V.B. Raju, J.
1. This is a reference by the learned Sessions Judge Surat recommending that the order passed by the learned Joint Civil Judge (J.D.) & J.M.P.C. Olpad dismissing an application of a wife under Section 488 Criminal Procedure Code be set aside. The learned Magistrate held that the divorce alleged by the husband was not proved and held that the husband was possessed of sufficient means to make a monthly allowance to his wife. But he dismissed the application on the ground that there was no evidence to show that the husband ever refused to maintain his wife. The learned Magistrate observed that the wife sat silent for a long period of 17 years without taking recourse to any legal proceedings against her husband and made no demand for maintenance. He therefore observed that when there is no demand the question of refusal does not arise. He therefore held that the husband had not neglected or refused to maintain his wife and therefore dismissed the application.
The learned Government Pleader supports the reference but the Learned Counsel for the husband opposes the reference and relies on (1) Ramji Malviya v. Smt. Munni Devi : AIR1959All767 Smt. Bela Rani v. Bhupal Chandra : AIR1956Cal134 (3) The State v. Mt Anwarbi and Ors. A.I.R. 1953 Nagpur 133 (4) Jshar v. Soma Devi and (5) In Re Gulabdas Bhaidas I.L.R. 16 Bombay 269 at p. 275. His contention is that the question whether the husband had married a second time is irrelevant under Sub-section (1) of Section 488 Cri.Pro.Code and that that is relevant only under Sub-section (3) of Section 488 Cri. Pro. Code. Admittedly the husband in this case had married a second wife some years ago and some six months after the wife (applicant) left the husband. But according to the wife she left the husband because she was cruelly treated by him. There was no inquiry or finding on the fact of cruelty although the learned Magistrate observes that for several years the married life of the parties was happy.
Section 488 of the Criminal Procedure Code consists of 5 sub-sections and between Sub-section (3) and Sub-section (4) there is a proviso an explanation and a second proviso. It is therefore clear that the proviso explanation and the second proviso are provisos and explanation to Sub-section (3) and not to the whole section. Sub-section (3) reads as follows:
If any person so ordered fails without sufficient cause to comply with the order any such Magistrate may for every breach of the order issue a warrant for levying the amount due in manner here in before provided for levying fines and may sentence such person for the whole or any part of each months allowance remaining unpaid after the execution of the warrant to imprisonment for a term which may extend to one month or until payment 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 or refusal stated by her and may make an order under this section notwithstanding such order 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.
Provided further that no warrant shall be issued for the recovery of any amount due under this section unless application be made in the Court to levy such amount within a period of one year from the date on which it became due.
2. It is true that the words order under this section are to be found in the first proviso between Sub-section (3) and Sub-section (4). The marginal note of sub-sec.(1) is order for maintenance of wives and children. The second marginal note reads as enforcement of order and it appears to be the marginal note of Sub-section (3). Sub-section (3) begins by saying that if any person so ordered to give any maintenance allowance under sub Section (1) fails without sufficient cause to comply with the order. Then it proceeds to explain the words without sufficient cause. The first proviso deals with a case where the husband offers to maintain his wife on condition of her living with him. Admittedly the Legislature thought that that was a sufficient cause namely that the husband offered to maintain his wife on condition of her living with him. Therefore the first proviso is a proviso to Sub-section (3) and in particular it explains the words fails without sufficient cause. The expression make an order under this section notwithstanding such offer has reference to the order under Sub-section (3) and not to the order under Sub-section (1). When an order under Sub-section (1) is to be made is completely explained in subsec. (1) and Sub-section (4) is a sort of proviso to Sub-section (1). Sub-section (3) is not a proviso to Sub-section (1) because it deals with enforcement of order after it has been passed whereas Sub-section (4) provides that No wife shall be entitled to receive an allowance from her husband under this section if 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. It is a proviso to Sub-section (1) Sub-section (5) also deals with what the Magistrate has to do after passing an order in cases where the wife is living in adultery or without sufficient reason she refuses to live with her husband or the parties are living separately by mutual consent. Sub-section (5) therefore deals with the factors to be considered for canceling the order. It is therefore clear that the proviso the explanation and the second proviso between Sub-section (3) and Sub-section (4) govern Sub-section (3) alone and not Sub-section (1). The same view has been taken in Dewan Singh v. Harbans Kaur For the purpose of Sub-section (1) the Court has got to see whether it is proved that the husband had neglected or refused to maintain his wife or children as the case may be such a refusal and neglect may be due to any reason. Such a refusal or neglect may precede or succeed the second marriage of the husband. The factum of second marriage and the factum of the wife refusing to live with her husband are both relevant and important when considering what order to be passed for enforcement of the order passed under Sub-section (1) and whether a warrant should be issued under the provisions of Sub-section (3). But the fact of second marriage may be relevant for the purposes of Sub-section (1) of Section 488 Cr.P.Code in view of the provisions of Sub-section 4 which reads as follows:
No wife shall be entitled to receive an allowance from his husband under this section if she is living in adultery or if without any sufficient reason she refuses to leave with her husband or if they are living separately by mutual consent.
3. In view of the provisions of Sub-section (4) the fact that without any sufficient reason the refuses to live with her husband is relevant on the question of passing an order under Sub-section (1). But before a wife can claim for maintenance under Section 488 Criminal Procedure Code she must prove neglect or refusal on the part of the husband to maintain her. But if the husband proves that the wife was living in adultery or that without any sufficient reasons she refuses to live with the husband then no order under sub-sec.(1) can be passed. In A.I.R. 1959 Allahabad 767 the Allahabad High Court has taken the same view in regard to the provisos. For the purpose of Sub-section (1) and to justify an order for maintenance there must be a refusal or neglect on the part of the husband to maintain his wife whatever be the reasons for such neglect or refusal. If there is such a neglect or refusal it is not necessary to go into the reasons unless the reasons have a bearing on Sub-section (4). If there is such neglect or refusal it is not necessary that there should be other circumstances such as second marriage.
The Calcutta High Court has observed as follows in A.I.R. 1956 Calcutta 134:
It is not permissible to read into the explanation added to first proviso 10 Sub-section (3) of Section 488 anything more than what it says in the context of the first proviso to Sub-section (3). In that view it would not be permissible to pray in aid the provisions of the Hindu Married Women's Right to Separate Residence and Maintenance Act for the purpose of construing Sub-section (1) of Section 488 Cri. Pro. Code.
Whatever might be the personal law of any wife she must in order to entitle her to an order under Sub-section (1) of Section 488. Criminal P. Code establish inter alia that there is a present neglect or refusal on the part of her husband to maintain her. The mere fact of a second marriage cannot ipso facto establish such neglect or refusal within the meaning of Sub-section (1) of Section 488 Criminal P. Code for a man may marry a second time and still not refuse to maintain his first wife. The mere fact that a husband has contracted marriage with another wife or keeps a mistress cannot without more be said to amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of Sub-section (1) of Section 488 Cri. P.C.
With respect I agree with these observations. Sub-section (1) of Section 488 Cr. P.C. provides that if the husband neglects or refuses to maintain his wife an order should be passed under Sub-section (1) subject to the provisions of Sub-section (4). The fact that a person having sufficient means neglects to maintain his wife is sufficient to justify an order under subsec. (1) provided the conditions of Sub-section (4) are not satisfied. On the question of making an order the fact that the husband married second wife is without more irrelevant. That may be relevant on the question under Sub-section (4) namely on the question whether without any sufficient reasons the wife refuses to live with her husband. The husband may marry a second wife and still send regularly maintenance to his first wife. In such a case he would not be guilty of any neglect or refusal to maintain his first wife and no order can be passed under sub-sec.(1). The contention of the Learned Counsel firth wife that the mere fact that the husband has married a second wife is sufficient for passing an order under Sub-section (1) cannot be accepted. The Learned Counsel relies on Smt. Maiki v. Hemraj : AIR1954All30 where it is observed as under:
No other ground for refusal to live with the husband need be looked into if there is the good ground of husbands contracting another marriage for the wife's refusal to live with her husband. The fact that the wife came once or twice to live with her husband even after his remarriage does not improve matters in favour of the husband.
4. The learned Judge of the Allahabad High Court considered the question of second marriage on the question whether the wife had sufficient reason to live separately from the husband. They have not observed that the mere fact of a second marriage is sufficient to justify an order for maintenance under Section 488 Cr. P.C. A husband may marry a second wife and still regularly maintain his first wife. Unless there is a neglect or refusal on his part to maintain the wife no order can be passed under sub-sec.(1) of Section 488 Cr. Pro. Code. In this connection a distinction may be made between neglect to maintain and failure to maintain. Sometimes failure to maintain a wife may amount to a neglect and sometimes it may not amount to neglect depending on the circumstances of each case. But before there is a refusal there must be a demand. There may be neglect to maintain a wife whether there is a demand or not. On the point of neglect it is not necessary that there should be a demand on the part of the wife although the fact that the wife had made a demand for the maintenance would always be relevant on the question of neglect. As observed by the learned Judge of the Nagpur High Court (In A.I.R. 1953 Nagpur 133.
The mere fact that a husband has married again does not entitled the wife to maintenance although it has to be regarded as just ground for her refusal to live with him. She may be justified in not living with him since his remarriage; but even then if she fails to show that he has neglected or refused to maintain her she is not entitled to separate maintenance as refusal or neglect to maintain constitutes the basis for the exercise of jurisdiction by a Court under Section 488.
The same view has been taken in A.I.R. 1959 Punjab 295 and in A.I.R. 1960 Punjab 595 Mst. Dhan Kaur v. Niranjan. In A.I.R. 16 Bombay. 269 it has been held as under:
The Magistrate has not found that the applicant either neglected or refused to maintain the complainant nor has he found that the complainant is the wife of the applicant. In the course of the case the applicant offered to maintain the complainant on condition that she jived with him. She refused that offer, because in the present proceedings the applicant denied the validity of the marriage ceremony that took place between him. and the complainant twenty-five years ago. Such a ground of refusal is not in my opinion sufficient to justify the Magistrate in making and order under Section 488 notwithstanding the offer.
5. But the question of neglect or refusal always one of fact. But the question whether when the husband says that he will maintain his wife provided she stays with him and he will not maintain her if she lives separately from him he can be said to refuse to maintain his wife would be a different question. What the husband says about the future is immaterial for purposes of Sub-section (1) even if it is material for purposes of Sub-section (3). For purposes of Sub-section (1) we have to see whether there has been a neglect or refusal to maintain the wife on the date of the application. In the case of an offer by the husband to maintain his wife provided she stays with him if the husband has married a second wife the wife is entitled to live separately and the husband is bound to provide maintenance for his wife even if she refuses to live with him. A wife who is entitled to maintenance under Sub-section (1) is not disentitled to maintenance under Sub-section (4) if she refuses to live with her husband who has married a second time. In the instant case the husband has married a second time. But even in such a case it must be proved that either the husband has refused to maintain his wife or neglected to maintain the wife. In this case there was failure to maintain the wife and neglect can be presumed because even after the suit was filed the husband refused to maintain his wife. The husband filed a written statement in which he contested the application for maintenance. In the written statement it was stated by the husband that he was willing to maintain the petitioner if she was proved to be the wife of the opponent. The filing of such a written statement would not obliterate the neglect to maintain the wife or refusal to maintain the wife prior to the application.
6. For the above reasons I hold that in this case there has been a neglect and refusal on the part of the husband to maintain his wife and the learned Magistrate was wrong in not passing an order for maintenance. The reference is therefore accepted and the learned Magistrate is directed to pass an order for maintenance after fixing the rate of maintenance allowance having regard to the evidence.