Full Judgment Text
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PETITIONER:
BEGUM SUBANU ALIAS SAIRA BANU & ANR.
Vs.
RESPONDENT:
A.M. ABDUL GAFOOR
DATE OF JUDGMENT03/04/1987
BENCH:
NATRAJAN, S. (J)
BENCH:
NATRAJAN, S. (J)
SEN, A.P. (J)
CITATION:
1987 AIR 1103 1987 SCR (2) 773
1987 SCC (2) 285 JT 1987 (2) 55
1987 SCALE (1)672
ACT:
Code of Criminal Procedure, 1973--Section 125 and Expla-
nation to second proviso of sub-section
(3)--Maintenance--Right of a Muslim wife to live separately
and claim maintenance against the husband who marries anoth-
er wife or takes a mistress--Liability to pay maintenance-
Husband not absolved by offer to take back wife and maintain
her--Right of Muslim husband to take more than one wife not
affected--Scope and effect of.
HEADNOTE:
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-
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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
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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 v. 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 v. Devamma, [1953], Mad. W.N. Crl. 243 = AIR
1954 Mad. 226; Kundaswami v. Nachammal, AIR 1963 Mad. 263;
Syed Ahmed v.N.P. Taj Begum, AIR 1958 Mys 128; Shambu v.
Ghalamma, AIR 1966 Mys 311; Teja Bai v. Shankarrao, AIR 1966
Bom 48; Mohammed Haneefa v. Mariam Bi, AIR 1969 Mad 414;
Bela Rani v. Bhupal Chandra, AIR 1956 Cal 134; Rupchand v.
Charubala, AIR 1966 Cal 83; Ishar v. Soma Devi, AIR 1959
Punj 295; Dhan Kaur v. Niranjan Singh, AIR 1960 Punj 595;
Ramji Malviya v. Munni Devi, AIR 1959 All. 767; Sahulmmeedu
v. Subaida Beevi, [1970] Kerala Law Times Page 4; and Mohd.
A. Khan v. Shah Bano Begum, [1985] 3 SCR 844 at 856, re-
ferred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 605
of 1986.
From the Judgment and Order dated 27.5.1985 of the
Kerala High Court in Crl. Misc. 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
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(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
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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 v. Devamma, [1953] Mad. W.N. Crl. 243 = AIR
1954 Mad. 226.
(2) Kundaswami v. Nachammal, AIR 1963 Mad. 263
(3) SyedAhmedv. N.P. TajBegum, AIR 1958 Mys 128
779
(4) Shambu v. Ghalamma, AIR 1966 Mys 311
(5) Tela Bai v. Shankarrao, AIR 1966 Bom 48
(6) Mohammed Haneefa v. 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 v. Bhupal Chandra, AIR 1956 Cal 134
(8) Rupchand v. Charubala, AIR 1966 Ca183
(9) Ishar v. Soma Devi, AIR 1959 Pun} 295
(10) Dhan Kaur v. Niranjan Singh, AIR 1960 Punj 595.
A third line of view was taken in Ramji Malviya v. 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 v. 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 v. Hyderabaig, [1972] Crl. Law Journal 1270 as
under:-
"Therefore, a husband who married again cannot
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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.P.C. 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 v. 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
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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
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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 v. 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
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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.
785