Amaresh Roy, J.
1. This is a Reference made by the learned Sessions Judge of Midnapore under Section 438 Cr. P. C. recommending that the order passed by the learned Magistrate dismissing an application made before him by a wife under Section 488 Cr. P. C. for maintenance allowance should be set aside and a proper order made on that application. The wife's application was made in the court of the learned Magistrate on 23rd of August, 1961 alleging therein that the petitioner had been married to the opposite party about 12 years ago and had borne three children to him. Unfortunately two of those children, that is, the eldest and also the youngest who were the two sons, have died and only a daughter now aged about eight or nine years is now alive. During her stay in the husband's place the wife was taken ill of certain diseases. During that time also the husband had already brought a mistress and latterly the husband has married a second wife. Due to her illness the petitioner was treated in the hospital and her father bore the expenses of the treatment because the husband did not arrange for it. Thereafter the petitioner has been living with her father, and her husband has neglected and also refused to maintain her. There was also allegation of ill-treatment by the husband to her physically during her stay in his place. There was evidence adduced on both sides both in support of the allegations made by the wife and also the denials thereof by the husband. In his defence the husband had also suggested unchastely to the wife, but that was not supported by any substantive evidence. Evidence was also given on behalf of the petitioner regarding financial capability of the husband and on the side of the opposite party there was evidence to minimise the income. The learned Magistrate had those [sic) evidence before him but unfortunately by an erroneous notion, of law the learned Magistrate dismissed the application under Section 488 although what he has said in his order clearly shows that he himself had found that there had been ill-treatment as a fact, which the learned Magistrate thought was provoked by the wife's behaviour. About that behaviour the learned Magistrate indulged in sentimental effusions forgetting that the allegation on behalf of the husband that the youngest child had died for want of breast feeding due to the absence of the mother is no more than an allegation and also that the degree of cruelty may be a good reason for even an affectionate mother for not venturing to go to the husband's place to nurse a baby child. The learned Magistrate completely overlooked the admitted fact of a second marriage by the husband which fact by the amended Section 488 provides just ground for the wife for the wife's refusal to live with the husband. He misunderstood certain decisions of this Court to think that it was said in one of them that the fact of a second marriage by the husband would itself spell out refusal or neglect to maintain a wife, in another, supported by a Division Bench contrary was held. In that form none says so. What the law, as it stands now, says, is, in effect that the fact of a second marriage provides just ground for the wife's refusal to live with the husband, and if the husband either neglects or refuses to maintain the wife at that separate residence, that amounts to the neglect and refusal mentioned in Sub-section (1) of Section 488 Cr. P. C. In the present case the fact of the second marriage is an undisputed fact admitted by the husband in the witness-box and the husband has also asserted in the witness-box that he is not willing to maintain at her separate residence by pleading that he has no means to do so. In that stages of evidence before the learned Magistrate the husband's plea that he had endeavoured to take back the wife to his place is of no avail as a defence to the claim of maintenance.
2. The learned Sessions Judge in making this Reference has pointed out the erroneous notion of law from which the learned Magistrate was suffering. The teemed Judge has also pointed out that there is clear and cogent evidence to hold that the wife is entitled to a maintenance allowance under Section 488 Cr. P. C. I agree with that view of the learned Judge regarding the evidence in the present case. With regard to the quantum of allowance to be awarded to the wife the learned Sessions Judge has not, however, said anything in his letter of Reference. With the aid of the learned Advocate Mr. Basanta Kumar Panda who appeared to oppose the Reference on behalf of the husband, I have carefully examined the evidence regarding the financial capacity of the husband. It, appears that the evidence on the side of the wife that the husband in ejmali with his two other brothers has paddy and vegetable yielding land, there is no controversy. About the total quantity of that land, while the wife said it would be about five or six bighas, the husband tried to say that it would be also 31/2 or 4 bighas. The wife also provided evidence from her own knowledge that the husband practices as homeopathic doctor and earns about Rs. 5/- per diem by such practice. The husband has denied this, but taking all the circumstances into consideration the evidence provided by the wife regarding that Income of the husband is pre-eminently acceptable. It appears, therefore, that the produce of the land that the husband possesses is sufficient to maintain himself and other numbers of his family who are now living with him. Without touching that subsistence of the husband, out of the cash income that the husband earns and is capable of earning, the petitioner wife canbe awarded a reasonable maintenance. In the application made in August 1961 the wife claimed only Rs. 45/- per month for her own maintenance as the minor daughter is living with the husband. That claim appears to me to be not only reasonable but the minimum that an adult person would require in the present day for her bare subsistence.
3. I, therefore, accept the Reference, set aside the order of the learned Magistrate dismissing the application under Section 488 Cr. P. C. and direct him to make an order allowing that application awarding a maintenance allowance at the rate of Rs. 45/- per month to the wife to be paid by the opposite party husband. The maintenance will be made payable from the date of the application that is 23rd August, 1961.
4. Mr. Panda appearing for the husband had pleaded before me that the case should be remanded to the court of the Magistrate for considering the evidence regarding the financial capacity of the husband and the amount of allowance that should be awarded in favour of the wife. That would defeat the very purpose for which Section 488 has been enacted in the statute, that purpose being a quick remedy for neglected wife to have their subsistence at least. In the present case application had been made as long ago as August 1961. The learned Magistrate carried on this proceeding till April 1962 when he ended by making an illegal rejection order. About a year has passed since, and during all this time the wife has been left without any subsistence allowance at all. That is a reason that would necessitate for ends of justice that the evidence already on the record be assessed in this Court and an order made as the learned Sessions Judge has recommended. I have accepted that Reference and have made the assessment above made. The maintenance allowance shall be deemed to have been made by the court of the Magistrate where the case was instituted as I have directed above and that court, if and when a proper application, is made by the wife, is directed to take steps for realising the amounts in arrear already without delay in accordance with law.
5. During the time that this proceeding has been dragged on in the court of the Magistrate and also the proceeding in the Court of the Sessions Judge and in this Court has put the wife to enormous costs and in consideration thereof I direct that in addition to the allowance awarded, the husband will pay Rs. 250/- as costs of the proceeding to the wife.
6. Let the records be sent down without delay.