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Badruddin v. Aisha Begum
Factual and Procedural Background
Smt. Aisha Begam filed an application for maintenance against her husband Badruddin under Section 488 of the Criminal Procedure Code (Cr. P.C). The facts presented were that the parties cohabited for six years, but when the applicant fell ill, her husband abandoned her and contracted a second marriage. Smt. Aisha Begam claimed maintenance on this ground. The learned Magistrate ruled that she was entitled to live separately and awarded her maintenance at Rs. 60 per month. Badruddin challenged this order by filing a revision application before the Additional Sessions Judge of Kanpur, which was dismissed. Consequently, Badruddin approached the High Court in revision.
Legal Issues Presented
- Whether Section 488, Cr. P.C, which allows a wife to live separately and claim maintenance if her husband contracts another marriage, is applicable to Muslims despite their personal law.
- Whether Section 488, Cr. P.C violates the fundamental right under Article 25 of the Constitution, which guarantees freedom of religion, particularly in the context of Muslim personal law permitting polygamy.
- Whether the Muslim Personal Law (Sharait) Application Act, 1937, overrides or excludes the application of Section 488, Cr. P.C in matters of maintenance for Muslims.
- The appropriate amount of maintenance payable by Badruddin to Smt. Aisha Begam considering his income and obligations.
Arguments of the Parties
Appellant's Arguments (Badruddin)
- The provision in Section 488, Cr. P.C allowing a wife to refuse to live with her husband on grounds of his second marriage violates the fundamental right of Muslims under Article 25 of the Constitution, which protects religious freedom.
- The Muslim Personal Law (Sharait) Application Act, 1937, being a special law, governs maintenance matters for Muslims and thus excludes the applicability of Section 488, Cr. P.C to Muslims.
- Even if Section 488, Cr. P.C applies, the court must consider Muslim personal law principles, which differ from those in the Code, especially regarding the husband's duty to maintain his wife.
- The maintenance amount fixed is excessive considering Badruddin’s actual income.
Respondent's Arguments (Smt. Aisha Begam)
The opinion does not contain a detailed account of the respondent’s arguments beyond the factual assertions and the Magistrate’s findings.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt | Interpretation of Article 25 of the Constitution protecting freedom to practise religion, including acts done in pursuance of religion. | Used to assess whether polygamy is a protected religious practice under Article 25; court concluded it is not obligatory and hence not protected. |
Court's Reasoning and Analysis
The Court examined the applicability of Section 488, Cr. P.C, which permits a wife to live separately and claim maintenance if the husband contracts another marriage. The Court considered whether this provision violates Article 25 of the Constitution, which guarantees freedom of religion. It was held that while Muslim personal law permits up to four wives, having more than one wife is not an obligatory religious practice protected under Article 25. Therefore, Section 488 does not infringe on religious freedom.
The Court then analyzed the Muslim Personal Law (Sharait) Application Act, 1937, which states that Muslim personal law governs questions of maintenance. However, the Court found no indication that this Act intended to amend or exclude the application of the Criminal Procedure Code, including Section 488. The Court distinguished "special laws" under Section 1(2) of the Cr. P.C as those prescribing special criminal procedure, which the 1937 Act does not.
Consequently, Section 488, Cr. P.C applies to Muslims, and the criminal court must follow its summary procedure in maintenance cases, even if the personal law differs. The Court noted that civil courts may have different views, but the criminal court’s order under Section 488 stands unless modified by a competent civil court.
Regarding the amount of maintenance, the Court evaluated conflicting evidence about Badruddin’s income, estimating it at Rs. 300 per month. Considering that Badruddin also maintains a second wife, the Magistrate’s allowance of Rs. 60 per month to Smt. Aisha Begam was reasonable and not excessive.
Holding and Implications
The Court dismissed the revision application filed by Badruddin, upheld the Magistrate’s order dated 10-9-1954, and vacated the stay order dated 29-6-1955.
The direct consequence is that Smt. Aisha Begam is entitled to live separately and receive maintenance at Rs. 60 per month from her husband despite his second marriage. No broader precedent was established beyond affirming the application of Section 488, Cr. P.C to Muslims notwithstanding their personal law and constitutional arguments.
Oak, J.:— This revision application arises out of a proceeding under Sec. 488, Cr. P.C Smt. Aisha Begam filed an application for maintenance against her husband Badruddin. Her case was that she and her husband lived together for six years. When the applicant fell ill, her husband abandoned her, and contracted a second marriage. Smt. Aisha Begam, therefore, claimed maintenance from her husband. Badruddin offered to keep his wife in his house, and declined to pay her maintenance. The learned Magistrate held that Smt. Aisha Begam was entitled to live separately from her husband, and ought to get maintenance from her husband. The court, therefore, ordered, Badruddin to pay Smt. Aisha Begum maintenance at the rate of Rs. 60/- per month. A revision application filed by Badruddin was dismissed by the learned Additional Sessions Judge of Kanpur. Badruddin has, therefore, come to this Court in revision Smt. Aisha Begam was Badruddin's first wife. He conceded that he has contracted another marriage. The learned Magistrate held that, in view of Badruddin's second marriage, the first wife is entitled to live separately from her husband. The Court relied upon the following clause appearing in sub-sec. (3) of Sec. 488, Cr. P.C:—
“If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him.”
2. If this provision is effective, Smt. Aisha Begam is obviously entitled to live separately from her husband. But Mr. Sadiq Ali appearing for Badruddin attacked that part of the provision of Sec. 488, Cr. P.C on a variety of grounds. He urged that provision violates the fundamental right of Musalmans. It was urged that the provision violates Art. 25 of the Constitution. Clause (1) of Art. 25 is in these terms:—
“Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” Mr. Sadiq Ali relied upon. “The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt.1 In that case their Lordships of the Supreme Court held that, the guarantee under the Constitution of India not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion, and this is made clear by the use of the expression ‘practise religion’ in Art. 25.
3. Mr. Sadiq Ali's argument is that, it is a fundamental right of a Muslim to have four wives. 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. No authority was cited to show that it is obligatory upon a Musalman to have more than one wife. 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.
4. Secondly, Mr. Sadiq Ali contended that, the provision under consideration is in contravention of Act XXVI of 1937 (The Muslim Personal Law (Sharait) Application Act, 1937). Sec. 2 of that Act states:—
“Notwithstanding any custom or usage to the contrary, in all questions ….. including …… maintenance ….. the rule of decision in cases where the parties are Muslims shall be in Muslim Personal Law.”
5. This section clearly lays down that, in matters of maintenance Muslims shall be governed by Muslim Personal Law.
6. In Mulla's Mohammadan Law, thirteenth edition, the husband's duty to maintain his wife has been discussed in Sec. 277. The husband is bound to maintain his wife so long as she is faithful to him and obeys his reasonable orders. But he is not bound to maintain a wife who refuses herself to him, or is otherwise disobedient, unless the refusal or disobedience is justified by non-payment of prompt dower. The law of maintenance laid down in this section is somewhat different from the law of maintenance laid down in Sec. 488, Cr. P.C I, therefore, agree with Mr. Sadiq Ali, there is some conflict between Sec. 488, Cr. P.C and the personal law of Muslims as regards maintenance. The question is whether Sec. 488, Cr. P.C ought to be enforced in spite of that conflict.
7. Sec. 6 of Act No. XXVI of 1937 contains a list of Acts and Regulations, which have been repealed by that Act. Sec. 6 of that Act contains no reference to the Criminal Procedure Code. There is nothing in Act No. XXVI of 1937 to suggest that, there was any intention to amend the Code of, Criminal Procedure in its application to Muslims.
8. Sub-sec. (2) of Sec. 1, Cr. P.C describes the extent of the Code:—
“It extends to the whole of India …. But, in the absence of any specific provision to the contrary, nothing herein contained shall affect any special or local law now in force, or any special jurisdiction or power conferred, or any special form of procedure prescribed by any other law for the time being in force.”
9. It will be seen that the Code applies to the whole of India irrespective of castes or communities. Obviously, it applies to Muslims also. But Mr. Sadiq Ali contended that, Sec. 1(2), Cr. P.C is subject to any special or local law now in force. It was urged that, Act No. XXVI of 1937 is a special law as contemplated by Sec. 1(2), Cr. P.C I do not agree. Special Law mentioned in sub-sec. (2) of Sec. 1, Cr. P.C is some special law laying down any special rules of Criminal procedure for a governing certain special cases. Act No. XXVI of 1937 does not lay down any special rules of criminal procedure. Act No. XXVI of 1937 merely lays down certain rules as regards applicability of Muslim Personal Law to Muslims. I am, therefore, of the opinion that inspite of the passing of Act No. XXVI of 1937. Sec. 488, Cr. P.C applies to Muslims also.
10. Mr. Sadiq Ali further contended that, even if Sec. 488, Cr. P.C applies to Muslims, the Court is bound to consider the personal law applicable to Muslims. It is true that even the Criminal Court has to take into consideration the personal law applicable to the parties before the Court. It has, however, to be noted that, Sec. 488, Cr. P.C lays down a summary procedure for giving maintenance to wives and children. For such a summary proceeding, the summary procedure prescribed by Sec. 488, Cr. P.C has to be followed. Sec. 489, Cr. P.C contemplates that the decision of a competent Civil Court may be different from an order passed by a criminal court. In such a case a criminal court may have to modify its order in the light of a decision by a competent civil court. But in the absence of any such decision by a Civil Court, the criminal court has to follow the procedure prescribed by Sec. 488, Cr. P.C One of the provisions is that if a husband has contracted marriage with another wife, it shall be considered to be a just ground for his first wife's refusal to live with him. The civil court may not accept the principle laid down in Sec. 488, Cr. P.C But a criminal court dealing with an application for maintenance is bound to follow that provision contained in Sec. 488, Cr. P.C I, therefore, agree with the learned Magistrate that, Smt. Aisha Begam was entitled to live separately from her husband, and is entitled to get maintenance.
11. Lastly, I have to consider the question of the amount of maintenance. Badruddin keeps a workshop at the Mall, Kanpur. He said that his income from the workshop is Rs. 125/- per month. On the other side there is evidence to the effect that, Badruddin's income is about Rs. 400/- or Rs. 500/- per month. In view of these figures quoted by the parties, and the locality of the shop, it was open to the learned Magistrate to come to the conclusion that Badruddin's monthly income is about Rs. 300/-.
12. Having arrived at the conclusion that Badruddin's monthly income is Rs. 300/-, the learned Magistrate proceeded to fix Smt. Aisha Begam's monthly allowance at the figure of Rs. 60/-. In reaching this conclusion the learned Magistrate took into consideration that Badruddin has to maintain a second wife also. It cannot be said that the allowance granted to Smt. Aisha Begam is excessive. The revision application is dismissed. The stay order dated 29-6-1955 is vacated. The learned Magistrate's order dated 10-9-1954 will stand.
13. Application dismissed.
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