JUDGMENT - Palekar, J.

(1) This is a reference by the learned Additional sessions judge, Latur, Arising out of an order passed under S. 488, Cr. P.C. by the learned judicial Magistrate, F.C. Udgir, awarding separate maintenance at the rate of the Rs. 30 per month to the wife. The wife, the Tejabai was married to the shankarrao Baswanappa in about 1954, when she was a minor. Shankarrao has a first she was the time. Tajbai filed the application of under S., 488 Cr P.C on 29-11-1963, alleging that the she was treated well for about a year after the a marriage and that she was ill - treated thereafter, and , finally, beaten and driven out of the hours on 23-11-1963. She therefore claimed maintenance at the husband had an annual to agricultural income of Rs. 3,000 and used to each Rs. 90 p.m. by was of salary as a Talati the allegations of ill - treatments were denied by the husband. He alleged that the Tejbai lived with him for about eight years after he marriage, and that she had left him time of Nagpanchami in the year before the application was filed. He further, alleged that the he has called her to this house, but she was refusing to return to him. He therefore, contended that she was not entitled to any maintenance.

(2) The learned judicial Magistrate held that the alleged ill - treatment had not been proved. At the see t ime, he was of the maintenance, "neglected or refusal to maintain" being presumed on account or the husband having another wife. He therefore, ordered that the husband Shankarrao should pay Rs. 30 p.m. as maintenances to her.

(3) Shankarrao, thereupon, filed a revision petition in the court of the sessions Judge at Latur. The learned Additional session judge held that the Magistrate had no jurisdiction to the pass the order maintenance merely on the ground of the Shankarrao having a second wife. He was of the view that the amendment of to sub =section (3) of S. 488 Cr. P.C. by Act 9 of the 1949, did not enlarge the ambit of the provision did of S. 488 (1) of the Cr. P.C. and did not supply a new ground for claiming maintenance.

(4) Both the courts have held that there was no ill = treatment of the wife. That if a finding of fact and is binding up the this court. The wife Tejbai and had put forwards the ground of ill - treatment has not been proved it must be held that she had voluntarily left her husbands house to stay with her parents. The question is whether, living separate from her husband she is entitled to claim maintenance under S. 488 Cri. P.C. on the ground that her husband has contracted marriage with another wife.

(5) Sub - section (1) of S. 488 Cr. P.C. provides that, if any person having sufficient means neglects or refuses to maintain his wife ......... a magistrate of the first calls, may, upon the proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife....... sub - section (2) of S. 488 provides the for payments of such allowances from the date of the order or the application for maintenance. Sub - section (3) is important. It says.

"If any person so ordered fails without sufficient cause to comply with the order ,any such Magistrate may, for every of the breach of the order, issue a warrant for levying the amount due...... and may sentence such person, for the whole or any part of the each months allowance remaining up paid after the execution of the warrant, to imprisonments for term of which may extend to the one months or until payment of the soon made provided that if such person offers to maintain his wife on condition of her living with him and she refuses to live with the him such magistrate may consider any grounds of refusal stated by her, and may make an order under the state 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 wifes refusal to live with h

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