Guman Mal Lodha, J.@mdashThis application u/s 482 Cr. P.C. by Amir Khan against his wife Mst. Mariam and son Tyab has taken a very interesting turn during arguments because the learned Counsel has broadened the horizons of the submission invoking Article 25 of the Constitution. According to him Section 125, Cr. P.C. so far as explanation to the second proviso of Sub-section (3) is concerned it violates Article 25 of the Constitution because it takes away the right of the minorities to follow their religion. The explanation enables a wife to claim maintenance on the simple and mere showing that the husband has contacted a second marriage with the another woman or keeps a mistress.
2. The learned Counsel submits that according to the tenants and injunctions of the Mohammedan Law contained in the great Pious Kuran Sariff a person who professes Muslim religion is entitled and authorised by religion to conduct marriage with four women. The learned Counsel submits that being religious injunction any law which results in virtual denial of it or infringement of it or putting limitation over it in any way creating rider by such enactment would extinguish that religious right and therefore, would be violative of Article 25.
3. The learned Counsel has referred to page 109 of a book with the caption "Anudit Kuran Majid Sansipat Tika Sahit Sayeed Abul Ala Modudi" published by Marakji Maktaba Islami Delhi-6, in 1983. First Edition with the translation in Hindi by Mohammed Farook Khan. In this sacred book the Chapter under the caption Sura Annisa (Madina Main Utari 176) with a sub caption ''Allahah Ke Nam So Jo Atyant Karana may Or-Dayawan Hai'' contains the following ''Ananthon ke Dhan Uneh Vapas Do'' Ache Mal ko Bura Mal Se Na Badllo Aur Unke Malke Sath Milakar Na Kha Jao Yeh Bahut Bada Paap Ha i."
4. Now comes to the relevant portion which reads as under:
5. It is significant that the commentator has mentioned the following to explain and amplify the concept of a muslim''s right to marriage of more than one women and maximum four women. The commentator says as under:
6. It would be thus seen that the holy pious and sacred Kuran Sarif according to this paragraph contained in it; and since. I am not required here either to discuss much less to adjudicate the great important question of far reaching consequence about the right of a muslim to have one or than more women therefore, I am limiting my observation to the portion which has been referred to me by learned Counsel and that too to the limited extent of its application in the present case; would show that the original basic fundamental bedrock of the permissible right of a Muslim to have marriages of more than one women and maximum four was not motivated or in any way concerned with the general unbridled right for enjoyment of life or sex or having a company. But it was motivated with a great pious sacred object of providing protection to those orphan girls who used to become orphan on account of war or other reasons and thereafter when the society was not capable of providing them full satisfaction and looking after their necessities, then only great prophet injunctions were revealed that in such cases the best way to provide protection is to many such orphan girls upto maximum of four with the rider and the condition that all must be treated alike equal and justice must be done to all of them. Any failure in this respect of ''the husband to give equal treatment or to provide equal justice or the provide equal protection would be violative of the basic intention of object and the purpose of protecting orphans which was kept in the tenant of Kuran Sarif by the great prophet.
7. That being so Section 125, Cr. P.C. enacted by the legislature is meant for providing such protection in cases where after conducting marriage justice is not done to the weaker spouse and the wife is left high and dry without maintenance on account of neglect or ill treatment or any other reason what ever the case may be.
8. It is true that the explanation added to the proviso to Sub-section (3) taken in itself alone, from the context of other clauses of this section, would give an impression that second marriage perse simpliciter in itself is sufficient to claim maintenance and nothing more is required to prove. In that context it would certainly raise a serious question of interpretation of the Constitution and also of Article 25 and whether Section 125, Cr. P.C. subsection (iii) the proviso and the explanation attached to it by which a Muslim woman is entitled to claim maintenance simply on the ground of second marriage of husband would be inconnsonance with or in violation of the above tenants injunction and next of the Muslim personal law. However that is a matter which should not be decided in such a casual manner because at the moment neither the full text of the Muslim law has been referred to or is available before me nor it has been debated or there has been dialogues nor turning process started so far in any legal court.
9. Before me at the moment there is a simple case where there is a finding of the lower court that the husband neglected the maintenance of the wife in addition to the other finding and those findings are sufficient for grant of maintenance, irrespective of the conduct of the second marriage or not. That being so I would not venture to make reference to a larger Bench in a half hearted manner in a most sensitive matter where the personal law of a community as a whole is involved and where Article 25 of the Constitution will have to be interpretated with all seriousness. I would therefore, leave it to be considered, in some other important case if at all it arises. It is sufficient to mention in the present context that the prevalent notice the prevalent feeling and the prevalent common parlance understanding that a muslim can marry four women according to his personal law is based on the ordinary superficial thinking and understanding without appreciating the great pious sacred object of the great prophet who in the above text of Kuran Sarif, provided, this is for protection of orphans. In all religion the protection of orphans the destitudes, the weakers sections and weaker section of the society has always been emphasised and the Muslim personal law whether it permits or enables or inspires male to conduct more than one marriages upto 4 was inspired with the sole object of providing protection to orphans who could not be otherwise looked after and cared for by the society. It is unfortunate that this important salient feature is mostly not known and therefore, is ignored in the society.
10. Be that as it may since I am not here in this case required to consider in detail this aspect of the case, I would only reject this application with the observation that as far as the present case is concerned, the neglect is proved and u/s 482 Cr. P.C. there has been no abuse of process of the court nor it is required for ends of justice that I should interfere in order to deprive a woman from maintenance where one has been granted by the lower courts.
11. Before parting with this judgment I may mention that if a proper case arises, in the proper court it would certainly be an important question to the considered, debated and then decided if necessary by a larger bench, whether Section 125 Cr. P.C. with its Sub-section (iii) and the explanation attached to the proviso, which permits maintenance merely on the ground of second marriage to a muslim woman in any way violates the Constitutional guarantee under Article 25 of the Constitution, because of the Muslim personal law permitting more than one marriage.
12. With the above observations, this application is rejected.
