1. This is a petition arising out of an application for maintenance by a wife against her husband. The applicant stated in her petition under Section 488, Cr. P. C. that she was married to the opponent Babu Lal in Samvat 1993; that three years after her marriage the non-applicant Babu Lal contracted a second marriage with one Mt. Pancho and that after his second marriage Babu Lal at the instigation of Mt. Pancho began to illtreat her; that when in Samvat 2005 a son was born to the petitioner from Babu Lal, the illtreatment increased and her husband frequently beat her arid starved her and her child of the necessary clothing and food. The petitioner further stated that on 26.5.50 Babu Lal told her to remain at the service and attendance of his second wife and not to accept any food or clothing from her parents and then subsequently beat her with shoes and drove her out of the house.
Babu Lal admitted that the applicant was his wife and that he begot a child from her in Samvat 2005. He also admitted that he had contracted a second marriage with Mt. Pancho. But he denied the allegation that he was illtreating the petitioner or that he had asked her to leave his house.
2. The Sub-Divisional Magistrate Kolaras before whom the applicant presented her petition found that the non-applicant Babu Lal might have given a beating to the applicant on one or two occasions and might have displeased her, but that this sort of conduct on the part of a husband was not unusual in 'this Country or society.' The learned Magistrate further held' that the applicant had failed to prove that Babu Lal beat her on the night of 26.5.50 and drove her out of the house. The Magistrate was inclined to think that Mr. Gunni herself left the counter-petitioner's house on 9.7.50. He gave no finding as to whether after this date, Babu Lal neglected or refused to maintain her.
The Magistrate however observed that the petitioner used to live with her husband and child in, a separate house and that while she was living with him Babu Lal provided her with adequate food and clothing. On these findings the learned Magistrate refused to pass an order directing the counter-petitioner, to pay his wife & the child of 2J years of age any amount by way of maintenance. The /petitioner then applied to the Sessions Judge of Guna for a revision of the order of the Magistrate. The learned Sessions Judge agreed with the findings of the, (Magistrate and rejected the revision petition. The applicant has now come up in revision to this Court.
3. After hearing the learned Counsel for the parties, I have formed the opinion that the order of the Magistrate dismissing the applicant's petition for maintenance, cannot be sustained. Both the learned Sessions Judge and the Magistrate appear to have ignored altogether the fact that a wife seeking maintenance under Section 488 has to prove neglect or refusal on the part of her husband to, maintain her and her child who is unable to maintain herself to that she is not required to establish cruelty oh he facet of her husband, although erectly may be proved as a lust ground for the wife's refusal to stay with her husband. The Courts be, low also lost sight of the amendment effected In 1948 to Sub-clause 3 of Section 488, Cr.P.C. the Criminal Procedure (Amendment) Act, 1949. By this amendment it is now provided that if a husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be this ground for his wife's refusal to live with him. In the present case the marriage of the pitiable with the non-applicant Babu Lal is admitted. Babu Lal also admits his second marriage with Mt. Pancho. He also, admits that he has a son aged about 21 years from the applicant. Before me it is also not denied on behalf of the counter-Petitioner Babu Lal that the applicant Mt. Gunni ceased to live with her husband a few days prior to the filing of the application under Section 488 before the sub-Divisional Magistrate Kolaras and has been since then living along With her son at her parents' residence and that after the applicant's leaving, her husband's residence, the husband has not maintained her and the child. Babu Lal has said in his statement that the applicant is not entitled to any maintenance if she lives separate from him. Babu Lal's father also says is his evidence that if the applicant is willing to live in his house, as other members of the family do, then he and his son are prepared to maintain her and the child.
4. The question, therefore, that arises for determination on these facts is whether in view; of the amendment made in Section 488(3) the petitioner is entitled to any maintenance allowance for herself and for her child on the sole fact of her husband's second marriage, without proving cruelty on her husband's part as a, ground for refusal to live with him. Learned cruised for the petitioner, argues that under the amended Clause 3 of Section 488 the fact that the counter petitioner has married a second, wife is in itself a just ground for the applicant's refusal to live with her husband Babu Lal and that, therefore, on the admitted facts of the present case she is entitled to claim maintenance from her husband for herself and for her child. On behalf, of the non-applicant, it is contended that the amendment would apply only to those cases where the husband has after the amendment contracted marriage with another wife, or taken a mistress.
I am unable to accept the contention advanced on behalf of the non-applicant. There is nothing in the Criminal Procedure (Amendment) Act, 1949 to show that it would not be a just ground for the wife's refusal to live wither husband if the husband has contracted marriage with another wife or taken a mistress before, the amendment made in Section 488. Before the amendment, the fact of the husband's marrying a second wife or keeping a mistress was not by some High Courts considered a just ground for the first wife's refusal to live with him, although it was taken into account in considering whether the husband's offer to maintain his first wife was really 'bona fide' or not.
The amendment is clearly intended to put an end to an unsatisfactory state of law, utterly inconsistent with the progressive ideas of the status and emancipation of women, in which women were subjected to a mental cruelty of living with a husband who had taken a second wife or a mistress on the pain of being deprived of any maintenance if they chose to live separately from such a husband. In my view to hold that the amendment is intended to afford a just ground for the wife's refusal to live with her husband only in those cases where he has after, the amendment, taken a second wife of a mistress is to defeat in a large measure the very object of the amendment.
it is also clear from Sub-clauses (1) and (3) at Section 488, Criminal P.C., that in considering whether the husband's second marriage or his concubinage is a just ground for the wife's refusal to live with him, the material point of time is the time of the refusal of the wife 6 live with her husband and not the time of contracting a second marriage or taking a mistress. I do not think it can be argued with any degree of force that as the non-applicant married a second wife long before the amendment, he had, therefore, acquired a vested right of taking advantage of the provisions of Section 488 (3) as they stood before the amendment and that the fact of his second marriage cannot afford a just ground for the applicant's refusal to live with him.
Mt. Gunni applied before the Sub-Divisional Magistrate on 31.5.1950 that is nearly one year after the amendment in Section 488(3). She had not applied for any maintenance before the Criminal Procedure (Amendment) Act, 1949 came into force. If she had, then the opponent could have availed himself of the advantage given to him by Sub-clause 3 of Section 488 as it was before the amendment. But in my opinion the opportunity of availing himself of a statutory advantage cannot be treated as an acquired right it is, stated in Halsbury's Laws of England, Volume 31, p. 517, that:
A mere right existing at the date of a repealing statute to take advantage of the provisions of the statute repealed is not a right accrued.
In Abhqtt v. The Minister For Lands (1895) AC 425, it is observed:
The mere right (assuming to be properly so-called) existing in the members of the community or any class of them to take advantage of an enactment without any act done by an individual towards availing himself of that right, cannot properly be deemed a right accrued within the meaning of the enactment.
5. I am therefore, inclined to think that in the present case the petitioner is entitled to urge her husband's second marriage as a just ground for her refusal to live with him. It seems to me that the petitioner has established satisfactorily her claim to maintenance for herself and her child. The petitioner claims a monthly allowance of Rs. 100/-. The amount claimed by the petitioner appears to me proper. It is in evidence and the learned Magistrate has also found that the income of the family of which the opponent Babu Lal is a member is about Rs. 2000/- p.m.. That toeing so, I am of the opinion that a maintenance of Rs. 100/- per month to the petitioner would be a reasonable maintenance allowance for herself and for her child. I, therefore, direct the counter petitioner Babu Lal to pay monthly allowance at this rate to the petitioner with effect from the date of the order of the Sub-Divisional Magistrate that is 8.1.1951.