1. This is a revision petition which has been filed against the order of the City Magistrate, Bangalore, dismissing the petitioner's application for maintenance against her husband under section 488, Criminal P. C. The respondent though served is absent and unrepresented.
2. I think this is a clear case in which the respondent is bound to give maintenance to the petitioner. Admittedly the respondent has been writing letters to the petitioner's brother asking for money. The learned Magistrate has tried to make some distinction between requests for money and demands for the same which is really of no substance where the person asking is a son-in-law of the family who is postponing taking his wife to live with him. In Ex. p-6 the respondent has 'cautioned' the petitioner's brothers not to be 'beggarly' and 'ridiculous' when arranging for nuptials and that if they do not spend 'a few hundreds' 'the consequences will be very undesirable'. In Ex. p-8 he has written a registered letter to his wife that if within 15 days after its receipt her parents and guardians do not come to settlement after satisfying all the conditions of remarriage promises he will be at liberty to marry again after treating the marriage of the petitioner as completely cancelled and he has referred her to some earlier letter in which fie had set out what the terms of the remarriage were. He has not even stated in Court what those promises were and he has admitted in his evidence that 'no financial promises were made before marriage'.
3. Apparently the respondent has not taken the petitioner to live with him as he feels that some pre-nuptial promises between himself and the girl's mother were not fulfilled. If the petitioner's mother had made such promises before the marriage it was for him to have claimed them from her and not made it a pretext for neglecting or refusing to take the petitioner to live with him and to maintain her as his wife. The learned Magistrate appears to have viewed this conduct of the petitioner rather lightly which I am not prepared to do. The respondent has married a second wife thereby ruining the life and prospects of the petitioner, a young girl who has no father. She appears to be a girl of some education and the respondent has made her an innocent victim of some mercenary differences between her mother and himself. He has not even suggested anything against the petitioner or her behaviour and had no complaint at all to make about her. The offer of the respondent to take back the petitioner and live with her appears to me in the circumstances of this case to be thoroughly wanting in bona fides.
4. Moreover under Section 488 Clause (3), Criminal P. C. as amended in 1949 and now in force in Mysore, if a husband contracted a marriage; with another, wife it shall be considered to be a just ground for the first wife's refusal to live with him. Even in Mysore Section 23 of the Hindu Law Women's Rights Act provides that if a man marries a second wife ho is bound to maintain his first wife separately and pay her maintenance. I think in these circumstances the respondent is clearly liable to pay separate maintenance.
5. A reference has been made in these proceedings to a suit pending between the parties and probably some of these matters will have to be gone into again in that suit. I do not therefore wish to go in greater detail into the facts and the circumstances of the case.
6. In a case reported in -- 'Senapathi Mudaliar v. Deivanai Ammal' : AIR1950Mad357 (A), Panchapakesha Ayyar J. has held that an order awarding separate maintenance to the first wife is correct and proper where the husband has married again and his offer to take the first wife back and treat her well cannot be said to be sincere. He has observed:
'Even if he takes her back, he will only make her an unpaid cook and maid for all work of himself and his second wife, an intolerable position and one to which no Court should drive a married woman.'
7. As regards the rate of maintenance the petitioner has claimed Rs. 75/- a month which is clearly excessive. The respondent appears to be getting a basic salary of Rs. 80/- and is according to himself getting Rs. 100/- including allowances. The petitioner who is still very young must have a sufficient amount awarded to her monthly to maintain herself without at the same time too heavily burdening the respondent. In his evidence he has stated that he has a mother and two younger brothers and a sister and the second wife to maintain. The existence of the second wife cannot be a good reason to cut down the first wife's maintenance. As pointed out in -- 'E.C. Kent v. E.E.L. Kent' AIR 1926 Mad 59 (B) if a man has the luxury of more wives than one his liability to maintain them is not lessened thereby and under Section 488, Criminal P. C. the husband is under a personal obligation to maintain his wife and the rate to be fixed depends on the needs and requirements of the person who is to receive the maintenance as well as on the present means and the earning capacity of the person who is bound to pay the same. I would fix Rs. 30/- a month which I think is reasonable in this case taking into account all the circumstances. The same shall be payable from the date of the application for maintenance.
8. In the result this petition is allowed and the order of the lower Court is set aside and there will be an order directing the respondent to pay the petitioner maintenance at Rs. 30/-per month from the date of her application before the City Magistrate.
9. Application allowed.