1. The learned Magistrate admits in his report that he disallowed the examination of the petitioner's witnesses as to cruelty because, in his opinion, such evidence was inadmissible in a proceeding under Section 488 of the Criminal Procedure Code. That opinion appears to be supported by the authority of the ruling of the Allahabad High Court in In the matter of the petition of W.A. Thompson (1874) 6 N.W.P. 205, where, dealing with Section 536 of Act X of 1872, Pearson J. said 'This provision does not, in my judgment, authorise the Magistrate to entertain applications for separate maintenance, on the ground of ill-treatment, from wives whose husbands have not neglected or refused to maintain them, but who have of their own accord left their husband's house and protection and to order allowances to be paid to such wives on evidence of ill-treatment.' In one sense, that construction of the section, the wording of which, so far as the point now under consideration is concerned, is the same as the wording of Section 488, need not be objected to. Where it is proved that a husband has not refused ox neglected to maintain his wife, a criminal Court, acting under the section, has no jurisdiction to make an order upon the husband for her maintenance on the ground that the husband has been guilty of cruelty to her. But that is a very different thing from holding that no evidence of cruelty can be admitted in a proceeding under the section to prove, not indeed cruelty as a ground for separate maintenance, but the conduct and acts of the husband from which the Court may draw the inference of neglect or refusal to maintain the wife. A neglect or refusal by the husband to maintain his wife may be by words or by conduct. It may be express or implied. If there is evidence of cruelty on the part of the husband towards the wife from which, with other evidence as to surrounding circumstances, the Court can presume neglect or refusal, we do not see why it should be excluded. There is nothing in Section 488 to warrant its exclusion and such has been the practice of this Court. And GavarishanKer v. Bai Rava (1903) 5 Bom. L.R. 614 supports it. Further, that construction appears to be in accordance with the intention of the Legislature so far as it can be gathered from all the provisions of Section 488. In order to find out the intention of the Legislature in enacting a particular provision in a Statute, it is a canon of interpretation that we must have regard to the language of the whole section and not confine ourselves to its words detached from the whole of the context. And it is also a rule of construction that in interpreting a section which is ambiguous, the Court may look to the state of the law as it had existed before the Statute containing the section was passed. As Section 488 originally stood, it entitled the Court to pass no order for maintenance even where refusal was proved, if the husband was willing to take the wife back and maintain her, provided the Court was satisfied that the husband had not habitually treated her with cruelty, that is, if during the period of refusal there had been no habitual cruelty on the husband's part. It is clear from this that the Legislature did intend that the Court should have regard to the evidence of cruelty in determining the question of neglect or refusal. But the section has been altered and now the Court can pass an order for maintenance where neglect or refusal is proved, even if the husband is willing to maintain the wife, provided the Court finds that there are 'just grounds for' passing such an order. This alteration gives a wider discretion to the Court, which means that in passing such an order it is legitimate for it to take into account the relations between the husband and the wife and the husband's conduct towards her.
2. We set aside the order of the Second Presidency Magistrate and remand the case to be dealt with according to law, having regard to the observations in this judgment.