A wife is entitled to maintenance allowance under Section 488 Cr. P. C. if the husband has neglected or refused to maintain her, and if the wife has just ground for refusing to live with the husband, such as a second marriage by the husband.

( 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 la