G.K. Misra, C.J.
1. Kausalya (opposite party) is the wife of Jadab Chandra Pradhart. (petitioner). She filed an application on 29-11-1972 for maintenance at the rate of Rs. 400/- ,per month under Section 488 of the Code of Criminal Procedure. 1898. Her case is. that about seven to eight years-back the (petitioner kept Sulochana Dei as a mistress and diverted his love towards her. He gradually neglected the-opposite partv who was not given due-respect and status as a house-wife. She-was assaulted and abused in filthy language under the influence of his mistress. He was a man of means and had sufficient capacity to pav maintenance at the-rate of Rs. 40Q/- pe-r month to her.
The petitioner filed a written statement. He asserted that he did not neglect or refuse to maintain the ODDosite' party and that he did not assault or abuse her. The allegation in paragraph 2 of the petition for maintenance that the-husband accepted mistress named Sulo-chiana Dei was not controverted in the-written statement.. He expressed his-willingness to receive the opposite partv in his house. As to Quantum of maintenance the petitioner was willing to oav Rs. 80/- per month.
2. Opposite party examined three-witnesses including herself. The petitioner did not examine any witness but merely produced some documents as to1 his properties. The learned Sub-divisional Magistrate after careful discussion of the evidence came to the conclusion.' that the petitioner neglected the opposite party and that he is also liable to pay-maintenance as he married a second wife. He granted, maintenance at the rate of Rs. 100/- per month. As the application* for maintenance had been filed on 29-11-1972 he granted arrears of maintenance for thirteen months from 29-11-1972 till 29-12-1973. The iudgment was delivered' on 11-1-1974. It is against this order grantih? maintenance that the husband' has filed this revision.
3. Though in the application for maintenance it was stated that Sulochana was the mistress of the petitioner the-finding of the learned Magistrate is that it was admitted before him that the petitioner married Sulochana and she was the-second wife. Mr. P. K. Das. the learned Advocate for the .petitioner, argued the* case on the footing that Sulochana is the second wife of the petitioner. The quantum of maintenance at the rate of Rs. 100 per month is not challenged.
4. Mr. Das raised the following contentions;
(1) The evidence on record does not justify the conclusion of the learned Magistrate that the ipetitioner negle'cted or refused to maintain the opposite party.
(ii) No maintenance can be granted under Section 488, Criminal P. C. merely on the ground of second marriage unless it is further proved that the petitioner neglected or refused to maintain the opposite party.
(iii) Even if the opposite partv is held to be entitled to maintenance and separate residence she cannot live at her father's house but she must live in a house as selected bv the husband.
. 5. The first contention has no substance. Kausalva (P. W. 3) boldlv stated in her evidence that she was assaulted, abused and ill-treated bv the petitioner after his association with Sulochana. She stated that the atmosphere was made so hot for her that it was impossible for her to stav with' the petitioner and she was forced to leave her husband's house and live in the house of her .parents. Ttfe petitioner did not venture to pledge his solemn testimony to countermand the evidence of P.W. 3. On 'the evidence of P.W. 3 alone the conclusion of the learned Magistrate that the .petitioner neglected and refused to maintain his wife is sustainable. Kausalya's statement is further corroborated bv the evidence of P. Ws. 1 and 2. The flndinf of the learned Magistrate is unassailable.
6. Even assuming that no evidence had been adduced that the petitioner neglected or refused to maintain Keu-salya the question for consideration is whether marrying a second wife or keeping a mistress by itself is enough to entitle the wife to maintenance even in the absence of proof of negligence or refusal on the part of the husband to maintain the wife.
7. Section 488, Criminal P. C. so far aa relevant, runs thus:
488. Order for maintenance of wives and children- (1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable 'to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class may. uipon proof of such nealect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as Magistrate from time to time directs.
(2) Such allowance shall be payable-from the date of the order, or if so ordered from the date of the application far maintenance.
(3) Enforcement of order.- If any person so ordered fails without sufficient cause to comply with the order, anv such magistrate may, for every breach of the-order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence-such person, for the whole or any part of each month's allowance remaining unpaid' after the execution of the warrant, to-imprisonment for a term which xna-v extend to one month or until aavment if sooner made:
Provided that, if such person offers to-maintain his wife on condition of her living with him. and she refuses to live-with him, such Magistrate may consider any grounds of refusal stated by her. and may make an order under this section notwithstanding such offer, if he is satisfied that there is iust ground for so doing :
If a husband has contracted marriage-with another wife or keeps a mistress it: shall be considered to be iust ground for his wife's refusal *to live with him:
Provided, further, that no warrant shall be issued for the recovery of anv amount due under this section unless application be made to the Court to levy such amount within a period of one vear, from the date on which it became due. XX XX XX
It was contended bv Mr. Das, that Section 488 (1) which is the substantive provision for maintenance does not enioin that the mere fact of contracting marriage with another wife or keeping a mistress shall be considered to be a iust around for the wife's refusal to live with the husband. Such a provision is made only in Sub-section (3) which deals with enforcement of the order passed under Section 489 (IV In support of this contention he Places reliance on (J971) 37 Cut LT 954. (Jonar-dhan Dondasena v. Smt. Tulusa Devi) and (1973) 2 Cut WR 1161. (Makra Maihi v. Mati Dei). Both the decisions are Single Judge decisions - the 'first one was rendered bv B. C Das. J. and the second one bv Panda. J. These two decisions undoubtedly support the contention of Mr. Das that the mere fact of a husband contracting marriage with another wife-or keeping a mistress shall not be considered to be a iust ground for the wife's-refusal to live with the husband.
8. It is unfortunate that the attention of the learned Judges was not drawn to earlier decisions of this Court-taking a contrary view. In (1955). 21 Cut' LT Paniarahi, Section 4, in 29 Cut LT 370. (Mt. Pratima v. Gouranea Sahu) Narasim-ham, Section 4 and in (1970) 36 Cut LT 1083, (Dayanidhi Singh v. Raukmani Dei) Acharya. J. had clearly held that the wife is entitled to refuse to live with the husband, and ask for maintenance and separate residence if the husband contracts marriage with another wife or keeps a mistress. Law is well settled that a Single Judge cannot take a view different from an earlier Single Judge decision. If. however, a learned Single Judge doubts the correctness of an earlier Single Judae decision, then he should refer the matter to a larger Bench for considering the correctness of the earlier view. If such a step is not taken and divergent views are prevalent, than the subordinate Courts would follow the earlier view in preference to the later view, If the matter had stood thus, I would have been constrained to refer the matter to a larger Bench for considering the correctness of the view expressed in (1971) 37 Cut LT 954 and (1973) 2 Cut WR 1161 which are not in consonance with what has been laid down in Section 488 (3). Any view laving down that husband's contracting mar-Tiage with another wife or keeping a mistress shall not be considered to be a ground for his 'wife's refusal to live with him and to claim maintenance would make the specific provision in Sub-section (3) redundant.
9. It is, however, not necessarv to refer the case to a larger Bench as the matter is concluded by : 1974CriLJ1089 . (Deochand v. State of Maharashtra). Therein their Lordships referred to Section 488 (3). Criminal P. C. In that case the husband had contracted a second marriage with one Kamala. The 'first wife prayed for maintenance on the strength of Section 488(3). Their Lordships accepted her stand. In view of the pronouncement in : 1974CriLJ1089 . (19711 37 Cut LT 954 and 1973) 2 Cut WR 1161 can no longer tie treated as good law and it is not, therefore, necessary to refer the matter to a larger Bench.
10. The last contention urged is that the opposite partv cannot be permitted to live with her parents even if she is entitled to separate residence and maintenance and she must live in a house selected bv the husband. The contention is also untenable. The idea of granting opposite partv the relief of separate residence and maintenance is that after the contraction of the second marriage the husband is no longer entitled to the opposite party's bed. Though notionally the marital status continues the husband is not entitled to the association and en--ioyment of the bodv of the opposite party. It is open to her to live anvwhere she chooses.. No restriction can be imposed on her movement. The only restriction can be imposed by law is that she would not resort to adulterv in which case the maintenance granted to her may be cancelled.
11. There is no force in any of the contentions urged on behalf of the petitioner. The revision is dismissed.