Holding

Impotence of the husband, when proved, is a just ground for the wife to refuse to live with him and entitles her to maintenance under Section 125(3) of the CrPC.

Summary

SirajMohammedKhan appealed against a judgment granting his wife, Hafizunnisa, maintenance under Section 125(3) of the Code of Criminal Procedure, 1973. The wife had proved that the husband was impotent and therefore unable to fulfil his marital obligations, and she refused to cohabit with him. The trial magistrate held that impotence was not a "just ground" for refusal of cohabitation and dismissed the maintenance application, but the Gujarat High Court reversed that view and awarded maintenance. The Supreme Court held that impotence, when proved, constitutes legal and mental cruelty and is a just ground under the second proviso to Section 125(3), thereby upholding the High Court's order. The Court overruled earlier decisions that excluded impotence as a ground and emphasized the purpose of the 1949 amendment to broaden the scope of "just ground". Consequently, the appeal was dismissed and the maintenance order stood.

Issues considered

Whether a husband's proven impotence is a "just ground" under the second proviso to Section 125(3) of the Code of Criminal Procedure, 1973 for a wife to refuse cohabitation and claim maintenance.
Whether the amendment of 1949 to Section 488 of the 1898 Code (now incorporated in Section 125(3)) expands the definition of "just ground" to include impotence.
Whether the earlier High Court decisions that excluded impotence as a ground are still good law.

Legislation cited

Subjects

maintenanceSection 125 CrPCimpotencejust groundcrueltyconjugal rightsmarital obligationsfamily law

Judgment

695 A

SIRAJMOHMEDKHAN JANMOHAMADKHAN
v.

HAFIZUNNISA YASINKHAN & ANR.
B
September 14, 1981

[S. MURTAZA FAZAL ALI & A.P. SEN, JJ.]

Code of Criminal Procedure, 1973-Section 125(3)-Scope of-Husband's
irppotence to have sexual ft!lations with his wife-Whether a just ground for grant
of maintenance to the wife. C

The respondent was the appellant's wife. Jn her petition under section
125(3) Criminal Procedure Code, 1973 for grant of maintenance, the Metropolitan
Magistrate, upheld her allegation that the appelJant 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. D

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 grourid 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 E
to live with the husband if there was a just 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 ajust F
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-7l lA]

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 Magis
trate to consider the grounds of refusal a�d 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 G
husbaod. Decisioos 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, Smr. Mahml [1978] Cr. L, J, 1661, Emperor v. Dau/at JloibhOll &
Anr., A.I.R. 1948 Nagpur69, Arunachala v. Anandayammal, A.l.R. 1933 Mad. B
668, Jaggavarapu Basawamma v. Jaggavarapu Seeta Reddi, A.I.R. 1922 Mad.
209 & Velayudhan v. Sukmari (1971] KLT 443 overruled.
696 SUPREME COURT REPORTS [1982] I S.C.R.

In the Matter of the Petition of Din Muhammad ilLR [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
B .illustrati\'e 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 BJ

A perusal of this provision shows that it was meant to give a dear instance
c 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 l 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
D wife has a reasonable apprehension arising from the conduct of the husband that
sht" is likely to be physica1!y harmed due to persistent demands of dowry from
her husband's parents or relations, such an <ipprehension also would be mani
festly a reasonable justification for the wife's refusal to live with her husband.
[704 D F]

Where a husband had contracted a marriage with another woman or kept
a mistress, it was considered to be a just ground for the wife's refusal to live with
E 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 CJ

It is well recognised 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 Jong. Abstinence from intercourse effecting ill health of the wife
can be held to be cruelty. [709 E. 710 F]
G
Rita Nijhawan v. Balkishan Nijhawan, AIR 1973 Delhi 200, Bhikajl
Maneckji v. Maneckji MancherJi, 5 Cr. L.J. 334, Bai Appibai v. Khimji Cooverji,
AIR 1936 Born. l:l8, Gunni v. Babu Lal, AIR 1952 Madnya Bharat 131,
H(ro V, Oehari 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
H Karnataka 8, approved.

Sheldon v. Sheldon [!966] 2 All. E.R. 257 referred to.
SlRAJMOHMEDl(HAN v. HAFIZUNNISA (Faza/ Ali, J.) 697

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. A
602 of 1981.

From the judg nent and order dated 27th August, 1980 of the
Gujarat High Court at Ahmedabad in Cr. Revision Application No.
282 of 1979.
B
N.N. Keshwan and R.N. Krshwuni for the Appellant.

Vimal Dave and Miss Kai/a<h Mehta for Respondent No. I.

S.C. Patel and R.N. Poddar for Respondent No. 2
c
The Judgment of the Court was delivered by

FAZAL ALI, J. This appeal by special leave is directed against
a judgment dated August 27, 1930 of the Gujarat High Court accep-
ting the revision application of the R°'ponJent and setting aside the
order of the Metrop,>litan Magistrate, Ahmedabad. Tl1e facts of D
the case lie within a very narrow compass, whic'.1 may be detailed
thus.

The respondent who is the wife of the appellant filed an appli-
cation before the Magistrate under s. 125 of the Code of Crimi11al
Procedure, 1973 (hereinafter referred to as the 'Code of 1973') for E
grant of maintenance by the appellant on the ground that her
husband-appellant was guilty of wilful neglect and was unable to
fulfil his primary responsibility of discharging his marital obligations.
The parties were married on May 27, 1978 accord'ng to Sunni
Muslim rites. After the marriage the respondent lived with her
husband upto July 1978. The respondent alleged that during this F
period she found her husband to be p'1ysically incapable of carrying
-0n sexual relationship and that her husband frankly told her that he
was impotent The respondent further alleged that she was maltrea-
ted and unltimately driven out of the house by her husband on July
II. 1978. On November 17, 1978 the appellant sent a registered
notice (Ext. 5) to the respondent informing her that he had no G
physical disability and was prepared to keep her with him and
discharge his marital obligations. On October 28, 1978 the respon-
dent filed an application before the Magistrate for awarding
maintenance against the appellant.
H
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 SUPREME COURT REPORTS (1982] 1 S.C.R.

A on the contentions raised by the parties before the conrts 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
B 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 (1) found that the mere ground
c 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
D 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 respon-
E dent. 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 Jong 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
F 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 Courts seems to have overlooked
the legal effect of the second proviso to sub-section (3) of section
G 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 main-
H tain his wife on condition of her living with him, and she

(1) [1978] Cr.L.J. 1661.
SIRAJMOHMEDKHAN v. HAFJZU1'1'1SA (Fozal Ali, J.) 699

refused to live with him, such Magistrate may consider any A
grounds of refusal stated by her, and may make an order
under this section notwithstanding such offer, if he is satis-
fied 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 fulfil the B
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 c
Agarwala and Ors.(') this Court held thus :

"Section 488 provides a summary remedy and is appli-
cable to all persons belonging to all religions and has no
relationship with the personal law of the parties."
D
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
Courts 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 E
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. Whle dwelling
on this aspect of the matter, the_Iearned Judge observed as follows:-
F

- "Assuming now for the purpcse 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 G
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, ~as not been established ... "
H
(1) [1970] 2 S.C.R. 565.
700 SUPREME COURT REFORTS (1982] I S.C.R.

A 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. Dau/at Raibhan and
B Anr. (1) 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 obli-
gations. In fact, a number of decisions of the -High Courts which
were relied upon by the counsel for the appellant follow the decision

c
of the Nagpur High Court as also the previous decisions of other
High Courts relied 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
cf fact by the Magistrate. which had been accepted by the High
D 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 wasJimpotent,
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
E 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
F convincing evidence that Bundoo was impotent."
(Emphasis supplied)

Jn 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.
G
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 Dau/at Raibhan' s case
H
(I) A.l.R. 1948 Nagpur 69.
SIRAIMOHMEDKHAN v. HAFIZUNNISA (Pozo/ Aii, J.) 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 in'luencd b; the fact that there was no direct
decision on the point taking a contrary view. In this cc-nnection,
the learned Judge observed as follows :-

"No authority has been cited before me in support of B
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 followiag
observations made in Arunachala Anandayammal(') :
c
"I cannot see thats. 488, Criminal P.C. has anything
to do with ordinary conjugal rights; it deals with mainten-
ance only ... "

The learned Judge seems to have been under the impression
that so far as the provisions of s. 488 of the Code of l 898 were D
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 E
setting of the statutory provision vanishes. In In the matter of the
Petition ~f Din Moh2mm2d('). Mahmood, J. very pithily and point-
edly observed as follows :

"The whole of Chapter XLI, Criminal Procedure Code,
so far as it relates to the maintenance of wives, contemp- F
lates 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)
G
We find ourselves in complete agreement with the observations
made by the eminent Jurist Mahmood, J. which lays down the
correct Jaw on the subject. Thus, one of the fundamental premises
on which rested the decision of Hidayatullah, J. appears to us to be
H
(!) AIR 1933 Mad. 668.
(2) !LR [1883] 5 Allahabad 226.
'102 SUPREME COURT REPORTS [ 1982] 1 s.c.R.

A clearly wrong and directly opposed to the very object of the section
(which at tlte relevant time was s. 488). In Arunchala's case (supra)
which was relied upon hy 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 "mainten-
B. ance" 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
c ordinary conjugal rights. Moreover, the Madras decision as also
the earlier decision seem to have followed the outmoded and anti-
quated 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
D 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
E 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. Jaggavar"pu 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
F not provide any cause of action to the wife to claim separate main·
tenance. 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
G
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
H
(I) AIR 1922 Mad. 209.
(2) [1971] KLT 443.
SIRAJMOHMEDKHAN v. HAFlZUNN!SA (Fazal Ali, J.) 703

is a sufficient ground justifying the award of separate A
maintenance to the wife. It was observed by Kumaraswami
Sastri, J. in Basmvamma v. Seetareddi (AIR 1922 Mad. 209)
that there is nothing in the Code which compels the crimi-
nal 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 B
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 c
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 follow- [)
ing 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 mamtenance if he was satisfied that
there was just ground for refusing to live with the husband, yet this E

-- salutary provision which was introduced with the clear object of
arming the wife with a-cause of action for refusing to Jive 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.
F
Another important event which happened in 1949 also seems
to have beeen 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 th us : G
"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."
H
The object of introducing this provision was clearly to widen
the scope and ambit of the term 'just ground' mentioned in the
704 SUPREME COURT REPORTS [1982] 1 s.c.R.

A 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 Jive with her husband. Under the Code
of 1973, this provision has been incorporated as Explanation to the
B second proviso to sub-section (3) of s. 125.

The decisions of the High Courts given prior to the Amend-
ment of 1949 would no longer be good Jaw 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
c Explanation to the second proviso to sub-section (3) of s. 125) and
widens its horizon. It is, therefore,foeedless to refer to these deci-
sions or to subsequent decisions which have followed the previous
cases.

A clear perusal of this provision manifestly shows that it was
D meant to give a clear instance of circumstances which may be treated
as a just ground for refusal of the ~wife to Jive 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
E 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
F relations, such an apprehension also would be manifestly a reason-
able 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.
G
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
H 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
SIRAJMOHMEDKHAN v. HAFIZUNNISA (Fazal Ali. J.) 705

he is impotent and unable to discharge his marital obligation, this A
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 B
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 atten-
tion 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 psycho- c
logically injurious but even from the medical point of view is detri-
mental 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. Balkishan Nijhawan(') (Sachar, J.) while D
dealing with a case of annulment of marriage under the Hindu
Marriage Act on the ground of impotency very poignantly and
pithily observed as t' allows :

"Thus the law is well settled that if either of the parties
to a marriage being a healthy physical capacity refuses to E
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 F
repondent.

Marriage without sex is an anathema. Sex is the
foundation of marriage and without a vigorous and har-
monious sexual activity it would be impossible for any G
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." H

(!) AIR 1973 Delhi 200.
706 SUPREME COURT REPORTS (1982] l S.C.R.

A 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 crnelty is the
same whether it is a criminal case or a civil case.

B 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 bas not refused or
c 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
D
to prove, not indeed cruelty as a ground for separate main-
tenance, 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 con·
duct. It may be express or implied. If there is evidence
E
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 dis-
cretion to the Court, which means that in passing such an
G order it is legitimate for it to take into account the rela-
tions 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
H
(!) 5 Cr.L.J, 334.
SIRAJMOHMEDKHAN v. HAFIZUNNISA (Faza/ Ali, J.) 707

and it is rather unfortunate that subsequent decisions have not A
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' B
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
c
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."
D
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 (Amend-
ment) Act, 1949 to show that it would not be a just ground E
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 unsatis-
factory state of law, utterly inconsistent with the pro-
gressive ideas of the status and emancipation of women, F
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 refusual to live with her husband G
only in those cases where he bas after the amendment,
taken a second wife or a mistress is to defeat in a large
measure the very object of the amendment."

H
(I) AIR 1936 Born 131.
(2) AIR 1922 Madhya Bharat 131.
708 SUPREME COURT REPORTS [1982] I S.C.R.

A 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 was a party, where
the importance of the Amendment of 1949 also touched, the
following observations were made :

B "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.
c
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
D on the pain of being deprived of any maintenance if they
chose to live separately from such a husband."

In Sm. Pancho v. R1Jm 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
E cruelty' and observed thus :

'"In advancement of a remedial statute, everything is to
be done that can be dooe consistently with a proper con-
struction of it, even though it ma) be necessary to extend
enacting words beyound their natural import and effect.
F
Conception of legal cruelty undergoes changes accord-
ing 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
G residence and separate maintenance. Moreover, to estab-
lish legal cruelty, it is not necessary that physical violence
should be used.

Continuous ill-treatment, cessation of marital inter-
course, studied neglect, indifference on the part of the
H
(I) AIR 1958 J & K 47.
(2) AIR 1956 All. 41.
SIRAJMOHMEDKHAN V. HAFIZUNNISA (Faza/ Ali, J.) 709

husband, and an assertion on the part of the husband that A
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 B
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-illtreatment or indifference cannot vary from
case to case though the facts may be different.
c
Similarly, while dealing with a case under the Hindu Marriage
Act, 1955, a Division Bench of the Karnataka High Court in Dr,
Srikant Rangacharyu Adya v. Smt. Anuradha (1 ) dwelling on the
aspect of impotency and its impact on the wife observed as
follows:-
D
"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 E
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 F
when happy and harmonious vivifies woman's brain, deve-
lops 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
G
made by the learned Judges of the Kri nataka 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 :-
H
(I) AIR 1980 Karnataka 8.
710 SUPREME COURT REPORTS [I 982] I S.C.R.

A "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
B animal.

In the context of the changing status of woman in
t
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
c the husband though he is forcing her iD 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."
D
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, (1) Lord Denning
observed as follows :

E "I rest my judgment on the ground that he has persis·
tently, 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
-
F causing ill-health can be held to be cruelty, so should •
desertion simipliciter 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
G 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
H contemplated by the aforesaid proviso for the wife's refusal to live

fl) [1966) 2 All.E.R. 257.
SIRAJMOHMEDKHAN v. HAFIZUNNISA (Fazal Ali, J.) 711

with her husband and the wife would be entitled to maintenance A
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 B
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. C

P. B. R. Appeal dismhsed.