1. This revisional application at the instance of one Kunti Bala Dasi who is the second wife of opposite party Nabin Chandra Das is directed against an order passed by a Magistrate on 13-10-1953 cancelling under Section 489 (2), Criminal P. C. the order of maintenance passed in her favour under Section 488 of the Code on 31-1-1953. It appears chat on 31-1-1953 after contested proceedings, maintenance at the rate of Rs. 30/- per month was allowed in favour of the present petitioner against her husband opposite party Nabin Chandra Das. On 13-8-1953, however, Nabin Das obtained against the present petitioner a decree for restitution of conjugalrights. It was a contested decree. No maintenance was paid by Nabin Chandra Das to the present petitioner in terms of the order passed in her favour on 31-1-1953.
Thereafter, the petitioner initiated proceeding for execution of the decree and while showing cause in these proceedings the husband opposite party submitted that in view of the decree obtained by him against the present petitioner for restitution of conjugal rights, the order for maintenance passed on 31-1-1953 should be cancelled. The learned Magistrate accepted this contention and cancelled the order of maintenance passed under Section 488, Criminal P. C. In doing so, he purported to follow a decision of this Court in the case of -- 'Tarab Nath Dhar v. Sneharani Dharr', AIR 1949 Cal 87 (A), which was decided in 1946 by a Judge of this Court. In that case it was held that the effect of a decree for restitution of conjugal rights against the wife (even thought ex parte) is that the wife is refusing without sufficient reason to live without the husband and in these circumstances, a previous order of maintenance under Section 488 is liable to be cancelled unless other circumstances have arisen since the date of the decree.
This view of the learned Judge goes against the decision made by a Division Bench of the Bombay High Court in the case of -- 'Fakruddin Shamsuddin v. Bai Jenab', AIR 1944 Bom 11 (B). In that case if was pointed out by Chief Justice Beaumont that it is not correct to say that the Magistrate is bound under Section 489(2) to cancel the maintenance order made in favour of the wife under Section 488, because a Civil Court has made an order for restitution of conjugal rights in favour of the husband. It was further pointed out that the mere fact that the Civil Court is satisfied on the point that the husband is prepared to offer the wife a home, which she ought to accept, does not justify the Magistrate in surrendering his own discretion and that the Magistrate is entitled to decline to revoke the maintenance order under Section 488, Criminal P. C., when there is no evidence before him as to what home the husband was prepared to offer the wife.
With all respect to the views of Lodge J. in Tarak Nath Dhar's case (A)', I am inclined to agree with the views of Chief Justice Beaumont in the Bombay case. Both the cases, however, it will be observed, were decided before the amendment of Sub-section 3 of Section 488, Criminal P. C. was made by Act IX of 1949. In that year, that is in 1949, the following proviso was inserted in Sub-section 3:
'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 proviso obviously places the wife on a stronger footing. It has been contended, however, on behalf of the husband that this proviso means that its benefit can be taken only by the first wife when her husband marries for the second time and that so far as the second wife is concerned she is not entitled to the benefit of it except where the husband takenone wife or more after her (that is the second wife's) marriage. In my opinion, there is nothing in the proviso justifying such limited construction of it. The phrase used in the proviso is 'has contracted' and not 'contracts'. The former phrase is, in my opinion, sufficiently wide to entitle 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 on the 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 withhim at the same house with the first wife.
2. In this view of the matter I cannot help observing that the learned Magistrate has, to use the words of Chief Justice Beaumont, 'surrendered his own discretion' simply because the husband was armed with a Civil Court decree for restitution of conjugal rights. I have gone through the judgment of the Civil Court myself and I find that that judgment did not proceed on the basis of what is being contended now as justifying the refusal on the part of the second wife to live with the husband. In these circumstances I am unable to uphold the order passed by the learned Magistrate on 13-10-1953 cancelling under Section 489(2), Criminal P. C. the order of maintenance passed under Section 488, Criminal P. C.
3. The order in question is accordingly set aside. It will be for the learned Magistrate now to take appropriate steps under Sub-section 3 of Section 488, Criminal P. C. for enforcement of the order of maintenance which has been already passed.
4. The Rule is made absolute accordingly.