(1) This is a reference by the learned Additional sessions judge, Latur, Arising out of an order passed under S. 488, Cr. P.C. by the learned judicial Magistrate, F.C. Udgir, awarding separate maintenance at the rate of the Rs. 30 per month to the wife. The wife, the Tejabai was married to the shankarrao Baswanappa in about 1954, when she was a minor. Shankarrao has a first she was the time. Tejabai filed the application of under S., 488 Cr P.C on 29-11-1963, alleging that the she was treated well for about a year after the a marriage and that she was ill - treated thereafter, and , finally, beaten and driven out of the hours on 23-11-1963. She therefore claimed maintenance at the husband had an annual to agricultural income of Rs. 3,000 and used to each Rs. 90 p.m. by was of salary as a Talati the allegations of ill - treatments were denied by the husband. He alleged that the Tejabai lived with him for about eight years after he marriage, and that she had left him time of Nagpanchami in the year before the application was filed. He further, alleged that the he has called her to this house, but she was refusing to return to him. He therefore, contended that she was not entitled to any maintenance.
(2) The learned judicial Magistrate held that the alleged ill - treatment had not been proved. At the see t ime, he was of the maintenance, 'neglected or refusal to maintain' being presumed on account or the husband having another wife. He therefore, ordered that the husband Shankarrao should pay Rs. 30 p.m. as maintenance's to her.
(3) Shankarrao, thereupon, filed a revision petition in the court of the sessions Judge at Latur. The learned Additional session judge held that the Magistrate had no jurisdiction to the pass the order maintenance merely on the ground of the Shankarrao having a second wife. He was of the view that the amendment of to sub =section (3) of S. 488 Cr. P.C. by Act 9 of the 1949, did not enlarge the ambit of the provision did of S. 488 (1) of the Cr. P.C. and did not supply a new ground for claiming maintenance.
(4) Both the courts have held that there was no ill = treatment of the wife. That if a finding of fact and is binding up the this court. The wife Tejabai and had put forwards the ground of ill - treatment has not been proved it must be held that she had voluntarily left her husbands house to stay with her parents. The question is whether, living separate from her husband she is entitled to claim maintenance under S. 488 Cri. P.C. on the ground that her husband has contracted marriage with another wife.
(5) Sub - section (1) of S. 488 Cr. P.C. provides that, if any person having sufficient means neglects or refuses to maintain his wife ......... a magistrate of the first calls, may, upon the proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife....... sub - section (2) of S. 488 provides the for payments of such allowances from the date of the order or the application for maintenance. Sub - section (3) is important. It says.
'If any person so ordered fails without sufficient cause to comply with the order ,any such Magistrate may, for every of the breach of the order, issue a warrant for levying the amount due...... and may sentence such person, for the whole or any part of the each months allowance remaining up paid after the execution of the warrant, to imprisonment's for term of which may extend to the one months or until payment of the soon made provided that if such person offers to maintain his wife on condition of her living with him and she refuses to live with the him such magistrate may consider any grounds of refusal stated by her, and may make an order under the state this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
'If a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be just ground for his wife's refusal to live with him'
This last provision, which explains the words 'just ground' in the proviso in its application to a particular situation has been added by S. 2 of Act 9 of the 1949. That bring us to sub - section (4) S. 488 which provides that, the no wife shall be entitled under to receiver an allowance from her husband or if under this section she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(6) There has been considerable divergence of opinion as to whether the proviso under sub - section (3) referred to above, is a proviso to sub - section (3) only, or to sub - section (1) This court has taken the view that it is proviso to sub - section (1) ....... see, for a example, Cri Reference No. 140 of 1959 Thagubai v. Vedu decided on 16th December 1959 (Bom) by Naik, J. (Unreported) Some other High Courts have taken the view that the will proviso to sub = section (3) only and will come into play when the offer has been made after an order has been passed granting maintenance under sub = section (1). The point of view out put forward is that the order for maintenance can be made only under sub - section (1) of S. 488 when two requirements have been fulfilled viz., that the husband, in the case of the wife, has sufficient means, and yet neglects or refuses to maintain her. Once an order her a has been passed under sub - section (1) sub - section (3) deals with the case where his in execution of that order the husband comes forward and offers to maintain his wife and, that sub - section permits the Magistrate to consider if the refuse to live with her husband. If 'Just grounds' are made out the he may issue an order under sub - section (3). But if just grounds are not made out of the living separately form the husband, the Magistrate not with standing the order made under sub - section (1) may pass and order disallowing the maintenance by the execution of that order. What was 'just grounds' under the proviso to sub - section (3) was always a matter in opinion on the facts of each case but after the Hindu Married women's Right to Separate Residence and Maintenance Act 19 of 1946, made provisions for separate maintenance to wife proven for husband took second wife the legislature though that a similar provision should be made by suitably amending S. 488 to meet a an order had been passed granting maintenance's under sub - section (1) that order was sought to the executed under sub - section (3) it would be longer open to the Magistrate to refuse execution of that order of the ground that the wife refuses live with her husband due to his having contracted marriage with another wife. In that view some High court have held that the explanation cannot be made a grounder the granting maintenance's but must be regarded as making special provision of in relation to the execution of has proceedings, when an order for maintenance's has already been made under sub - section (1).
(7) But, what happens when the husband offers to maintain his wife on condition of the living to with him before any order under sub section (1) is passed? Sub -section (4) is the answer. That sub - section says that, no wife answer shall be entitled to receive an allowance from her husband under his section ............. if without any sufficient reason she refuses to live with the her husband. It will be seen that in the proviso to sub - section (3), the words used are 'just ground', and in sub - section (4) the words used are 'sufficient reason' in view of the enactment of 1946, already referred to it may be taken as principle of general acceptances that if a husband contracts marriage with another wife the wife would be justified in refusing to live with him, and what is a 'just ground' for the proviso under sub -section (3) would also be a 'sufficient reason' under sub =-section (4). In Ramji Malviya, v. Smt. Munni Devi, : AIR1959All767 , Desai, J., as the then was observed with reference to the proviso sub - section (3) and sub - section (4) as follows:
'Sub - section (4) governs the whole section including sub - section (1) no maintenance can be ganged to a wife under sub - section (1) if she is living the adultery, or if without any sufficient reason refuses to live with her husband, or if she and her husband are living separately by mutual consent. In the active the sub = section (4) it was unnecessary for the legislature to apply the first proviso (to sub - section (3)) to sub - section (1) also. The proviso seem to have been etched in order to give the husband one more opportunity of the offering to maintain the wife on condition of the her living with him. He might not have made such an offer while the application for maintenance under sub -section (1) was pending against him, he might have though that the wife would not succeed improving a sufficient reason of the her living separately from him.
'So the legislature might have enacted the proviso (to sub - section (3)) to give him the made against him under an offer when an order made against him under sub - section (1) was sought to the enforced through issue of a warrant...........'
' .......... Though the proviso governs only sub - section (3), the provision that remarriage by the husband is a just ground for the wife's refusal of live with him, lays down a general principles which must be borne in mind when it is to be considered whether the wife's refusal to live with the meaning of sub section (4) A just ground for refusal of live with the husband must necessary be sufficient reason. A sufficient reason may not be adjust ground upon but a just ground must always be a sufficient reason......'
(8) It is therefore really not necessary to decide whether the proviso to sub - section (3) governs sub - section (1), or, only subsection (3) so far as the ground of the wife's refusal to stay with the husband is concerned. As pointed out in the case cited above : AIR1959All767 it is open to the husband to make his offer to maintain his wife on condition of her living with him before and any order under sub - section (1) is passed and when such an offer is made the husband wife is entitled to point out that the another wife and therefore it was a sufficient reason for her not to live with him it will be therefore her seen that the in view of sub - section (4) it will make no material difference to the situation arising from the ground that he has contracted another marriages, whether the proviso in sub - section (3) is and read as proviso in sub - section (3) is read as proviso to sub - section (1) or to sub section (3).
(9) In sm. Bela Rani Chatterjee v. Bhupal Chandra Chatterjee : AIR1956Cal134 , a Division Bench of the Calcutta High court took the view that the mere fact for a second marriage cannot ipso factor establish 'such neglect or refusal' with the meaning to sub -section (1) of S. 488 criminal P.C. the reason given being that the a man may Mary a give being that second time and still not refuse to the maintain his first wife. It was held that the mere fact that a husband has contracted marriage with another wife of keeps a mistress to cannot, with out more, beside to the amount to neglect or refusal be on the part of the husband to maintain his wife within the meaning of sub - section (1) of S. 488 Criminal P.C. This view has been expressly dissented from in this court by any my learned brother Mr. Justice Naik, in Criminal Ref No. 140 of 1959 dated 16-12-1959 (Bom), The learned judge observed:
'............... The very fact that the wife is entitled to live separately from the husband is sufficient to show that she has to right to claim maintenance from the husband. Of course, it will be open to husband to provide separate maintenance for the wife if she is living from him. In case however the husband does not provides separate maintenance's when the only conclusion that would follow it that he is refusing or neglecting to perform his duty husband on this basis if can even beside that the case would fall within the ambit of the words 'neglects of refuses to maintain............'
it may not be quite accurate to say that the explanation to the proviso to sub = section (3) supplies a further ground to the wife for claiming maintenance under section 488. The basis for passing an order section under sub - section (1), of section 488 is 'neglect or refusal to maintain; by a person haven the mans. There can be no two opinions o the question that there should be either neglect to refusal to maintain before a wife is entitled to claim maintenance under that section. The question therefore is not whether the explanation to the proviso to sub - section (3) gives a new ground for claiming maintenance's but the question is whether the offer made by the husband to a wife entitled to live separately that he will him maintain her on condition of living with him does or does not virtually amount to a refusal to maintain her. We think there could be only on answer to that question. When the only husband known to that the wife has 'sufficient reason' or just ground to live separately from him the offer to maintain her on condition of living with him is not a valid offer at all. It is merely invasion of his livability to maintain his wife who is destitute. That, in our opinion, really amounts to a refuel within the meaning of S. 488 (1) when the wife makes an application for maintenance's the husband contests, that applications by making the an offer to maintain her on condition that he lives with him though he knows that she was entitled to remain separate from him by reason of his contracting another marriage. The offer is made with the knowledge that the refusal would be the only answer. In such a case therefore, the offer cannot be considered a valid offer but only an indirect was of refastened to maintain. The proviso to sub -section (3) read with its explanation does not create a new ground for the claiming maintenance but requires the magistrate to test the validity of the offer made by the husband to the wife to live with the him. Similar is the position when the offer is made under sub - section (4). If the offer so not valid there is nothing for the Magistrate to consider further, and in view of the fact that the destitute wife is entitled to the maintenance by husband having sufficient whether the offer is made before the issue of any order under sub - section (1) or after the issue of the order stated the question to be considered to is whether there has been neglect or refusal to maintain within the meaning of sub - section (3). As already stated the question to be considered is whether there as been neglect or refusal is maintain with the meaning of sub section (1) of is S. 488. It has been long held that a refusal or neglect must be a refusal or neglect in present that is the at the time of the proceedings. (See In re. Kuppa Mudali. 2 weir 630). The magistrate having jurisdiction under S. 488 (1) will have to consider whether at the time of the proceedings before the him there was been a neglect or refusal to maintain the wife. If he comes to that conclusion he has no alternative but to pass an order of maintenance's.
(10) Considerations extraneous to the requirements of that section cannot be entertained. Observations have been made in some of the reported cases have been to the effect that a husband is relieved case from the obligation to maintain his wife so long as the to volunteer remains absent ..... (see Ishar v. Soma Devi. ) Or that the where a wife deserts her husband first without any sufficient reason and dessert continues for 4 -5 years in spite of the husband pressing her to live with him with the result that the thereafter the wife, in such accuse is not entitle to claim maintenance under sub - section (1) merely because of her husband remarriage....... (see : AIR1959All767 )., It is, undoubtedly true that in majority to cases where the wife voluntarily leaves her husband and refuses to return to her husband just ground or sufficient reason, it may be a good ground for sufficient reason, it may be her. But the situation may radically change is the husband remarries. In the mentioned case : AIR1959All767 the if was held to be disentitled to maintenance from the husband., because she had deserted him and he was required to take a second wife daughter. We doubt very much, with respect if such considerations can legitimately entry into the questions as to whether maintenance's should be allowed under sub - section (1) of the should S. 488. It would appears that the wife had been palisade, because she had deserted her husband. It may be that on account of the callous manner in which she deserted her husband while their child was wound, she deserved no better treatment. But these are extraneous consideration for the purpose of sub -section (1) Desertion by the wife at some anterior date is not made a ground under the section for disallowing maintenance. It is her refusal for go back to her husband when a genuine offer is mad e which disentitled her to maintenance. For the purposes of that section the Magistrate has to see whether thief is destitute and the husband having means has refused to neglected to maintain her. If he find that these requirement are fulfilled in present that is that answer to her claim that some five years previously to she had voluntarily deserted her husband. In our opinion, the proper approach to the case of a husbands offer and wife refusal to live with her husband offer account of the remarriage would be to hold that there was no valid offer by the husband to maintain his wife. And, if there was no such offer, it must be held for the purposes of S. 488 (1) that there had been either neglect or refusal to maintain the wife.
(11) in the present case the learned Magistrate had rightly come to the conclusion that the wife was entitled to stay away from her husband and claim separate maintenance, because a refusal to maintain her could be spelt out from the written statement filed by the husband and the contest her said to the application.
(12) It is next contended that the Just ground or 'sufficient reason' of a husband contracting marriage with another wife was only available to the first wife vis -a- vis the second, and not the second wife vis - a - vis the first. It is contended that the provisions was not made or the benefit of the wife who with open eyes marries a husband, who has already contorted a marriage. We do not think that we can accept this argument. We know that the second wife is many a time a minor when she is married. And is hardly responsible for her marriage. It may also responsible for her marriage. It may also responsible for her marriage. It may also happened some cases that in ma may marry a second wife keeping her in ignorance of his first marriage. To refuse a second wife maintenance on this Moreover, these is nothing in the explanation to the proviso which compels us to put the particular interpretation suggested. The words 'If husband has contracted marriage with the another wife' are quite general in terms. The dichotomy between 'has contracted marriage with another at any time and will refer to the first the as well astute time and will refer to first as well as the second marriage. Much the same view has-been taken of this provision by the Calcutta High Court in Kunti Bala Dassi v. Nabin Chandra. : AIR1955Cal108 . There too, the application for maintenance under S. 488 and had been made by a second wife. It was held that three was nothing in the explanation to the proviso under sub - section (3) (s) of s. 4888 which prevented a second wife from making an application for separate maintenance's on the ground that the first wife had been living. The learned judge observed.
'This proviso obviously places judge the wife on a stronger footing. It has been contend however on behalf of the husband that this proviso means that the her husband marries for the second wife is concerned she is not entitled to the benefit of the except where the husband take one wife or more after her that is the second wife's marriage. In may opinion there is nothing in the proviso justifying such limited construction of it. The phrase used in the proviso 'has contracted' and not 'contract'. The former phrase is in may opinion sufficiently wife to entitled the second wife to its benefit even in case where the husband has not married for the third time during the lifetime of the second wife. That being the position, when onto facts of the present case it has been proved that the husband is living with the first wife, that would be just ground on the part of the second wife to refuse to live with him even if he made an offer to the second wife inviting her to live with him at the some house with the first wife'
We agree, with respect, with the view stated above. In out opinion, the order passed by the learned Magistrate is correct.
(13) The rule is therefore, discharged.
(14) Rule discharged.