judgement:
vil Appeal No. 85 (N) of 1972.
From the Judgment and Order dated 27.11.1970 of the Kerala High Court in A.S. No. 380 of 1965.
WITH SPECIAL LEAVE PETITION (CIVIL) No. 2908of 1975.
From the Judgment and Order dated 15.1.1975 of the Kerala High Court in Second Appeal No. 390 of 1971.
T.S. Krishna Murthy lyer, A.S. Nambiar, G.N. Rao and Ms. Shanta Vasudevan for the Appellants in C.A. No. 85(N) of 1972 and Respondents in SLP.
No. 2908 of 1975.
N.M. Ghatate and section Balakrishnan for the Respondents in C.A. No. 85(N) of 1972 and Petitioners in S.L.P. No. 2908 of 1975.
The Judgment of the Court was delivered by 769 KHALID, J.
We will first deal with Civil Appeal 85/1972.
The appellants were the plaintiffs in O.S. No. 78 of 1964 on the files of the Subordinate Judge 's Court, Palghat.
The suit was based on a Kuri transaction (Chit Fund).
The re spondents were subscribers to the Kuri.
They committed default after they had prized it and realised the Kuri amounts.
Hence the suit was filed for realisation of the principal sum with interest and the balance Kuri due.
The suit was decreed by the Subordinate Judge by his Judgment dated 24th June, 1965.
An appeal was filed before the High Court.
A Division Bench of the High Court heard the appeal and partly allowed it by modifying the decree of the Trial Court refixing the interest, largely influenced by the fact that the Kuri transaction and the contract between the foreman of the Kuri and the subscribers (defaulted) burdened the subscribers with unconscionable interest and were unrea sonable.
To appreciate the reasoning of the Division Bench it is necessary to set out the scheme of the Kuri.
The respondents took two tickets in a Kuri (Chit Fund) started by the appel lants in September, 1962.
Under the scheme of the Kuri, there will be bidding at monthly intervals.
The subscriber bids and prizes the ticket depending upon his need.
When he does so, he voluntarily surrenders the benefit of dividends which is distributed among the subscribers.
For example, suppose the Kuri amount is Rs.5,000 consisting of 50 tickets valued at Rs.100.
At the first bid the lowest bid is 3500 by A. A gets this amount and the balance of Rs.1500 will be distributed among the other subscribers.
But the prized subscriber has a duty to pay the entire amount in instal ments without default.
Here the respondent bid and prized both the tickets; one on the third draw and the other at the th and received the amounts.
As per rules of the Kuri they executed bonds to secure future instalments.
However, they committed default in paying the future instalments.
That resulted in the suit.
The main contention which found favour with the High Court, raised in defence, was that the rules of 'the Kuri contained several unconscionable and penal provisions like the provisions relating to the payment of all the future instalments in a lump with interest at 12% ignoring the claim of the defaulting subscribers to their share in the reduction (the dividend).
The Kuri system was in vogue in the erstwhile Travancore State and in the Cochin State, prior to the formation of Kerala State and they were governed in those two areas by the Travancore Chit Act of 1945 (Act 26 of 1120 M.E.) which came into force on 20 6 1945, and 770 the Cochin KUries Act 7 of 1106.
There was no corresponding Act for Malabar area from which area the present appeal arises.
After the formation of the Kerala State, Kuri trans actions in the State are governed by the Kerala Chitties Act, 1975, as amended by Act 19 of 1978.
The High Court after taking into account the interest stipulated observed that it was unconscionable and penal and reduced the amount to Rs.10,000 and modified the decree to that extent.
The reason that persuaded the High Court to do so was its con cern at the unreasonableness of the terms of the contract and the High Court expressed it in the following words: "Before we leave this case, we wish to add a few words.
In our experience, we have not yet come across such a kurivari which has so many unconscionable provisions.
Ground No. 5 in the memorandum of grounds of appeal shows the amount payable by the appellants.
the amount received by them, etc.
to show the unconscion ableness.
The appellants received only Rs. 16,185 (on both the tickets together); and, all told, they already paid back Rs.5,100 as subscriptions.
The claim in the suit towards future instalments is Rs.21,000 with interest of Rs.1,785.
And all this within less than two years, the date of commencement of the Kuri being 20th September, 1962 and the date of suit being 2nd September, 1964 for receiving a little over Rs.16,000 the appellants have to pay a little less than Rs.28,000.
In our considered opinion, such transactions should not be allowed, and people who carry on such transactions are really unsocial elements.
We are told that the same stake holders are carrying on such kuries even now without any hindrance, because there is no law to control the conduct of chit funds now in the Malabar area.
It is time that the Government moved in the matter and brought some legislation to control such unsocial activities.
" A full Bench of the Kerala High Court had occasion to consider the correctness of this view and in a decision reported in , such Kuri transactions were upheld and the decision of the Division Bench was reversed.
According to the full Bench, there was nothing unconscion able about the contract.
Before the full Bench it was con tended that this stipulation in the agreement where a sub scriber prized his chit, providing that on default the Kuri foreman would be entitled to recover the entire balance amount with 12% interest in a lump sum without giving credit to the subscribers, is penal 771 in nature and held in terrorem for securing due performance of their promise and hence not enforceable.
Eradi, J. as he then was, speaking for the full Bench held that a subscriber truly and really becomes a debtor for the prized amount paid to him, that the facility of repayment in instalments is only a concessional facility and that stipulation enabling the foreman to withdraw the concessional facility on default of punctual payment of the instalments would not be penal or unconscionable.
We quote below the observations made by the full Bench in paragraphs 6 & 7: "6.
The question whether a particular stipula tion in a contractual agreement is in the nature of a penalty has to be determined by the court against the background of various relevant factors, such as the character of the transaction and its special nature, if any, the relative situation of the parties, the rights and obligations accruing from such a transaction under the general law and the intention of the parties in incorporating in the contract the particular stipulation which is contended to be penal in nature.
If on such a comprehensive consideration, the court finds that the real purpose for which the stipula tion was incorporated in the contract was that by reason of its burdensome or oppressive character it may operate in terrorem over the promiser so as to drive him to fulfil the contract, then the provision will be held to be one by way of penalty." "7.
Where a contract provides for payment of money in instalments and contains also a stipulation that on default being committed in paying any of the instalments the whole sum shall become payable at once, the true test for determining whether the said condition is in the nature of a penalty is to find out whether the amounts referred to in the agree ment were debita in praesenti although solven da in futuro or whether they were to become due to the promisee only on the respective dates when the instalments were payable.
If on a proper construction of a contract it is found that the real agreement between the parties was to the effect that the whole amount was on the date of the bond a debt due but the creditor for the convenience of the debtor allowed it to be paid by instalments intimating that if default should be made in the payment of any instalments he would with draw the concession, then the stipulation as to the whole amount of the balance becoming payable 772 would not be penal; if, on the other hand, on a proper consideration of the terms of the contract the court comes to the conclusion that the debt itself arises or becomes due and payable by the debtor only on the respective dates fixed for the instalments the stipula tion that on default being made in the payment of any instalment the whole of the balance should become due and payable would be in the nature of a penalty.
" We agree with the law so laid down by the full Bench.
The result is that the appeal has to be allowed.
Accord ingly, we set aside the Judgment of the High Court and allow this appeal but in the circumstances of the case, without costs.
Special leave granted in S.L.P. (Civil) 2908/75.
Here the Judgment of the High Court is challenged by a subscriber putting forth the arguments that found favour with the Division Bench in the earlier appeal.
We adopt the reasoning of the full Bench in , which was followed by the Division Bench in the Judgment under appeal in this case.
The appeal, therefore, has to fail and is dismissed.
However, with no order as to costs.
P.S.S. Appeal dis missed.

summary:
The respondents who were subscribers to a Kuri (Chit Fund) in 1962, committed default after they had prized the tickets and realised the amounts.
The bonds executed by them contained a provision that in case of default they would be liable to pay all the future instalments in a lumpsum with interest at 12% without giving any credit for the dividend.
The suit filed for realisation of the principal sum with interest and the balance Kuri due was decreed by the trial court in 1965.
In appeal before the High Court it was con tended for the defendant respondents that the stipulation in the agreement that on default the Kuri foreman would be entitled to recover the entire balance amount with 12% interest in a lump sum without giving credit to the sub scribers was unconscionable and penal and hence not enforce able.
The Division Bench took the view that the Kuri trans action and the contract between the Kuri foreman and the subscribers burdened them with unconscionable interest and were unreasonable.
It, therefore, partly allowed the appeal by modifying the decree refixing the interest.
Allowing the appeal by appellants plaintiffs and dis missing the appeal by other subscribers by special leave, the Court, HELD: Where a contract provides for payment of money in instalments and contains also a stipulation that on default being committed in paying any of the instalments the whole sum shall become payable at once, the true test for deter mining whether the said condition is in the 768 nature of a penalty is to find out whether the amounts referred to in the agreement were debita in praesenti al though solvenda in futuro or whether they were to become due to the promisee on the respective dates when the instalments were payable.
[771E G] If on proper consideration of a contract it is found that the whole amount was on the date of the bond a debt due but the creditor for the convenience of the debtor allowed it to be paid by instalments then the stipulation would not be penal.
If on the other hand the court comes to the con clusion that the debt becomes due only on the respective dates fixed for the instalments, the stipulation would be in the nature of a penalty.
[771G H; 772A B] In the instant case there was nothing unconscionable about the contract.
A subscriber to a Kuri truly and really becomes a debtor for the prized amount paid to him, The facility of repayment in instalments is only a concessional facility.
The stipulation enabling the foreman to withdraw this facility on default of punctual payment of the instal ment could not, therefore, be said to be penal.
[770G H; 771A B] P.K. Achuthan vs State Bank of Travancore, Calicut, , approved.


judgement:
2293 97 of 1982 etc.
(Under Article 32 of the Constitution of India.) section Markandeya, A.V. Rangam, G. Goswami, K.B. Rohtagi, Tara Chand Sharma.
Mrs. Chitra Markandeya, section Mitter, Ms. Abha Jain, N.S. Das Bahl, A. Subba Rao, M. Qurnaruddin, P.N. Ramalingam, D.K. Garg, A.K. Goel, H.K. Puri, R. Venkatarama ni, A.S. Pundir, Mukul Mudgal, R.N.Keswani, Mrs. Rani Chha bra, S.K. Gupta, H.S. Parihar, S.K. Bisaria, K.C. Dua, N.N. Sharma, Prem Malhotra, Dalveer Bhandari, B.R. Aggarwal, S.C. Pate|, S.K. Verma, Mrs. M. Karanjawala, K.B. Rohtagi, R.P. Singh, A.N. Bardiyar, V.K. Verma, R.P. Gupta, Shakeel Ahmed, and Mrs. Urmila Sirur for the Petitioners.
Anil Dev Singh, Ashok Grover, Ms. A. Subhashini, Mrs. 794 Shobha Dikshit, Raju Ramachandran, P.K. Ghosh, K.L. Goyal, H.S. Parihar and P.P. Singh for the Respondent.
P.H. Parekh, K.K. Gupta and Amlan Ghosh for the Interveners.
The Judgment of the Court was delivered by CHINNAPPA REDDY, J.
The Uttar Pradesh Legislature enact ed the Uttar Pradesh Industrial Area Development Act, 1976 for the constitution of an authority for the development of certain areas in the State into industrial and urban town ships and for matters connected therewith.
The New Okhla Development Area Authority (NOIDA) was constituted under the provisions of this Act.
NOIDA acquired vast extends of land in the autskirts of Delhi for the purpose of developing an industrial and urban township.
NOIDA announced two schemes called LIG EWS and MIG Schemes and invited applications for allotment of houses constructed and proposed to be con structed by them.
Several thousand applications were re ceived and NOIDA announced closure of the schemes on Decem ber 11, 1980.
Though in the original advertisement relating to the LIG EWS scheme, there was no reservation of allotment in favour of any class of persons, it appears that later on NOIDA decided to reserve a certain percentage of houses for some categories of persons in the following manner: "(1) Persons whose land has been acquired by NOIDA for the development of NOlDA . 2% (2) Enterpreneurs of NOIDA, and their employees . 17% (3) Employees of NOIDA, UP State Government under taking, UP State Development Authorities and UP Government . 15% (4) Employees of Central Government, Government of India, Public Undertakings, International Organisations . 5% (5) Political Sufferers . 5% (6) Nominees of HUDCO . 20%" 795 So far as the MIG houses are concerned, the reservation was mentioned even in the original advertisement inviting appli cations for allotment of houses.
Forty disappointed applicants for allotment of LIG EWS houses filed writ petition No. 220 of 1981 primarily ques tioning the reservation in favour of enterpreneurs and seeking a direction that the claims of the petitioners for allotment should be considered in any future scheme.
A Rule Nisi was issued by the court on April 4, 1981 and on May 8, 1981, an interim order was also made restraining NOIDA from making any fresh allotment of houses without obtaining the previous order of the court.
Another group of six persons who had applied for allotment of MIG houses filed Writ Petition Nos.
2292 97 of 1982 and a similar interim order was made in these petitions also on March 1982.
On the same day, that is, March 12, 1982 the application for interim directions in Writ Petition No. 220 of 1981 came up before another bench and an order was made therein permitting NOIDA to assign numbers to houses which had already been allotted but directing NOIDA to reserve 40 houses, so that the peti tioners could be accommodated if they succeeded in the writ petition.
What is important to be noted here is that by March 1982, only 40 persons had approached this court in the matter of allotment of houses under the LIG EWS Scheme and six persons in the matter of allotment of houses under the MIG Scheme.
Thereafter there appear to have been several hundred petitions of each category.
On April 30, 1984 all the petitions were heard together and an order was made by this court consisting of D.A. Desai and R.B. Misra, JJ.
in the following terms: "Mr. A.M. Srivastava, the Court Master is appointed as Court officer to do the following things: By our order dated March 12, 1982 this court directed that respondents will not allot 40 houses till the disposal of the writ petition.
Mr. O.P. Rana, learned counsel states that this order was understood by the respondents to mean that 40 houses shall be kept vacant both in EWS Group and LIG Group.
These 40 houses are available for allotment in each of the aforementioned groups.
We direct that the petitions in each EWS and LIG group who are desirous of having allotment of 'one of the houses reserved for the group shall immediately give their names with registration numbers latest by May 31, 1984 to 796 Mr. A.M. Srivastava, the Court Officer ap pointed by the Court.
He shall keep a register in which he will register the name of each such intending original applicant with the registration number.
Each such applicant shall also state that he will abide by the order of this Court with respect to interest and inci dental management charges that the Court may determine in case of EWS and LIG allotments.
In respect of these 40 houses in each group the price will be the old price at which the house in each group was advertised." "The respondent shall submit a statement within four weeks from today speci fying the split up of the amount worked out as price of each house in EWS group ranging from 27,000 to Rs.35,000 specifically referring to the component of price of the land included in the computation." "The respondents shall submit a statement specifying how cost of construction per sq.
metre in respect of EWS and MIG is determined.
If houses in any group is subsi dised without disclosing the names and nature of the subsidies, the same shall be disclosed.
Only the original applicants for the EWS and LIG group will be entitled for allotment but no one is entitled to cross the group in which registration was obtained." "Mr. O.P. Rana, learned counsel for the respondents states that respondents have 347 houses of Type III which could be provided to applicants in MIG group and 621 quarters in type II which could be allotted to applicants in LIG group.
It appears that LIG and MIG have acquired new designation as type III and Type II group.
It is, therefore, desirable to permit applicants registered in MIG to be grouped together with type III group and LIG with type II group." "Fair play and justice demands subject to just exception applicants regis tered in MIG and LIG groups must be allowed to participate in draw of lot for houses in Type III and Type II houses with this reservation that each of the applicants in either LIG or MIG shall undertake to pay prize as now fixed namely Rs.1,52,000 for MIG house each and Rs.59,000 for LIG house (type III and type II respec 797 tively).
It is hereby clarified that those who had registered in MIG group earlier shall be entitled to participate for the allotment of type III quarters and those who had applied for LIG group shall be entitled to participate for allotment of type II quarters.
Each one of the applicant who desires to participate shall follow the same prescribed procedure as herein indicated giving the necessary undertaking that he will abide by the direction of the Court.
The applicants will give their names and registration number latest by May 3 l, 1984.
Six weeks thereafter the respondents shall proceed to draw the lot for allotment if there are more applications than the available number of quarters in the presence of the Court Officer who shall hold and supervise the draw with the assistance of the NOIDA AUTHORI TIES and each one who succeed in the draw of lot shall be put in actual possession within four weeks thereafter." "The Nodia authorities will give wide publicity to this order." "Learned counsel on either side will exchange the responses to various proposals rooted out within two or three days from today and the matters will be listed after summer vacation.
" On July 17, 1984, the earlier order was clarified in the following manner: "(1) Pursuant to the order dated March 12, 1982 the NOIDA authorities were directed not to allot 40 houses to anyone so that the petitioners if they succeed in the Writ Peti tion, will not be denied houses for want of sufficient number of houses.
Therefore 40 houses were reserved in W.P. No. 228 of 1981.
The lot to be drawn in this case is amongst the 40 petitioners with regard to which houses should be given not anyone else but to those who are entitled to participate in the lots for these 40 houses.
(2) When we refer to the petitioners appli cants in our order dated April 30, 1984.
It is clarified, that all these persons who have moved either by way of appellants or Writ Petitioners and who had deposited the amount and those who had re deposited the amount under the orders of 798 this Court and accepted by the NOIDA authori ties in consonance with the order of this court, all of them shall form one class for participating in the lot.
Mr. A.M. Srivastava, Court Master should carry put the directions as herein directed to supervise the draw of the lot by the NOIDA authorities and complete the draw within one month from today.
We are satisfied that the persons who have made the applications within the time bound programme shall be entitled to partici pate in the proceedings in the draw of the lot.
" It will be noticed that though there was an order in favour of the 40 petitioners in Writ Petition No. 228 of 1981 that forty LIG EWS houses may be released to them, there was no similar order in favour of the petitioners in Writ Petition Nos.
2292 97 of 1982 to release MIG houses in their favour, notwithstanding that they stood on the same footing.
This question was considered on March 25, 1985 and an order was made directing the release of five MIG houses to I.L. Dhin gra, H.K. Bhatia.
C.S. Tomar, Jagan Nath and Gian Chand (petitioners in Writ Petition Nos.
2293 97 of 1982).
The stay granted by the court earlier which prevented delivery of the possession of houses to persons to whom houses were originally allotted was vacated.
It will thus be seen that as a result of the various orders made by the court from time to time, the forty petitioners in Writ Petition No. 228 of 1981 and five petitioners in Writ Petition Nos.
2293 97 of 1982 were accommodated in the two schemes and all those who took advantage of the order of the court dated April 30, 1984 were also accommodated.
We do not think that it is either possible or permissible for this court to give any further direction in these matters.
The orders made at several stages of these petitions should really conclude the matter.
Shri Markandeya, learned counsel for the petitioners, urged that the reservation made by NOIDA in favour of some of the categories of persons above mentioned was bad.
Keep ing in view the object of the Act under which NOIDA was constituted, prima facie, the reservation in favour of political sufferers and employees of Central Government, Government of India Public Undertakings and International Organisations appears to us to be bad, while reservation in favour of persons whose land was been acquired, entrepre neurs and NOIDA employees and employees of NOIDA appears to be sound.
Reservation in favour of persons belonging to scheduled castes, Scheduled tribes and back 799 ward classes was not questioned before us.
Reservation in favour of nominees of HUDCO was questioned but it appears to us to be prima facie justifiable as HUDCO is the principal financier of the schemes.
However,.
in the circumstances of these cases, we do not propose to probe further into the question of the validity of the reservations as we think that the petitioners in the writ petitions other than Writ Petition Nos. 228 of 1981 and 2293 97 of 1982 are not enti tled to any relief as they cannot be said to have acted with that degree of promptitude which is expected in matters of this nature where apart from the fact that rights of other parties intervene straightaway when allotment is made in their favour, it is not in the public interest that housing schemes etc.
such as the present schemes should be kept in abeyance or hanging fire when the need is urgent.
However by virtue of the orders made by the court from time to time, some of them have been benefited by allotment of houses which were available and such benefits as have accrued to them will stand.
The petitioners in Writ Petition No. 228 of 1981 and Writ Petition Nos.
2293 97 of 1982 have been allot ted houses pursuant to the interim orders of this court and no further orders are necessary in their case.
All the writ petitions are, therefore, dismissed but subject to the allotments made from time to time pursuant to the orders of this Court.
P.S. S Petitions dismissed.

dataset_name: IN-Abs

summary:
The New Okhla Development Area Authority (NOIDA) consti tuted under the provisions of the Uttar Pradesh Industrial Area Development Act, 1976 for the development of an indus trial and urban township and for matters connected there with, announced two schemes, called LIG EWS and MIG Schemes, and invited applications for allotment of houses constructed and proposed to be constructed.
Later on, it decided to reserve a certain percentage of houses in the first scheme for some categories of persons(1) persons whose land had been acquired for development, (2) entrepreneurs of the area and their employees, (3) employees of NOIDA Authority, U.P. State Government undertakings, U.P. State Development Au thorities and U.P. Government, (4) employees of Central Government, Government of India Public Undertakings, Inter national Organisations, (5) political sufferers, and (6) nominees of HUDCO.
For the MIG Group of houses, reservation was mentioned in the original advertisement.
Forty disappointed applicants for allotment of LIG/EWS houses filed a writ petition questioning reservation in favour of entrepreneurs.
Another group of six persons, who had applied for allotment of MIG houses, also filed writ petitions.
After interim orders were made in these two sets of petitions on March 12, 1982 several hundred more peti tions in each category were also filed.
All these petitions were heard together on April 30, 1984.
As a result of the various orders made by the Court from time to time, forty petitioners of the first category and five petitioners of the second category were accommodated in the two 793 schemes, and all those who took advantage of the order dated April 30, 1984 were also accommodated.
Disposing of the writ petitions, the Court, HELD: Keeping in view the object of the Act under which the NOIDA Authority was constituted, prima facie, the reser vation in favour of political sufferers and employees of Central government, Government of India public undertakings and international organisations was bad, while reservation in favour of persons whose land has been acquired, entrepre neurs of NOIDA and their employees, employees of NOIDA and nominees of HUDCO was sound and justifiable.
[798G H; 799A] In matters of this nature where apart from the fact that rights of other parties intervene straightaway when allot ment is made in their favour, it is not in public interest that housing schemes should be kept in abeyance or hanging fire when the need is urgent.
[799B C] If some of the petitioners have failed to act with that degree of promptitude which is expected in such matters, they are not entitled to any relief from the Court.
However, by virtue of the orders made by the Court from time to time, some of them have been benefited by allotment of houses.
Such benefits as have accrued to them will stand and no further orders are necessary.
[799C D]


judgement:
Appeal No. 502 of 1974.
From the Judgment and Order dated 16.2.
1973 of the Andhra Pradesh High Court in W.A. No. 227 of 1972.
Mrs. Kitty Kumaramangalam and C.V. Subba Rao for the Appellant.
A. Subba Rao for the Respondents.
The following Order of the Court was delivered: ORDER After hearing Smt.
Kitty Kumaramangalam, learned counsel for 802 the appellant and Shri A. Subba Rao, learned counsel for the respondents, we are inclined to the view that the High Court was not right in its interpretation of the word 'and ' used at the end of paragraph (b) of sub cl.
(ii) of the proviso to cl.
(b) of sub section
(1) of section 3 of the as being conjunctive.
In the present case, admittedly the respondents are engaged in working an open cast mine.
After an inspection, the Inspector of Mines found that the respondents were engaged in the open cast mining and the number of persons employed on any one day exceeded 50.
That being so, the respondents fell within the mischief of the proviso to cl.(b) of section 3(1) of the Act and became subject to the provisions of the Act.
The Inspector was therefore well within his powers to serve a notice under section 22 read with section 17 of the Act calling upon the respondents to appoint a qualified Manager for the mine.
The High Court on an errone ous interpretation of the word 'and ' occurring at the end of paragraph (b) of sub cl.
(ii) of the proviso to cI. (b) of sub section
(1) of section 3 of the Act held that the use of the word 'and ' made the three paragraphs conjunctive and unless the conditions specified in paragraphs (a), (b) and (c) co existed, the Inspector had no authority to serve the im pugned notice.
It accordingly allowed the writ petition filed by the respondents and quashed the impugned notice.
In order to appreciate the point involved.
it is neces sary to refer to a few statutory provisions.
The object and purpose of the Act, as reflected in the long title, is that it is an Act to amend and consolidate the law relating to the regulation of labour and safety in mines.
By section 2(h) of the Act, a person is said to be 'employed ' in a mine who works under appointment by or with the knowledge of the manager, whether for wages or not, in any mining operation.
Sub section
(1) of section 3 of the Act provides that the provisions of the Act, except those contained in sections 7. 8, 9, 44, 45 and 46 shall not apply to (a) any mine or part thereof in which excavation is being made for prospecting purposes only and not for the purpose of obtaining minerals for use or sale, (b) any mine engaged in the extraction of any of the minerals specified therein, including lime stone.
There is a proviso under each of the clauses (a) and (b) and they set forth three conditions on the happening of any one of which the proviso would be attracted, that is to say, the provi sions of the Act would be made applicable to such a mine.
The provision of sub section
(1) of section 3 of the Act insofar as relevant for purposes of this case reads as follows: "3. Act not to apply in certain cases (1) The provisions of 803 this Act, except those contained in sections 7, 8, 9, 44, 45 and 46 shall not apply to a) x x (b) any mine engaged in the extrac tion of kankar, murrum, laterite, boulder, gravel, shingle, ordinary sand (excluding moulding sand, glass sand and other mineral sands), ordinary clay (excluding kaolin, china clay, white clay or fire clay), building stone, road metal, earth, fuller 's earth and lime stone: Provided that (i) x x x (ii) where it is an open cast working (a) the depth of the excavation measured from its highest to its lowest point nowhere exceeds six meters; (b) the number of persons employed on any one day does not exceed fifty; and (c) explosives are not used in con nection with the excavation." According to the plain meaning, the exclusionary clause in sub section
(1) of section 3 of the Act read with the two provisos beneath clauses (a) and (b), the word 'and ' at the end of paragraph (b) of sub cl.
(ii) of the proviso to cl.
(b) of section 3(1) must in the context in which it appears be construed as 'or '; and if so construed.
the existence of any one of the three conditions stipulated in paragraphs (a), (b) and (c) would at once attract the proviso to clauses (a) and (b) of sub section (1) of section 3 and thereby make the mine subject to the provisions of the Act.
The High Court overlooked the fact that the use of the negative language in each of the three clauses implied that the word 'and ' used at the end of cl.
(b) had to be read disjunctively.
That construction of ours is in keeping with the legislative intent manifested by the scheme of the Act which is primarily meant for ensuring the safety of workmen employed in the mines.
We accordingly allow the appeal, set aside the judgment of the 804 High Court and dismiss the writ petition.
However, it was represented by learned counsel for the respondent that it is difficult to find a duly qualified person to come and serve as Manager of a mine in rural areas and we should call upon the appellant to find a suitable person for appointment as Manager.
Learned counsel for the appellant was however gracious enough to suggest that the Department will find a qualified person and depute him 26 work as Manager, and the respondents shall be liable to pay his salary and allowances as may be stipulated by the Joint Director of Mines Safety.
The Joint Director will select and depute a proper person to serve as Manager of the respondents ' mine within thirty days from the receipt of this order.
In view of this, the appellant will consider the feasi bility of not launching a prosecution against the respond ents for their past failure to appoint a duly qualified Manager as required under section 17 of the .
N.P.V. Appeal allowed.

summary:
The Inspector of Mines, after an inspection, found that the respondents were engaged in working an open cast mine and that the number of persons employed on any one day exceeded 50.
As respendents fell within the mischief of the proviso to clause (b) of Section 3(1) of the , and became subject to the provisions of the Act, he served a notice under Section 22 read with Section 17 of the Act calling upon the respondents to appoint a qualified Manager for the mine.
The respondents filed a writ petition in the High Court which allowed the petition and quashed the impugned notice on the ground that the use of the word 'and ' occurring at the end of paragraph (b) of sub clause (ii) of the proviso to clause (b) of sub section (1) of Section 3 of the Act made the three paragraphs conjunctive and unless the condi tions specified in paragraphs (a), (b) and (c) co existed, the Inspector had no authority to serve the impugned notice.
Allowing the appeal by the Joint Director of Mines, Safety.
HELD: 1.1.
The High Court was not right in its interpre tation of the word 'and ' used at the end of paragraph (b) of sub clause (ii) of the proviso to clause (b) of sub section (1) of Section 3 of the , as being conjunc tive.
It overlooked the fact that the use of the negative language in each of the three clauses implied that the word 'and ' used at the end of clause (b) had to be read disjunc tively.
[803G] 801 2.1 Sub section (1) of section 3 of the Act provides that the provisions of the Act, except those contained in sections 7, 8, 9, 44, 45 & 46 shall not apply to (a) any mine or part thereof in which excavation is being made for prospect ing purposes only and not for the purpose of obtaining minerals for use or sale, (b) any mine engaged in the ex traction of any of the minerals specified therein, including lime stone.
There is a proviso under each of the clauses (a) and (b) and they set forth three conditions on the happening of any one of which the proviso would be attracted, that is to say, the provisions of the Act would be made applicable to such a mine.
[802F H] 2.2 According to the plain meaning, the exclusionary clause in sub section (1) of Section 3 of the Act read with the two provisos beneath clauses (a) and (b), the word 'and ' at the end of paragraph (b) of sub clause (ii) of the provi so to clause (b) of Section 3(1) must in the context in which it appears be construed as 'or '; and if so constrned, the existence of any one of the three conditions stipulated in paragraphs (a), (b) and (c) would at once attract the proviso to clauses (a) and (b) of sub section (1) of Section 3 and thereby make the mine subject to the provisions of the Act.
Such construction is in keeping with the legislative intent mainrested by the scheme of the Act which is primari ly meant for ensuring the safety of workmen employed in the mines.
[803E H] [The Department will find a qualified person and depute him to work as Manager, and respondents shall be liable to pay his salary and allowances as may be stipulated by the Joint Director of Mines Safety.]


judgement:
Criminal Appeal No. 605 of 1986.
From the Judgment and Order dated 27.5.1985 of the Kerala High Court in Crl.
Case No. 211 of 1985.
Mrs. Geeta Luthra and D. Goburdhan for the Appellants.
S.C. Birla for the Respondent.
The Judgment of the Court was delivered by NATARAJAN, J.
Is a Muslim wife whose husband has married again worse off under law than a Muslim wife whose husband has taken a mistress to claim maintenance from her husband? Can there be a discrimination between Muslim women falling in the two categories in their right to claim maintenance under Section 125 of the Code of Criminal Procedure, 1973 (for 'short the "Code")? These fundamental questions of a startling nature run as undercurrents beneath the placid waters of this seemingly commonplace action for maintenance by a 777 Muslim wife against her husband.
We have projected these fundemental issues in the prefatory itself because these larger questions also arise for consideration in this ap peal.
Now for a resume of the facts.
The appellant was married to the respondent on 11.5.80 and she begot him a girl child on 9.5.81.
On grounds of neglect and failure to provide maintenance she filed a petition under Section 125 of the Code in the Court of the Judicial First Class Magistrate, Kasargod to seek maintenance for herself and the child at Rs.500 and Rs.300 per month respectively.
The Magistrate dismissed the petition saying the appellant had failed to establish adequate justification for living separately.
A revision was preferred to the Sessions Judge of Tellicherry.
During the pendency of the revision the respondent married one Sahida Begum on 18.10.84, as his second wife.
It was, therefore, urged in the revision that irrespective of the other grounds the second marriage of the respondent was by itself a ground for grant of maintenance.
The Sessions Judge skirted the issue by taking a devious view that since the respondent had contracted the second marriage after giving the appellant sufficient time and opportunity to rejoin him and since he had offered to take her back even after the second marriage, the appellant was not entitled to claim maintenance.
However, in so far as the child is concerned the Sessions Judge granted maintenance to it at Rs.100 per month.
The appellant then preferred a petition to the High Court under Section 482 of the Code for grant of maintenance to her and for enhancing the maintenance awarded to the child.
The High Court declined to interfere saying that the concurrent findings of the courts below precluded the appel lant from agitating her claim any further.
The aggrieved appellant has approached this Court of last resort under Article 136 of the Constitution for redressal of her griev ance.
The principal controversy in the appeal centres round the rights of liabilities of the parties in the context of the second marriage entered into by the respondent on 18.10.84.
The appellant 's case is that the second marriage has added a new dimension to her maintenance action and she has become entitled under law to live separately and claim maintenance.
The counter argument of the respondent is that he was driven to the necessity of marrying again because the appellant failed to rejoin him but even so he had offered to take her back and maintain her and the said offer exonerated him from his liability to pay maintenance.
The main defence, however, urged is that since he is permitted by Muslim Law to take more than one wife his second marriage cannot afford a legal ground for the appellant to live 778 separately and claim maintenance.
These rival contentions fall for our determination in this appeal.
The justification put forward for the second marriage cannot be taken as a tenable defence, even if such a defence is open, because there is no evidence to show that the respondent had asked the appellant to rejoin him and she had declined to do so before the respondent took his second wife.
Therefore, what really needs consideration is whether the second marriage of the respondent confers a right upon the appellant to live separately and claim maintenance and secondly whether her rights stand curtailed in any manner because of the personal law governing the parties permitting a husband to marry more than one wife.
The further question to be decided is whether even if the respondent is liable to pay maintenance, he stands absolved of his liability after his offer to take back the appellant and maintain her.
For adjudicating the rights of the parties we must construe the Explanation and determine its scope and effect.
The Explanation reads as follows: "If a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for his wife 's refusal to live with him.
" Before entering upon our discussion, we may refer to some of the decisions rendered by the High Courts on the scope and effect of the Explanation.
We are setting out only some of the cases and not making an exhaustive reference because the purpose of the reference is only to show the divergent views taken by several High Courts.
Furthermore, we have grouped the cases on broad classifications and not with reference to the line of reasoning adopted in each case.
In the following cases it was held that the second marriage of the husband entitled the wife to an order of maintenance under Section 488, Code of Criminal Procedure, 1898: (1) Bayanna vs Devamma, [1953] Mad.
W.N. Crl.
243 = AIR 1954 Mad. 226.
(2) Kundaswami vs Nachammal, AIR 1963 Mad.
263 (3) SyedAhmedv.
N.P. TajBegum, AIR 1958 Mys 128 779 (4) Shambu vs Ghalamma, AIR 1966 Mys 311 (5) Tela Bai vs Shankarrao, AIR 1966 Bom 48 (6) Mohammed Haneefa vs Mariam Bi, AIR 1969 Mad 414.
In the following cases a contrary view was taken holding that the mere fact that a husband has contracted marriage with another wife or keeps a mistress cannot without more be said to amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of sub section (1) of Section 488: (7) Bala Rani vs Bhupal Chandra, AIR 1956 Cal 134 (8) Rupchand vs Charubala, AIR 1966 Ca183 (9) Ishar vs Soma Devi, AIR 1959 Pun} 295 (10) Dhan Kaur vs Niranjan Singh, AIR 1960 Punj 595.
A third line of view was taken in Ramji Malviya vs Munni Devi, AIR 1959 All. 767 where it was held that ordinarily remarriage will be a sufficient ground for refusing to live with the husband but if the remarriage had been occasioned by the wife 's unjust refusal to live with her husband she cannot take advantage of her own wrong and claim mainte nance.
There are two decisions, one of the Kerala High Court rendered by V.R. Krishna Iyer, J., as the then was, and the other of the Andhra Pradesh High Court rendered by Chinnappa Reddy, J., as he then was, which require mention because they pertain to maintenance actions by Muslim wives whose husband had married again.
Krishna lyer, J. held as follows in Sabulameedu vs Subaida Beevi, [1970] Kerala Law Times Page 4.
"It behoves the Courts in India to enforce Section 488(3) of the Code of Criminal Procedure in favour of Indian women, Hindu, Muslim or other.
I will be failing in my duty if I accede to the argument of the petitioner that Muslim women should be denied the advantage of para.
2 of the proviso to Section 488(3).
" Chinnappa Reddy, J. held in Chand Begum vs Hyderabaig, [1972] Crl.
Law Journal 1270 as under: "Therefore, a husband who married again cannot expect the court to come to his rescue if he wants the first wife to 780 share the conjugal home with a co wife.
If she decides to live separately he is bound to provide a home for her and maintain her.
If he does not do that, he neglects or refuses to maintain her within the meaning of Section 488(1) Cr.
Thus the offer of a husband who has taken a second wife, to maintain the first wife on condition of her living with him cannot be considered to be a bona fide offer and the husband will be considered to have neglected or refused to maintain the wife.
" Lastly, we must also refer to the decision of this Court in Mohd. A. Khan vs Shah Bano Begum, [1985] 3 scr 844 at 856 wherein the Explanation came to be scanned by the Court while examining the larger question regarding the rights of divorced Muslim wives to claim maintenance under Section 125 of the Code.
The relevant observation of the Court is in the following terms: "The conclusion that the right conferred by Section 125 can be exercised irrespective of the personal law of the parties is forti fied, especially in regard to Muslims, by the provision contained in the Explanation to the second proviso to Section 125(3) of the Code.
That proviso says that if the husband offers to maintain his wife on condition that she should live with him, and she refuses to live with him, the Magistrate may consider any grounds of refusal stated by her, and may make an order of maintenance notwithstanding the offer of the husband, if he is satisfied that there is a just ground for passing such an order . .
The explanation confers upon the wife the right to refuse to live with her husband if he contracts another marriage, leave alone 3 or 4 other marriages.
It shows, unmistakably, that Section 125 overrides the personal law, if there is any conflict between the two." Having referred to the views taken by some of the High Courts and this Court about the ambit of the Explanation, we will now proceed to consider its terms and its operative force.
Though we stand benefited by the enlightenment de rived from the decisions referred to above, we are of opin ion that the Explanation calls for a more intrinsical exami nation than has been done hitherto.
Sub section (1) of Section 125 inter alia provides that if a person having sufficient means neglects or refuses to maintain his wife who is unable to maintain herself, the Magistrate may, upon proof of such neglect or refusal, 781 order the person to make a monthly allowance for the mainte nance of his wife.
The second proviso to sub section (3) lays down that if a person liable to pay maintenance offers to maintain his wife on condition of her living with him, and she refuses to live with him, the Magistrate may consid er the grounds of refusal, and may make an order for mainte nance notwithstanding the husband 's offer, if he is satis fied that there is just ground for ordering maintenance.
Then comes the Explanation which says that if a husband has contracted marriage with another woman or keeps a mistress, it shall be considered to be just ground for the wife 's refusal to live with him.
In the reported decisions where the Explanation has been construed, as entitling a Muslim wife to claim maintenance on the basis of the Explanation, the courts have only taken into consideration the first limb of the Explanation viz. "If a husband has contracted mar riage with another woman." Focussing attention on that part of the Explanation, the courts have held that the Explana tion is of common application to all wives whose husbands have contracted another marriage irrespective of the fact the personal law governing the parties permits another marriage during the subsistence of the earlier marriage.
We would like to point out that the Explanation contemplates two kinds of matrimonial injury to a wife viz. by the hus band either marrying again or taking a mistress.
The Expla nation places a second wife and a mistress on the some footing and does not make any differentiation between them on the basis of their status under matrimonial law.
If we ponder over the matter we can clearly visualise the reason for a second wife and a mistress being treated alike.
The purpose of the Explanation is not to affect the rights of a Muslim husband to take more than one wife or to denigrate in any manner the legal and Social Status of a second wife.
to which she is entitled to as a legally married wife, as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking a mistress during the subsistence of the marriage with her.
From the point of view of the neglected wife, for whose benefit the Explanation has been provided, it will make no difference whether the woman intruding into her matrimonial life and taking her place in the matrimonial bed is another wife permitted under law to be married and not a mistress.
The legal status of the woman to whom a husband has transferred his affections cannot lessen her distress or her feelings of neglect.
In fact from one point of view the taking of another wife portends a more permanent destruction of her matrimonial life than the taking of a mistress by the husband.
Be that as it may, can it be said that a second wife would be more tolerant and symapthetic than a mistress so as to persuade the wife to rejoin her husband and lead life 782 with him and his second wife in one and the same house? It will undoubtedly lead to a strange situation if it were to be held that a wife will be entitled to refuse to live with her husband if he has taken a mistress but she cannot refuse likewise if he has married a second wife.
The Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband 's right to marry again.
The Explanation has, therefore, to be seen in its full perspective and not dis junctively.
Otherwise it will lead to discriminatory treat ment between wives whose husbands have lawfully married again and wives whose husbands have taken mistresses.
Ap proaching the matter from this angle, we need not resort to a comparison of Muslim wives with Hindu wives or Christian wives but can restrict the comparison to Muslim wives them selves who stand affected under one or the other of the two contingencies envisaged in the Explanation and notice the discrimination.
It is this aspect of the matter which we feel has not been noticed hitherto.
Even if the Explanation is viewed in the larger context of the provisions of Section 125 the conclusion reached above is inescapable.
Section 125, its fore runner being Section 488, has been enacted with the avowed object of preventing vagrancy and destitution.
The Section is intended to ensure the means of subsistence for three categories of dependents viz. children, wives and parents who are unable to maintain themselves.
The three essential requisites to be satisfied before an order of maintenance can be passed are that (1) the person liable to provide maintenance has suffi cient means; (2) that he has neglected or refused to main tain and (3) the dependent/dependents is/are unable to maintain himself/herself/themselves as the case may be.
The Legislature being anxious that for the sake of maintenance, the dependents should not resort to begging, stealing or cheating etc.
the liability to provide maintenance for children has been fixed on the basis of the paternity of the father and the minority of the child and in the case of major children on the basis of their physical handicap or mental abnormality without reference to factors of legitima cy or illegitimacy of the children and their being married or not.
In the case of wives, whether their ties of marriage subsist or not, the anxiety of the Legislature is that they should not only not resort to begging, stealing or cheating etc.
but they should also not feel compelled, for the sake of maintaining themselves, to resort to an adulterous life or in the case of divorced women, to resort to remarriage, if they have sentimental attachment to their earlier mar riage and feel morally bound to observe their vows of fidel ity to the persons whom they had married.
This position emerges when we take an overall view of sub sections (1), (4) and (5).
783 While sub section (4) provides that a wife shall not be entitled to receive maintenance from her husband if she is living in adultery or if without sufficient reason she refuses to live with her husband or if She lives separately by mutal consent, sub section (5) provides that an order of maintenance already passed can be cancelled for any of the abovesaid reasons.
Thus by reason of sub sections (4) and (5) a husband can avoid his liability to pay maintenance if his wife is living in adultery.
Correspondingly a right has been conferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidelity and marries another woman or takes a mistress.
As already stated it matters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress.
Therefore, the respond ent 's contention that his taking another wife will not entitle the appellant to claim separate residence and main tenance cannot be sustained.
The Explanation is of uniform application to all wives including Muslim wives whose hus bands were either married another wife or taken a mistress.
It only now remains for us to consider the further defence of the respondent that in view of his offer to take back the appellant and maintain her he stand absolved of his liability to pay maintenance.
The offer to take back the appellant had been made only before the Revisional Court and that too after the second marriage had taken place.
The offer was not to the effect that he would set up a separate residence for the appellant so as to enable her to live in peace and with dignity.
As has been pointed out in Chand Begum vs Hyderbaig (supra) a husband, who marries again cannot compel the first wife to share the conjugal home with the co wife and as such unless he offers to set up a sepa rate residence for the first wife, any offer to take her back cannot be considered to be a bona fide offer.
It is, therefore, obvious that the offer was only a make believe one and not a genuine and sincere offer.
On the basis of such an insincere offer the appellant 's rights cannot be negated or defeated.
It is highly unfortunate that the Sessions Judge and the High Court should have declined to grant maintenance to the appellant in spite of the appel lant 's case falling squarely under the Explanation.
As the record contains evidence regarding the earnings of the respondent we are in a position to determine the quantum of maintenance for the appellant in this appeal itself instead of remitting the matter to the Trial Court or the Revisional Court.
The respondent has stated in his counter affidavit in the special leave petition that his income is only Rs.1,000 per month.
The appellant has stated in her 784 petition for maintenance that the respondent was getting Rs. 1,500 per month by way of salary and Rs.500 per month by way of income from properties.
In the four years that have gone by since the maintenance action was instituted the respond ent 's income must have certainly increased.
Therefore, taking all factors into consideration we fix the quantum of maintenance for the appellant at Rs.300 per month.
This amount will be paid with effect from 18.10.84 when the respondent married a second wife.
The arrears of maintenance will be paid by the respondent in five equal instalments, the first of such instalments to be paid during the first week of June 1987.
The subsequent instalments will be paid at intervals of three months thereafter i.e. during the first week of September 1987, first week of December 1987, first week of March 1988 and first week of June 1988.
Future maintenance must be paid before the cloth of every succeed ing month.
We also enhance the maintenance to the minor girl (second appellant) to Rs.200 per month from Rs. 100 per month with effect from 1.1.1987.
Default in payment of future maintenance or any instalments of the arrears will entitle the appellant to levy execution against the respond ent under Section 125(3) of the Code and realise the amount.
The appeal will stand allowed accordingly.
N.P.V. Appeal al lowed.

summary:
The appellant was married to the respondent on May 11, 1980.
A girl was born on May 9, 1981.
On grounds of neglect and failure to provide maintenance, the appellant filed a petition under Section 125 of the Code of Criminal Proce dure, 1973, seeking maintenance for herself and the child at Rs.500 and Rs.300 per month respectively.
The Magistrate dismissed the petition on the ground that the appellant had failed to establish adequate justification for living sepa rately.
The appellant preferred a Revision Petition to the Sessions Judge.
During the pendency of the said petition the respondent married again on October 18, 1984.
It was urged on behalf of the appellant in the revision petition that irrespective of the other grounds, the second marriage of the respondent was by itself a ground for grant of mainte nance.
The Sessions Judge, however, held that the appellant was not entitled to claim maintenance since the respondent had contracted the second marriage after giving the appel lant sufficient time and opportunity to rejoin him and since he had offered to take her back even after the second mar riage.
Insofar as the child was concerned the Sessions Judge granted maintenance at Rs.100 per month.
The appellant preferred a Petition to the High Court under Section 482 for grant of maintenance to her and for enhancing the maintenance awarded to the child and the High Court declined to interfere on the ground that the concur rent findings of the Court below precluded the appellant from agitating her claim.
In the appeal to this Court by special leave the appellant con 774 tended that the second marriage of the respondent had added a new dimension to her maintenance action and that she had become entitled under law to live separately and claim maintenance.
The appeal was contested by the respondent on the ground that he was driven to the necessity of marrying again because the appellant failed to rejoin him and he had offered to take her back to maintain her and the said offer exonerated him from his liability to pay maintenance.
It was further contended that as he was permitted by Muslim Law to take more than one wife his second marriage cannot afford a legal ground for the appellant to five separately and claim maintenance.
On the questions whether the second marriage of the respondent confers a right upon the appellant to live sepa rately and claim maintenance and whether the appellant 's rights stand curtailed in any manner because of the personal law governing the parties permitting a husband to marry more than one wife, and whether, even if the respondent is liable to pay maintenance, he stands absolved of his liability after his offer to take back the appellant and maintain her.
Allowing the Appeal, HELD: 1.1 Section 125 of the Criminal Procedure Code, 1973, its fore runner being section 488 of the Criminal Procedure Cede 1898, has been enacted with the avowed object of preventing vagrancy and destitution.
It is intended to ensure the means of subsistence for three categories of dependents viz. children.
wives and parents who are unable to maintain themselves.
[782D E] 1.2.
Before an order of maintenance can be passed the three essential requisites to be satisfied are that: (1) the person liable to provide maintenance has sufficient means; (2) that he has neglected or refused to maintain; and (3) the dependent/dependents is/are unable to maintain himself/herself/themselves as the case may be.
[782E F] 1.3 The Legislature being anxious that for the sake of maintenance, the dependants should not resort to begging, stealing or cheating etc.
, the liability to provide mainte nance for children has been fixed on the basis of the pater nity of the father and the minority of the child and in the case of major children on the basis of their physical handi cap or mental abnormality without reference to factors of legitimacy or illegitimacy of the children and their being married or not.
[782F G] 1.4 In the case of wives, whether their ties of marriage subsist or 775 not, the anxiety of the Legislature is that they should not only not resort to begging, stealing or cheating etc.
but they should also not feel compelled, for the sake of main taining themselves, to resort to an adulterous life or in the case of divorced women, to resort to remarriage, if they have sentimental attachment to their earlier marriage and feel morally bound to observe their vows of fidelity to the persons whom they had married.
[782G H] 2.1 By reason of sub sections (4) and (5) a husband can avoid his liability to pay maintenance if his wife is living in adultery.
Correspondingly a right has been conferred on the wife under the Explanation to live separately and claim maintenance from the husband if he breaks his vows of fidel ity and marries another woman or takes a mistress.
It mat ters not whether the woman chosen by the husband to replace the wife is a legally married wife or a mistress.
[783B C] 2.2 The Explanation is of uniform application to all wives including Muslim wives whose husbands have either married another wife or taken a mistress.
[783C D] 2.3 The purpose of the Explanation is not to affect the rights of a Muslim husband to take more than one wife or to denigrate in any manner the legal and social status of a second wife to which she is entitled to as a legally married wife, as compared to a mistress but to place on an equal footing the matrimonial injury suffered by the first wife on account of the husband marrying again or taking a mistress during the subsistence of the marriage with her.
[781E F] 2.4 This Explanation has to be construed from the point of view of the injury to the matrimonial rights of the wife and not with reference to the husband 's right to marry again.
[782B] 3.
The offer to take back the wife and maintain her does not absolve the husband of his liability to pay maintenance.
A husband who marries again cannot compel the first wife to the conjugal home with the co wife and as such unless he offers to set up a separate residence for the first wife, any offer to take her back cannot be considered to be a bona fide offer.
[783D F] Chand Begum vs Hyderbaig, [1972] Crl.
Law Journal 1270, referred to.
In the instant case, the offer to take back the appellant had been 776 made only before Revisional Court and that too after the second marriage had taken place.
The offer was not to the effect that he would set up a separate residence for the appellant so as to enable her to live in peace and with dignity.
The offer was only a make believe one and not a genuine and sincere offer.
On the basis of such an insincere offer the appellant 's rights cannot be negated or defeated.
[783D F] The Court granted maintenance to the appellant wife Rs.300 per month and enhanced the maintenance to the minor girl to Rs.200 per month.
[784B; C] Bayanna vs Devamma, [1953], Mad.
W.N. Crl.
243 = AIR 1954 Mad. 226; Kundaswami vs Nachammal, AIR 1963 Mad. 263; Syed Ahmed vs
N.P. Taj Begum, AIR 1958 Mys 128; Shambu vs Ghalamma, AIR 1966 Mys 311; Teja Bai vs Shankarrao, AIR 1966 Bom 48; Mohammed Haneefa vs Mariam Bi, AIR 1969 Mad 414; Bela Rani vs Bhupal Chandra, AIR 1956 Cal 134; Rupchand vs Charubala, AIR 1966 Cal 83; Ishar vs Soma Devi, AIR 1959 Punj 295; Dhan Kaur vs Niranjan Singh, AIR 1960 Punj 595; Ramji Malviya vs Munni Devi, AIR 1959 All.
767; Sahulmmeedu vs Subaida Beevi, [1970] Kerala Law Times Page 4; and Mohd. A. Khan vs Shah Bano Begum, ; at 856, re ferred to.