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PETITIONER: SIRAJMOHMEDKHAN JANMOHAMADKHAN

       Vs.

RESPONDENT: HAFIZUNNISA YASINKHAN & ANR.

DATE OF JUDGMENT14/09/1981

BENCH: FAZALALI, SYED MURTAZA 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.

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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. 697

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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 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

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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 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 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

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    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  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 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..."

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     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

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    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.

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    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

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    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

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    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.

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         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

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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. 712