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Mental cruelty cannot be different in a civil case and in a criminal case

Supreme Court of India

PETITIONER:SIRAJMOHMEDKHAN JANMOHAMADKHAN
Vs.
RESPONDENT:HAFIZUNNISA YASINKHAN & ANR.

DATE OF JUDGMENT14/09/1981

BENCH: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.
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.

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.

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.

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.

JUDGMENT:
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 fulfil 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 upto 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
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 Courts
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
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 fulfil 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 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 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. ”
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 cf 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
(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

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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

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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 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
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.”

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 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.”

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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 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:-

“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 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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