1. THE FACTS OF THIS CASE ARE AS FOLLOWS:— The petitioner Shrimati Ranjit Kaur was married to Dr. Avtar Singh, respondent, on the 12th August, 1947. They lived together for four or five years in the course of which Shrimati Ranjit Kaur gave birth to a daughter (Parmindar Kaur) in the year 1951.

2. On 4th November, 1957, Smt. Ranjit Kaur applied under section 488, Criminal Procedure Code, claiming Rs. 125/- P.M as maintenance for herself and her minor daughter alleging that the respondent after taking another wife in the year 1962 had maltreated her and ultimately turned her out of the house after depriving her of all her valuables and had been refusing to maintain her ever since. It was further asserred that despite the fact that the petitioner's father along with a number of respectable persons had approached the respondent to maintain the petitioner, Dr. Avtar Singh had refused to do so and had by means of the letter (Ex. P.W 2.A) informed her that he had nothing to do with her.

3. In contesting the claim for maintenance, the respondent pleaded that he had neither neglected nor refused to maintain the petitioner and the allegation that she was turned out of the house was incorrect. He, however, admitted that he contracted another marriage.

4. The learned Magistrate has dismissed the wife's application for maintenance on the ground that the husband had neither neglected nor refused to maintain her as they were living together till Dussehra 1957 and though Dr. Avtar Singh has taken a second wife that would not give Smt. Ranjit Kaur the right to claim maintenance from him if she chose to live apart. These findings have been challenged on behalf of the petitioner and it is urged that the learned Magistrate has taken a wrong view of the law which entitles the wife to refuse to live with the husband who has remarried.

5. The Proceedings are forwarded for Revision of the following grounds:— The learned Magistrate has come to the conclusion that till Dussehra 1957 the parties were living together and the petitioner had failed to prove that her husband had refused to maintain her. This finding is clearly wrong in view of the letter (Ex. P.W 2.A) which the respondent admits having written to the petitioner wherein he went to the extent of saying that he would have no relations with her. No better evidence of refusal to maintain could be expected and the oral evidence to the contrary produced by the husband alleging that the petitioner was living with him till Dussehra 1957 has no value. Whatever the position may have been prior to the institution of the proceedings by the wife, in the course of the proceedings before the Magistrate the respondent offered to maintain his wife on the condition that she lived with him. The petitioner Smt. Ranjit Kaur, however, refused to accept this offer on the ground that the respondent had remarried and previously she had been maltreated. The petitioner's learned counsel has urged that Smt. Ranjit Kaur was perfectly within her rights in refusing to go back to the husband and while she lived apart the husband was bound to maintain her. He has further contended that where the husband has remarried, the wife was entitled to claim maintenance under section 488, Criminal Procedure Code, without proof of the fact that the husband had neglected or refused to maintain her. Reliance in this connection has been placed upon a number of recent decisions of various High Courts which will be presently noticed. The question turns upon the interpretation of section 488, Criminal Procedure Code, particularly of the proviso to sub-section (3) of that section.

6. sub-section (1) of section 488, Criminal Procedure Code, empowers a Court to award maintenance to a wife whom her husband neglects or refuses to maintain and to a child who is unable to main itself. It is obvious and there is a string of authorities on that point, that until the neglect or refusal to maintain is established a Magistrate has no jurisdiction to pass an order for maintenance under this provision of law.

7. Under the first proviso to sub-section (3) of section 488, Criminal Procedure Code, the husband can, however evade his liability to pay the maintenance if he offers to maintain the wife on the condition of her living with him and the wife has no just ground for refusal to live with him. The proviso as recently amended in the year 1949 runs as follows:—

“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 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.”

Though the above proviso occurs under sub-section (3), its wording goes to show that it is not only when the order of maintenance is sought to be enforced that a husband can make an offer to maintain his wife but he can do so in reply to an application for maintenance under sub-section (1) of section 488, Criminal Procedure Code, before an older for maintenance is passed. In this view I am supported by Syed Ahmed v. N.P Taj Begum . A.I.R 1958 Mysore 128..

8. The second part of the proviso reproduced above lays down that a wife will be justified in refusing to live with her husband if the husband has contracted another marriage or is keeping a mistress. The effect of this provision, which was incorporated in section 488, Criminal Procedure Code, in the year 1949, is that a husband, who has remarried, cannot refuse to maintain his first wife simply because she would not agree to live with him. Consequently a wife cannot be deprived of maintenance merely because she refuses to live with her husband who has another wife. If the husband still insists that he would maintain the wife only on the condition that she lived with him it tantamounts to refusal on his part to maintain the wife. No further evidence of neglect in such cases needs be proved to invoke the jurisdiction of the Magistrate for passing an order for maintenance under sub-section (1) of section 488, Criminal Procedure Code.

9. In the above view of the matter recent authorities have gone to the extent of laying down that irrespective of the question of the refusal or neglect to maintain, a husband who has taken a second wife cannot escape his liability to pay maintenance to his first wife simply because the latter would not agree to live with him. In Syed Ahmad v. N.P Taj Begum it was observed:—

“Neglect or no neglect the petitioner in this Court is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife his plea that he has been compelled to take a second wife by the conduct of the first wife and her parents is not a plea that is open to him in law. His grievance may be genuine but law does not recognize it as a good defence.”

10. The decision in Sm. Banarsi Bai v. Ghisoolal . A.I.R 1955 Ajmer 8., is also to the same effect. Therein it was held that the fact that the husband has married a second time, is sufficient ground for the first wife for refusing to live with him and in these circumstances the wife was entitled to maintenance. The same view was taken by the Allahabad High Court. In Smt. Malki v. Hemraj . A.I.R 1954 All. 30. it was further held that 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. The present position of law has been admirably summed up by their Lordships of the Division Bench in Govindram v. Ratanbai Nathuram . A.I.R 1956 Saurashtra 105., as follows:—

“Theoretically speaking an initial neglect or refusal by the husband is no doubt necessary in order that the Magistrate can entertain the wife's application for maintenance, but in practice no real difficulty will be felt because the first wife will be justified in living away from the husband and if the husband does not maintain her separately then his failure will amount to neglect or refusal entitling the wife to maintenance. Therefore in effect the fact of the husband marrying a second wife entitles the first wife to maintenance.”

11. The authorities in which a different view has, however, been taken, are State v. Anwarbai . A.I.R 1953 Nag. 134. and Rajendra Nath Ghose v. Brojabala Ghose . A.I.R 1956 Cal. 135.. What was held in the latter case was that 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 Procedure Code, for a man may marry a second time and still may not refuse to maintain his first wife. Of course if the husband does not refuse to maintain his first wife even though she insists on living separately from him, the wife would have no cause of action for an application for maintenance, but the position would be wholly different if the husband insists upon the wife living with him as a condition precedent, to his maintaining her. This situation has been considered by their Lordships in the Saurashtra decision quoted earlier. In the Calcutta decision there is no reference to the contrary view taken by the Allahabad, Mysore and other High Courts.

12. So far as our own High Court is concerned there is no direct authority on the point but in Dr. Mukand Lal v. Shrimati Jyotishmati . 60 P.L.R 314., it was held that even if there is an agreement between the wife and the husband that the wife could live apart on the remarriage of the husband that would not disentitle the first wife from claiming maintenance on the plea that she was living separately by mutual consent. In this connection Grover, J., observed:

“If a husband decides to marry another wife and has actually married one, the first wife can legitimately claim to live separately, and if the husband and the wife mutually agree that she should do so, it cannot mean that the wife is living separately by mutual consent.”

13. If the wife, who agrees to live apart from her husband on his taking another wife, cannot be deprived of maintenance there is no justification for holding that the wife, who has not agreed to live apart but has been compelled by the husband's conduct in taking a second wife to seek shelter in the house of her parents would have no right to claim maintenance until she proved that she had been actually pushed out of the house.

14. I am of the opinion that the conduct of the respondent in refusing to pay maintenance to his wife except on the condition that she lived with him, amounts to refusal to maintain her and the learned Magistrate was wrong in throwing out the petitioner's application for maintenance I accordingly forward the records of the case to the High Court with the recommendation that the order of the Magistrate be set aside.

Mr. H.S Gujral, for the Petitioner.

Mr. H.R Sodhi, for the Respondent.

JUDGMENT

15. Harbans Singh, J.:— Facts giving rise to this revision briefly stated are as follows: Shrimati Ranjit Kaur petitioner was married to the respondent Dr. Avtar Singh on 12th of August, 1947, whereafter they lived together for four or five years and Shrimati Ranjit Kaur gave birth to a daughter Mst. Parminder Kaur in the year 1951. In her application under section 488, Criminal Procedure Code, claiming maintenance for self and her minor daughter, filed on 4th of November, 1957, she alleged that in the year 1952 the respondent took another wife and, after maltreating her (Shrimati Ranjit Kaur), turned her out of his house, thereafter she had been living in the village of her father and that in the year 1953 when the respondent was approached he wrote a letter, Exhibit P.W 2.A, informing her and her people that he had nothing to do with them. The respondent contested the application denying the allegations of neglect, refusal to maintain or cruelty though he admitted that he had contracted another marriage. A further plea was taken by him that till Dusehra 1957, the petitioner had been living with the respondent at Jagraon. He also offered to maintain her if she was agreeable to go and live with him.

16. In view of the evidence led on behalf of the respondent showing that the minor daughter Mst. Parminder Kaur was admitted into a local school early in October, 1957, and remained there for some time, the learned Magistrate came to the conclusion that the story of the petitioner that she had been living with her father for the last six years was not correct. He further held that the mere fact that the respondent had contracted a second marriage did not entitle the petitioner to claim maintenance because the husband was prepared to maintain her notwithstanding the fact that he had contracted a second marriage. In view of this, the application filed by the wife was dismissed. On a revision being filed by the wife, the learned Sessions Judge, Ludhiana, has forwarded the records of the case with the recommendation that the conduct of the respondent in refusing to pay maintenance to his wife except on the condition that she should live with him, amounts to refusal to maintain her and that the order of the learned Magistrate may be set aside.

17. Having heard the counsel for the parties, I am inclined to agree with the recommendation made by the learned Sessions Judge. As the matter was argued at great length by the counsel for the parties, I would like to give my reasons for coming to the above conclusion. The relevant I portions of sub-sections (1) and (3) of section 488 are to the following effect:—

“(1) If any person having sufficient means, neglects or refuses to maintain his wife * * * or child * * * a Magistrate * * may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child * * *.

(3) 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 * *;

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 just ground for so doing.

If a husband has contracted marriage with another wife * * 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 * * *.”

The learned counsel for the respondent husband urged that under sub-section (1), it is the duty of the petitioner to establish two things: First, that respondent has sufficient means, and secondly, that he neglects or refuses to maintain his wife or child. He contended that the proviso which follows sub-section (3) has nothing to do with sub-section (1), and that while considering whether the husband has neglected or refused to maintain his wife, the questions whether the wife is living separate from him for good reasons or not or whether the husband has contracted another marriage are altogether irrelevant. According to him the proviso can be taken into consideration only after an order for the payment of maintenance allowance has been made by the Magistrate under sub-section (1) and the same is desired to be enforced by the wife. If this argument of the learned counsel is accepted, it would mean that in an application under section 488, Criminal Procedure Code, for fixation of maintenance, the Court is not entitled to take into consideration the offer made by the husband to maintain his wife on the condition of her living with him even if such an offer is made in good faith and even though the wife has no just cause to stay away from her husband. This as was observed by Hedge, J. in Syed Ahmad v. N.P Taj Begum, “would make the whole section look ridiculous. Courts have uniformly accepted the view that a husband could in an application under section 488, Criminal Procedure Code, take the plea that he is willing to maintain his wife if she lives with him”. Furthermore, one cannot understand why a plea which may be open to a husband in refusing to comply with the order of the learned Magistrate after the same has been made should not be available to him in asking the Court not to make the order in the first instance. The learned counsel for the respondent has not been able to refer to any decided case where the husband has been prevented from taking this plea at the time of the hearing of the application when the learned Magistrate is dealing with the question under sub-section (1). The only case to which he made a reference was Roshan Bano v. Azim . 1943 45 P.L.R 18.. However, in that case this point was not directly involved though an observation was made by the Division Bench that this proviso is a proviso to sub-section (3) and not to sub-section (1) and the ground given in this connection by the Bench was that the second proviso that follows, definitely relates to the enforcement of the order under sub-section (3). But, as already stated, this point was not directly involved and this case cannot be treated as an authority on this point and I have no doubt in my mind that the first part of the proviso is available to the husband even under sub-section (1) at the time of the decision of the application as well as at the time of the enforcement of the order. If that be so, then the latter part of the proviso would be applicable as well and the trial Magistrate is bound to consider the grounds given by the wife, if any, while refusing an offer made by the husband to maintain her on condition of her living with him. If the Magistrate finds that the grounds given by her are just then the conditional offer made by the husband will not be of any avail to the husband.

18. There is some conflict of opinion as to whether taking of the second wife or keeping of a mistress by itself is sufficient for passing an order of maintenance against the husband irrespective of it being proved that the husband had been guilty of neglect or refusal to maintain his wife. I, however, feel that it is not necessary to go into this controversy.

19. There can be no manner of doubt that under sub-section (1) before a Magistrate can pass an order, he must be satisfied with regard to two matters, namely, that the husband has sufficient means and that he has neglected or refused to maintain his wife or child. There is, however nothing to indicate how neglect or refusal is to be established. Where the husband offers to maintain his wife only on the condition of her living with him and if the Court finds that the refusal by the wife to go and live with her husband is justified, such a conditional offer by itself would really amount, to refusal on the part of the husband to maintain his wife if she continued to live away from him. Thus, where the husband has taken a second wife and he refuses to maintain his first wife unless the latter is agreable to go and live with him, this circumstance by itself will be sufficient to establish refusal of the husband, and thus, in practice, the existence of a second wife or the keeping of a mistress would, unless there is something else proved against the wife, result in the acceptance of the petition of the wife for the grant of the maintenance. Reference in this respect may be made to the observations of Shah, C.J in Govindram v. Ratanbai Nathuram, at page 106 to the following effect:—

“Theoretically speaking an initial neglect or refusal by the husband is no doubt necessary in order that the Magistrate can entertain the wife's application for maintenance, but in practice no real difficulty will be felt because the first wife will be justified in living away from the husband and if the husband does not maintain her separately then his failure will amount to neglect or refusal entitling the wife to maintenance. Therefore, in effect the fact of the husband marrying a second wife entitles the first wife to maintenance. This is in accord with the view taken in Gunni v. Babu Lal(9), Rajeswariamma v. K.M Viswanath(10), Senapathi Mudaliar v. Deiranai Ammal(11) and Smt. Malki v. Hemraj(3).”

20. In view of the above, therefore, I accept this revision, set aside the order of the learned Magistrate, but in view of the fact that the learned Magistrate has not given any finding as to the reasonable amount which Shrimati Ranjit Kaur and her minor daughter are entitled to get from the respondent, I send back the case to the Court of the Additional District Magistrate, Ludhiana, for giving a finding on this point after hearing the arguments of the parties' counsel. The counsel for the parties have been directed to cause their clients to appear before the Additional District Magistrate on 10th of September, 1959, for further proceedings.

Petition accepted.