A wife can claim separate maintenance under Section 488 Cr.P.C. on the ground that her husband has contracted a second marriage, even if there is no neglect or refusal to maintain on his part.

JUDGMENT :

RAMACHANDRA RAJU, J.

1. This Criminal Revision, case is referred to a Bench as a question of law of importance is involved with regard to the right of a wife to claim separate maintenance under Section 433 Cr. P.C. from her husband on the ground that he married a second wife. In the decision Iqbalunnissa Begum v. Habib Pasha1 a single Judge of this Court took the view that as provided under Section 488 Cr. P.C. a wife cannot claim maintenance from her husband on the ground that he contracted marriage with another wife without proof of neglect or refusal to maintain her on the part of the husband. On the ground that the preponderance of opinion of the other High Courts seems to be contrary, the matter has been referred to a Division Bench for decision. That is how the matter has come up before us. The brief facts leading to the filing of the petition are that the petitioner was legally married to the first respondent on 10-5-1964 according to Muslim custom and rites and both of them lived as wife and husband for some time. The allegation of the petitioner is that subsequently the first respondent drove her away by taking her jewels and clothes on which the petitioners got issued a registered notice on 31-12-1964 for which there was no reply from the first respondent. Even when the petitioner gave birth to a male child, the first respondent did not care to see the petitioner and the child died subsequently. The petitioner got a further notice issued on 2-1-67 to the first respondent and to that notice the first respondent has given a reply with false allegations. The first respondent has wilfully neglected the petitioner and hence she is entitled to claim separate maintenance at the rate of Rs. 30/- per month, The first respondent denied having driven away the petitioner after removing her jewels and clothes as alleged. According to him the petitioner and her father wanted him to sell away his property at his village and settle down at Chittoor., to which course the first respondent did not agree and hence the petitioner on her own accord refused to live with him and he never neglected to maintain her and he is ever willing to take the petitioner and maintain her, It is also the case of the petitioner as deposed in her evidence that the first respondent married a second wife. The first respondent in his evidence has has admitted his second marriage but stated that after, failing in his attempts to get at the petitioner and live with her amicably, he was, forced to take a second wife. In support of his case the first respondent also examined another witness as R.W. 2 who spoke about his intervention at the instance of the first respondent and requesting the father of the petitioner to send her to the first respondent. The Additional-Munsif Magistrate who enquired the petition on the material placed before him came to the conclusion that there was no neglect of the petitioner by the first respondent and accordingly refused to grant maintenance in the revision petition filed by the petitioner, the learned Sessions Judge., Chittoor agreed with the conclusion of the learned Magistrate that there; Was no neglect or refusal by the first respondent to maintain the petitioner. But it was argued before the learned Sessions Judge on behalf of the petitioner that the first respondent has admitted that he contracted a-second marriage and the very fact of his taking a second wife will entitle; the petitioner to claim maintenance as provided, under Section 488 Cr. P.C. The learned Sessions Judge without any discussion held that the mere fact of the first respondent contracting a second marriage ipso facto does not entitle the petitioner to maintenance and she is not entitled to the same unless she can establish neglect and refusal by the first respondent to maintain her.

2. The only point urged in this revision case is that at provided under Section 488 Cr. P.C. a wife is entitled to claim maintenance from her husband merely on the g