you could treat them with perfect equality inmaterial things as well as in affection and immaterial things. As this condition is most difficult to fulfil, The recommendation was understood to be towards the practice of monogamy. Mr. Justice hidayatullah in his introduction to mulla's principles of mahomedan law, 16th edn. Has approved of the modernisation of the family law of the muslims including the abolition of polygamy. It would thus appear that the cornerstone of the contention absolving muslim husbands from the coils of the second para of the proviso to s. 488 (3) of the crl. P. C. That the muslim law confers the religious privilege of keeping four wives is perhaps a mere misconception. In this view, There is hardly any doubt that neither the reliance on art. 25 of the constitution nor the refuge under the sanctions of the koran can save a muslim husband from meeting his statutory obligations under sec. 488 of the crl. P. C.

12. I would like to observe that even if an action in a civil court by a muslim wife, Who declines to stay with her husband who has married another, May fail, The criminal court is bound to order maintenance in her favour. But the civil court cannot nullify the right of a muslim woman ensured by the criminal procedure code, Provided the remedy is sought through those summary proceedings. The criminal court is bound to respect a decree of the civil court in regard to divorce or the quantum of maintenance; but merely because the civil court will not decree maintenance if the wife refuses to reside with her husband who has other wives, The criminal court cannot stay its hands in the face of the mandate of s. 488 (3) of the code. Irrespective of the decree declining maintenance or declaring that she is not entitled thereto for the reason that she refuses to live with her polygamous husband the criminal court can and must order maintenance.

13. The learned magistrate was right in rejecting the contention of the petitioner in this case.

14. There is a peripheral contention that the magistrate has ordered enforcement of maintenance for a period beyond 12 months in violation of s. 488. Prima facie, There is some force in this plea. I direct notice on the criminal revision petition on this ground only.