Sirajmohmedkhan Janmohamadkhan Vs.
Hafizunnisa Yasinkhan & ANR [1981] INSC 163 (14 September 1981)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
SEN, A.P. (J)
CITATION: 1981 AIR 1972 1982 SCR (1) 695 1981
SCC (4) 250 1981 SCALE (3)1400
ACT:
Code of Criminal Procedure, 1973-Section
(3)-Scope of- Husband's impotence to have sexual relations with his wife-
Whether a just ground for grant of maintenance to the wife.
HEADNOTE:
The respondent was the appellant's wife. In
her petition under section 125(3) Criminal Procedure Code, 1973 for grant of
maintenance, the Metropolitan Magistrate, upheld her allegation that the
appellant was impotent and was incapable of having sexual relations with his
wife. But the Magistrate refused to grant maintenance to her on the ground that
the husband's impotence was not a just cause for her refusal to live with the
husband.
Holding that impotence of the husband was a
just ground for the wife to refuse to live with the husband, the High Court
granted her maintenance.
In appeal to this Court while the husband
contended that impotence was not a good ground for the wife's refusal to live
with him, the wife contended that the second proviso to section 125(3) 1973
Code enabled the wife to refuse to live with the husband if there was a suit
ground for doing so and in this case the husband's impotence was a just ground
for such refusal.
Dismissing the appeal,
HELD: Proved impotence of the husband and his
inability to discharge his marital obligations amount to both legal and mental
cruelty make it a just ground for the wife to refuse to live with the husband.
The wife would be entitled to maintenance from him according to his means.
[710G-711A] The second proviso to section 125(3) of the 1973 Code was a proviso
to section 488 of the 1898 Code which provides that it is incumbent on the
Magistrate to consider the grounds of refusal and to make an order of
maintenance, if he is satisfied that there is a just ground for the wife to
refuse to live with the husband. Decision of High Courts that section 488 of
the 1898 Code had nothing to do with the ordinary conjugal rights were directly
opposed. to the very object of the section. [703 D-F] Bundoo v. Smt. Mahrul
[1978] Cr. L, J. 1661, Emperor v. Daulat Raibhan & Anr., A.I.R. 1948 Nagpur
69, Arunachala v. Anandayammal, A.I.R. 1933 Mad. 668, Jaggavarapu Basawamma v. Japgavarapu
Seeta Reddi, A.l.R, 1922 Mad. 209 & Vedayudhan v. Sukmari [1971] KLT 443
overruled.
696 In the Matter of the Petition of Din
Muhammad ILR [1883] 5 Allahabad 226 approved.
By an amendment made in 1949 the scope and
ambit of the term "just ground" had been widened by adding a second
proviso to section 488 of the 1898 Code. The object of introducing this
provision was to widen the scope and ambit of the term "just ground".
This provision is not exhaustive but purely illustrative and self-explanatory
and takes within its fold not only the two instances mentioned Therein but
other circumstances also of a like nature which may be regarded by the
Magistrate as a just ground by the wife for refusing to live with her husband.
In the present Code this provision has been incorporated as explanation to the
second proviso to section 125(3). [703 G-704 B] A perusal of this provision
shows that it was meant to give a clear instance of circumstances which may be
treated as a just ground for refusal of the wife to live with her husband. By
virtue of this provision, the proviso takes within its sweep all other
circumstances similar to the contingencies contemplated in the Amending provision
as also other instances of physical, mental or legal cruelty not excluding the
impotence of the husband. These circumstances clearly show that the grounds on
which the wife refuses to live with her husband should be just and reasonable
as contemplated by the proviso. Similarly, where the wife has a reasonable
apprehension arising from the conduct of the husband that she is likely to be
physically harmed due to persistent demands of dowry from her husband's parents
or relations, such an apprehension also would be manifestly a reasonable
justification for the wife's refusal lo live with her husband.
[704 D F] Where a husband had contracted a
married with another woman or kept a mistress, it was considered to be a just
ground for the wife's refusal to live with the husband Similarly where a wife
refuses to live with an impotent husband who is unable to discharge his marital
obligations that would be a just ground. Moreover when impotence under the
civil law is a good ground for granting divorce or for refusing restitution of
conjugal rights there is no reason to hold that it would not be a just ground
under section 125. The concept of cruelty remains the same whether it is a
civil case or a criminal case or a case under similar Acts.
The general principles governing acts
constituting cruelty- legal or mental ill-treatment or indifference cannot vary
from case to case, though the facts may be different. [704 H-705 C, 709 C] It
is well recognized that sex is the foundation of marriage and without a vigorous
and harmonious sexual activity it would be impossible for any marriage to
continue for long. Abstinence from intercourse effecting ill health of the wife
can be held to be cruelty. [709 E, 710 F] Rita Nijhawan v. Balkishan Nijhawan,
AIR 1973 Delhi 200, Bhikaji Maneckji v. Maneckji Mancherji, 5 Cr. L.J. 334, Bai
Appibai v. Khimji Cooverji, AIR 1936 Bom. 138, Gunni v.
Babu Lal, AIR 1952 Madnya Bharat 131, Biro v.
Behari Lal, AIR 1958 J & K. 47, Smt. Panchoo v. Ram Prasad, AIR 1956 All.
41 and Dr.Srikant Rangacharya Adya. v. Smt. Anuradha, AIR 1980 Karnataka 8,
approved.
Sheldon v. Sheldon [1966] 2 All. E.R. 257
referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 602 of 1981.
From the judgment and order dated 27th
August, 1980 of the Gujarat High Court at Ahmedabad in Cr. Revision Application
No. 282 of 1979.
N.N. Keshwan and R.N. Keshwani for the
Appellant.
Vimal Dave and Miss Kailash Mehta for
Respondent No. 1.
S C. Patel and R.N. Poddar for Respondent No.
2 The Judgment of the Court has delivered by FAZAL ALI, J. This appeal by
special leave is directed against a judgment dated August 27, 1980 of the
Gujarat High Court accepting the revision application of the Respondent and
setting aside the order of the Metropolitan Magistrate, Ahmedabad. The facts of
the case lie within a very narrow compass, which may be detailed thus.
The respondent who is the wife of the
appellant filed an application before the Magistrate under s. 125 of the Code
of Criminal Procedure, 1973 (hereinafter referred to as the 'Code of 1973') for
grant of maintenance by the appellant on the ground that her husband-appellant
was guilty of wilful neglect and was unable to fulfill his primary
responsibility of discharging his marital obligations. The parties were married
on May 27, 1978 according to Sunni Muslim rites. After the marriage the
respondent lived with her husband up to July 1978. The respondent alleged that
during this period she found her husband to be physically incapable of carrying
on sexual relationship and that her husband frankly told her that he was
impotent. The respondent further alleged that she was maltreated and ultimately
driven out of the house by her husband on July 11, 1978. On November 17, 1978
the appellant sent a registered notice (Ext. 5) to the respondent informing her
that he had no physical disability and was prepared to keep her with him and
discharge his marital obligations. On October 28, 1978 the respondent filed an
application before the Magistrate for awarding maintenance against the
appellant.
So far as the facts found are concerned,
there is no dispute and the case will have to be decided on the point of law
that arises 698 on the contentions raised by the parties before the courts
below as also in this Court. Both the High Court and the Metropolitan
Magistrate clearly found that the appellant was physically incapable of having
sexual relations with the respondent. In other words, the concurrent finding of
fact by the courts below is that the appellant was impotent and was, therefore,
unable to discharge his marital obligations.
The respondent, however, refused to live with
her husband on the ground that as he was impotent and unable to discharge his
marital obligations, she could not persuade herself to live with him and thus
inflict on herself a life of perpetual torture. The Metropolitan Magistrate
relying on a decision of the Allahabad High Court in Bundoo v. Smt. Mahrul
found that the mere ground that the husband was impotent was not a just cause
for the refusal of the wife to live with her husband and accordingly dismissed
the application filed by the respondent for maintenance.
Thereafter, the matter was taken up in
revision before the High Court which differed from the view taken by the
Magistrate and held that the husband having been found to be impotent, this
should be a just ground for the wife to refuse to live with the husband and
hence she was entitled to the grant of maintenance. The High Court after having
come to the aforesaid conclusion further held that having regard to the means
of the husband he was in a position to pay Rs. 150/- per month by way of
maintenance to the respondent. Hence, this appeal by special leave by the
appellant-husband Mr. Keshwani, learned counsel for the appellant, vehemently
contended before us that it is now well settled by a long course of decisions
of various High Courts that impotency is no good ground or reason for the wife
to refuse to live with her husband and hence the wife is not entitled to
maintenance if she refused to live with the husband merely because her husband
was impotent. Mr. Keshwani cited a number of decisions in support of his
contentions, on the other hand, Mr. Dave, appearing for the respondent,
submitted that the various authorities of the High Court’s seems to have overlooked
the legal effect of the second proviso to sub-section (3) of section 125 of the
Code of 1973 under which a wife could refuse to live with her husband if there
was a just ground for doing so. The said proviso may be extracted thus:-
"Provided further that if such person offers to maintain his wife on
condition of her living with him, and she 699 refused to live with him, such
Magistrate may consider any grounds of refusal stated by her, and may make an
order under this section notwithstanding such offer, if he is satisfied that
there is just ground for so doing." We are of the opinion that if the
husband was impotent and unable to discharge his marital obligations, how could
he fulfill the main object of marriage, more particularly, under the Mahomedan
law where marriage is a sacrosanct contract and not a purely religious ceremony
as in the case of Hindu law. This would certainly be a very just and reasonable
ground on the part of the wife for refusing to live with her husband, as also
in cases under the Hindu law or other Laws. In Nanak Chand v. Shri Chandra
Kishore Agarwala and Ors. this Court held thus:
"Section 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." After having heard
counsel for the parties we are clearly of the opinion that the contention of
the counsel' for the respondent is sound and must prevail. It is true that
there are several decisions of the High Court’s taking a contrary view but they
seem to have proceeded on a totally wrong assumption and we are constrained to
observe that in taking such a narrow view they have followed a most outmoded
and antiquated approach. The learned Magistrate mainly relied on a decision of
the Allahabad High Court in Bundoo's case (supra). It is true that Bakshi, J.
in that case seems to have been influenced more by the concept of neglect
rather than by the reasonableness of the ground on which the refusal of the
wife was based. While dwelling on this aspect of the matter, the learned Judge
observed as follows:- "Assuming now for the purpose of argument that
Bundoo was physically incapable of satisfying the sexual desire of his wife, it
cannot be said this inability amounted intentionally to disregarding,
slighting, disrespecting or carelessly and heedlessly treating his wife. In
this view of the matter, I am of the opinion that the element of neglect as
envisaged under Section 488 Cr. P.C., old and under Section 125 Cr. P.C. new,
has not been established. " 700 The attention of the learned Judge does
not seem to have been drawn to the provisions of second proviso nor has the
Judge come to any clear finding that the refusal of the wife could not fall
within the ambit of "just ground" as contemplated by the aforesaid
proviso. Secondly, the learned Judge mainly relied on an earlier decision of
Hidayatullah, J. (as he then was) in Emperor v. Daulat Raibhan and Anr. in
which it was held that a wife was not entitled to live apart from her husband
and claim maintenance on the ground that her husband was impotent and unable to
perform his marital obligations. In fact, a number of decisions of the High
Courts which were relied upon by the counsel for the appellant follow the
decision of the Nagpur High Court as also the previous decisions of other High
Courts replied upon by Hidayatullah, J. in the Nagpur case. We shall consider
the legal effect of this decision a little later. So far as the decision of the
Allahabad High Court, in which the Magistrate had relied, is concerned, the
observations of Bakshi, J. were purely obiter. It would appear that there was a
clear finding of fact by the Magistrate. which had been accepted by the High
Court, that the wife failed to prove by convincing evidence that her husband
was impotent. In view of this finding of fact, the question of law posed and
decided by Bakshi, J. did not fall for decision at all because if the wife
failed to prove that her husband was impotent, the question of her refusal to
live with him for a just ground did not arise at all. While adverting to this
finding of fact, Bakshi, J. in the aforesaid case observed as follows:- "I
find from the perusal of judgment of the Magistrate that he has taken into
consideration the entire evidence on the record led in connection with this
question and he was of the opinion that Shrimati Mahrul Nisa failed to prove by
convincing evidence that Bundoo was impotent." (Emphasis supplied) In the
circumstances, we are not in a position to accept the observations of Bakshi J.
which are in the nature of obiter dictum, in support of the argument of Mr. Keshwani.
This brings us now to the consideration of
the authorities of other High Courts which seem to have taken' the view that
impotency is no ground for grant of maintenance to the wife. We would first
deal with the decision of Hidayatullah, J. in Daulat Raibhan's case 701
(supra). In the first place, the learned Judge thought that the point A raised
before him was one of first impression and his decision was, therefore, greatly
influenced by the fact that there was no direct decision on the point taking a
contrary view. In this connection, the learned Judge observed as follows:-
"No authority has been cited before me in support of the case of the wife
that she is entitled to live separate from her husband on account of his
impotence." Subsequently, the learned Judge mainly relied on the following
observations made in Arunachala Anandayammal:
"I cannot see that s. 488, Criminal P.C.
has anything to do with ordinary conjugal rights; it deals with maintenance
only..." The learned Judge seems to have been under the impression that so
far as the provisions of s. 488 of the Code of 1898 were concerned they had no
bearing on conjugal relations between the husband and the wife. With great respect
to the learned Judge we are unable to agree with this process of reasoning. In
fact, the fundamental basis of the ground of maintenance under s. 488 is
conjugal relationship and once conjugal relationship is divorced from the ambit
of this special provision, then the very purpose and setting of the statutory
provision vanishes. In the matter of the Petition of Din Mohammed, Mahmood, J.
very pithily and pointedly observed as follows:
"The whole of Chapter XLI, Criminal
Procedure Code, so far as it relates to the maintenance of wives, contemplates
the existence of the conjugal relations as a condition precedent to an order of
maintenance and, on general Principles, it follows that as soon as the conjugal
relation ceases, the order of maintenance must also cease to have any
enforceable effect." (Emphasis supplied) We find ourselves in complete
agreement with the observations made by the eminent Jurist Mahmood, J. which
lays down the correct law on the subject. Thus, one of the fundamental premises
on which rested the decision of Hidayatullah, J. appears to us to be 702
clearly wrong and directly opposed to the very object of the section (which at
the relevant time was s. 488). In Arunchala's case (supra) which was relied
upon by Hidayatullah, J., Burn J. Observed thus:
"I cannot see that S. 488, Criminal P.C.
has anything to do with ordinary conjugal rights; it deals with
"maintenance" only and I see no reason why maintenance should be
supposed to include anything more than appropriate food, clothing and lodging."
It would-be seen that here also the learned Judge proceeds on a legally wrong
premise, viz., that s. 481 had nothing to do with ordinary conjugal rights.
Moreover, the Madras decision as also the earlier decision seem to have
followed the outmoded and antiquated view that the object of s. 488 was to
provide an effective and summary remedy to provide for appropriate food,
clothing and lodging for a wife. This concept has now become completely out
dated and absolutely archaic. After the International Year of Women when all
the important countries of the world are trying to give the fair sex their
rightful place in society and are working for the complete emancipation of
women by breaking the old shackles and bondage in which they were involved, it is
difficult to accept a contention that the salutary provisions of the Code are
merely meant to provide a wife merely with food, clothing and lodging as if she
is only a chattel and has to depend on the sweet will and mercy of the husband.
The same line of reasoning was adopted in an earlier decision of the Madras
High Court in Jaggavarapu Basawama v. Jaggavarapu Seeta Reddi. Here also, the
Judge was of the opinion that food and clothing was sufficient for the
maintenance of the wife and even if the husband refused to cohabit that would
not provide any cause of action to the wife to claim separate maintenance. In a
recent decision in Velayudhan v. Sukmari a Single Judge observed as follows:
"Learned magistrate seems to have
concentrated solely on the last-mentioned ground namely, failure of the husband
to perform his marital duties, and has held that it is a sufficient ground
entitling the wife to live away from the husband, and claim separate
maintenance. But I do not think, in the face of authorities cited before me
that this 703 is a sufficient ground justifying the award of separate
maintenance to the wife. It was observed by Kumaraswami Sastri, J. in Basawamma
v. Seetareddi (AIR 1922 Mad. 209) that there is nothing in the Code which
compels the criminal court to award separate maintenance to a wife whom the
husband agrees to protect and maintain in a manner suitable to her position in
life; refusal to cohabit is no ground.
Here also, the Judge while noticing that the
ground taken by the wife was that the husband has failed to perform his marital
duties, found himself bound by the decisions of the Madras High Court in
Jaggavarapu Basawamma's case (supra). Thus even in this decision though given
in 1971 when the entire horizon of the position and status of women had
changed, it is rather unfortunate that the Judge chose to stick to the old
view.
There is however a very formidable
circumstance which seems to have been completely overlooked by later decisions
while following the previous decisions of the Nagpur or the Madras High Courts.
Although the second proviso to sub- section (3) of s. 125 of the Code of 1973,
which was also a proviso to the old s. 488, clearly provided that it is
incumbent on the Magistrate to consider the grounds of refusal and to make an
order of maintenance if he was satisfied that there was just ground for
refusing to live with the husband, yet this salutary provision which was
introduced with the clear object of arming the wife with a cause of action for
refusing to live with the husband as the one which we have in the present case,
no legal effect to the legislative will and intent appears to have been given
by the aforesaid decisions.
Another important event which happened in
1949 also seems to have been completely ignored by the recent decisions while
following the previous decisions of the High Courts. It would appear that by
the Code of Criminal Procedure (Amendment) Act No. 9 of 1949 an additional
provision was added after the proviso which may be extracted thus:
"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." The object of introducing this
provision was clearly to widen the scope and ambit of the term 'just ground'
mentioned in the 704 proviso. This provision is not exhaustive but purely
illustrative and self-explanatory and takes within its fold not only the two
instances mentioned therein but other circumstances also of a like or similar
nature which may be regarded by the Magistrate as a just ground by the wife for
refusing to live with her husband. Under the Code of 1973, this provision has
been incorporated as Explanation to the second proviso to sub-section (3) of s.
125.
The decisions of the High Courts given prior
to the Amendment of 1949 would no longer be good law after the introduction of
the Amendment which gives, as it were, a completely new complexion to the
intendment and colour of the second proviso to s. 488 (now Explanation to the
second proviso to sub-section (3) of s. 125) and widens its horizon. It is,
therefore, needless to refer to these decisions or to subsequent decisions
which have followed the previous cases.
A clear perusal of this provision manifestly
shows that it was meant to give a clear instance of circumstances which may be
treated as a just ground for refusal of the wife to live with her husband. As
already indicated, by virtue of this provision, the proviso takes within its
sweep all other circumstances similar to the contingencies contemplated in the
Amending provision as also other instances of physical, mental or legal cruelty
not excluding the impotence of the husband. These, circumstances, therefore,
clearly show that the grounds on which the wife refuses to live with her
husband should be just and reasonable as contemplated by the proviso.
Similarly, where the wife has a reasonable apprehension arising from the
conduct of the husband that she is likely to be physically harmed due to
persistent demands of dowry from her husband's parents or relations, such an
apprehension also would be manifestly a reasonable justification for the wife's
refusal to live with her husband. Instances of this nature may be multiplied
but we have mentioned some of the circumstances to show the real scope and
ambit of the proviso and the Amending provision which is, as already indicated,
by no means exhaustive.
In other words, where a husband contracts a
marriage with another woman or keeps a mistress this would be deemed to be a
just ground within the meaning of the second proviso so as to make the refusal
of the wife to live with her husband fully justified and entitled to
maintenance. If this is so, can it be said by any stretch of imagination that
where a wife refuses to live with her husband if 705 he is impotent and unable
to discharge his marital obligation, this would not be a just ground for
refusing to live with her husband when it seems to us that the ground of
impotence which had been held by a number of authorities under the civil law to
be a good ground not only for restitution of conjugal rights but also for
divorce. Indeed, if this could be a ground for divorce or for an action for
restitution of conjugal rights, could it be said with any show of force that it
would not be a just ground for the wife to refuse to live with her husband. The
matter deserves serious attention from the point of view of the wife. Here is a
wife who is forced or compelled to live a life of celibacy while staying with
her husband who is unable to have sexual relationship with her. Such a life is
one of the perpetual torture which is not only mentally or psychologically
injurious but even from the medical point of view is detrimental to the health
of the woman. Surely, the concept of mental cruelty cannot be different in a
civil case and in a criminal case when the attributes of such a cruelty are the
same.
In Rita Nijhawan v. Balkrshaan Nijhawan
(Sachar, J.) while dealing with a case of annulment of marriage under the Hindu
Marriage Act on the ground of impotency very poignantly and pithily observed as
follows:
"Thus the law is well settled that if
either of the parties to a marriage being a healthy physical capacity refuses
to have sexual intercourse the same would amount to cruelty entitling the other
party to a decree. In our opinion it would not make any difference in law
whether denial of sexual intercourse is the 'result of sexual weakness of the
respondent disabling him from having a sexual union with the appellant, or it
is because of any wilful refusal by the respondent.
... ... ... ...
Marriage without sex is an anathema. Sex is
the foundation of marriage and without a vigorous and harmonious sexual
activity it would be impossible for any marriage to continue for long. It
cannot be denied that the sexual activity in marriage has an extremely
favourable influence on a women's mind and body. The result being that if she
does not get proper sexual satisfaction, it will lead to depression and
frustration." 706 We find ourselves in complete agreement with the very practical
and pragmatic view that the learned Judge has taken and the principles
adumbrated by the Judge apply fully to proceedings for maintenances because as
we have said the concept of cruelty is the same whether it is a criminal case
or a civil case.
As far back as 1906, the Bombay High Court
came out with the concept of cruelty which could be considered for exercising
jurisdiction under s. 488 of the Code of 1898. In Bhikaji Maneekji v. Maneekji
Mancherji a Division Bench of the Bombay High Court observed as follows:
"Where it is proved that a husband has
not refused or neglected to maintain his wife, a criminal Court, acting under
the section, has no jurisdiction to make an order upon the husband for her
maintenance on the ground that the husband has been guilty of cruelty to her.
But that is a very different thing from holding that no evidence of cruelty can
be admitted in a proceeding under the section to prove, not indeed cruelty as a
ground for separate maintenance, but the conduct and acts of the husband from
which the Court may draw the inference of neglect or refusal to maintain the
wife. A neglect or refusal by the husband to maintain his wife may be by words
or by conduct. It may be express or implied. If there is evidence of cruelty on
the part of the husband towards the wife from which, with other evidence as to
surrounding circumstances, the Court can presume neglect or refusal, we do not
see why it should be excluded. There is nothing in s. 488 to warrant its
exclusion, and such has been the practice of the Court. But the section has
been altered and now the Court can pass an order for maintenance where neglect
or refusal is proved, even if the husband is willing to maintain the wife,
provided the Court finds that there are "just grounds" passing such
an order. This alteration gives a wider discretion to the Court, which means
that in passing such an order it is legitimate for it to take into account the
relations between the husband and the wife, and the husband's conduct towards
her." This decision, given as far back as 1907, while construing the
proviso appears to be both prophetic and pragmatic in its approach 707 and it
is rather unfortunate that subsequent decisions have not noticed this important
principle of law decided by the Bombay High Court. We fully endorse this
decision as laying down the correct law on the subject and as giving the
correct interpretation of the proviso to s. 488 particularly the concept of the
words 'just ground'.
Another decision which had touched the
question of 'cruelty' is the case of Bai Appibai v. Khimji Cooverji where the
following observations were made:
"If, however, the husband by reason of
his misconduct, or cruelty in the sense in which that term is used by the
English Matrimonial Courts, or by his refusal to maintain her, or for any other
justifying cause, makes it compulsory or necessary for her to live apart from
him, he must be deemed to have deserted her, and she will be entitled to
separate maintenance and residence." In Gunni v. Babu Lal Dixit, J.
sounded a very pragmatic note on this aspect of the matter and in this
connection pointing out the scope of the Amendment of 1949 observed thus:
"There is nothing in the Criminal
Procedure (Amendment) Act, 1949 to show that it would not be a just ground for
the wife's refusal to live with her husband if the husband has contracted
marriage with another wife or taken a mistress before the amendment made in s.
488. The amendment is clearly intended to put an end to an unsatisfactory state
of law, utterly inconsistent with the progressive ideas of the status and
emancipation of women, in which women were subjected to a mental cruelty of
living with a husband who had taken a second wife or a mistress on the pain of
being deprived to any maintenance if they chose to live separately from such a
husband. If my view to hold that the amendment is intended to afford a just
ground for the wife's refusal to live with her husband only in those cases
where he has after the amendment, taken a second wife or a mistress is to
defeat in a large measure the very object of the amendment." 708 We find
ourselves in complete agreement with the observations made by the learned
Judge. In Mst. Biro v. Behari Lal, a decision to which one of us (Fazal Ali, J.
as he then was a party, where the importance of the Amendment of 1949 also
touched, the following observations were made:
"Before the amendment, the fact of the
husband's marrying a second wife or keeping a mistress was not by some High
Courts considered a just ground for the first wife's refusal to live with him,
although it was taken into account in considering whether the husband's offer
to maintain his first wife was really 'bona fide' or not.
The amendment is clearly intended to put an
end to an unsatisfactory state of law utterly inconsistent with the progressive
ideas of the status and emancipation of women, in which women were subjected to
a mental cruelty of living with a husband who had taken a second wife or a
mistress on the pain of being deprived of any maintenance if they chose to live
separately from such a husband." In Sm. Pancho v. Ram Prasad, Roy, J.
while dealing with the Hindu Married Women's Right to Separate Residence and
Maintenance Act (19 of 1946) expounded the concept of 'legal cruelty' and
observed thus:
"In advancement of a remedial statute,
everything is to be done that can be done consistently with a proper
construction of it even though it may be necessary to extend enacting words
beyond their natural import and effect.
... ... ... ...
Conception of legal cruelty undergoes changes
according to the changes and advance of social concept and standards of living.
With the advancement our social conceptions, this feature has obtained
legislative recognition that a second marriage is a sufficient ground for
separate residence and separate maintenance. Moreover, to establish legal
cruelty, it is not necessary that physical violence should be used.
Continuous ill-treatment, cessation of
marital intercourse, studied neglect, indifference on the part of the 709
husband, and an assertion on the part of the husband that the wife is unchaste
are all factors which may undermine the health of a wife.
The learned Judge has put his finger on the
correct aspect and object of mental cruelty. The fact that this case did not
arise out of the proceedings under s. 125 makes no difference because we have
already observed that the concept of cruelty remains the same whether it is a
civil case or a criminal case or a case under any other similar Act. The
general principles governing acts constituting cruelty-legal or mental
ill-treatment or indifference cannot vary from case to case though the facts
may be different.
Similarly, while dealing with a case under
the Hindu Marriage Act, 1955, a Division Bench of the Karnataka High Court in
Dr, Srikant Rangacharya Adya v. Smt. Anuradha dwelling on the aspect of
impotency and its impact on the wife observed as follows:- "In these days
it would be an unthinkable proposition to suggest that the wife is not an
active participant in the sexual life and therefore, the sexual pleasure to the
wife is of no consequence and therefore cannot amount to cruelty. Marriage
without sex is an anathema. Sex is the foundation of marriage and without a
vigorous and harmonious sexual activity it would be impossible for any marriage
to continue for long. It cannot be denied that the sexual activity in marriage
has an extremely favourable influence on a woman's mind and body. The result
being that if she does not get proper sexual satisfaction it will lead to
depression and frustration. It has been said that the sexual relations when
happy and harmonious vivifies woman's brain, develops her character and trebles
her vitality. It must be recognised that nothing is more fatal to marriage than
disappointments in sexual intercourse." We find ourselves in entire
agreement with the observations made by the learned Judges of the Karnataka
High Court which seems to be the correct position in law.
Even the learned Judge who had delivered the
judgment in the instant case had very rightly pointed out as follows:- 710
"If the maintenance of a wife is supposed to include only food, shelter
and clothing having regard to the conjugal rights and if the just cause on
which wife can refuse to stay with the husband and yet claim maintenance, can
have reference only to the comfort and safe of the wife then it might reduce
the wife to the status of a domesticated animal.
In the context of the changing status of
woman in society such a proposition would seem outdated and obsolete..... In
other words, the Courts cannot compel the wife to stay with husband on the
ground that the husband though he is forcing her in a situation where her
physical and mental well being might be adversely affected, as there is no
intention on the part of the husband to inflict that cruelty, she should suffer
that predicament without demur and be satisfied with a grab to bite and some
rags to clothe her and a roof over her head." We fully endorse the
observations made above. Apart from the various decisions referred to above,
there is a direct English decision on the point. In Sheldon v. Sheldon, Lord
Denning observed as follows:
"I rest my judgment on the ground that
he has persistently, without the least excuse, refused her sexual inter course
for six years It has broken down her health. I do not think that she was called
on to endure it any longer.
It has been said that, if abstinence from
intercourse causing ill-health can be held to be cruelty, so should desertion
simpliciter leading to the same result." Thus, from a conspectus of the
various authorities discussed above and the setting, object and interpretation
of the second proviso to sub-section (3) of s. 125 of the Code of 1973, we find
ourselves in complete agreement with the view taken by the learned Judge of the
High Court. We hold that where it is proved to the satisfaction of the court
that a husband is impotent and is unable to discharge his marital obligations,
this would amount to both legal and mental cruelty which would undoubtedly be a
just ground as contemplated by the aforesaid proviso for the wife's refusal to
live 711 with her husband and the wife would be entitled to maintenance from
her husband according to his means. In these circumstances, therefore, it would
be pusillanimous to ignore such a valuable safeguard which has been provided by
the legislature to a neglected wife.
For these reasons, therefore, we find no
merit in the appeal which fails and we accordingly dismiss the same without any
order as to costs.
In view of our decision in this case, it
follows that the decisions referred to above in the judgment taking a contrary
view must be held to be no longer good law and are hereby overruled.
P. B. R. Appeal dismissed.
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