( 1 ) THIS is a reference made by the learned Sessions Judge Surat under sec. 438 of the Criminal Procedure Code in Criminal Revision Application No. 22 of 1971 filed by wife Sahera against her husband opponent No. 1 against the order passed by the learned Judicial Magistrate First Class Bardoli Mandvi in Criminal Miscellaneous Application No. 8 of 1970.

( 2 ) THE applicant wife filed the aforesaid maintenance proceeding under sec. 488 of the Criminal Procedure Code (which will be hereinafter referred to as the Code ) against her husband opponent No. 1 for maintenance amount. She claimed Rs. 100. 00 per month by way of maintenance.

( 3 ) THE opponent husband filed his written statement Ex. 10 contending inter alia that such an application was not maintainable in view of the fact that the wife had filed a suit for restitution of conjugal rights being Parsi Matrimonial Suit No. 3 of 1967 wherein he had filed his written statement and made a counter claim for judicial separation on the ground of legal cruelty.

( 4 ) IN that proceeding Parsi District Matrimonial Court Surat dismissed the wifes suit for restitution of conjugal rights and decreed the husbands claim for judicial separation on 6-12-1967. The wife filed First Appeal No. 34 of 1969 in this Court against that decree. A Division Bench of this Court dismissed that appeal on 6-11-1970. It was contended by the opponent husband that in view of this decree having been passed for judicial separation between the parties and that too on the ground of cruelty meted out to him by his wife such an application under sec. 488 of the Code was not maintainable.

( 5 ) THIS contention of the opponent husband found favour with the learned Judicial Magistrate and consequently he dismissed the application with no order as to costs.

( 6 ) AGAINST that order the wife filed Criminal Revision Application No. 22 of 1971 in the Sessions Court at Surat. The learned Sessions Judge has made this report observing that this order cannot be sustained in law. He has made a recommendation that this order of the learned Magistrate dismissing the application of the wife for maintenance be set aside and any order that may be deemed fit be passed.

( 7 ) IT is an admitted position that the applicant wife filed the aforesaid suit for restitution of conjugal rights and that suit came to be dismissed on 6-12-1967. In the counter claim made by the husband for judicial separation on the ground of legal cruelty meted out to the husband by the wife a decree for judicial separation came to be passed in favour of the opponent husband on 5-12-1967. It is also an admitted position that the appeal filed by the wife has been dismissed by this Court on 6-11-1970. It therefore means that a decree for judicial separation stands.

( 8 ) THE present proceeding under sec. 488 of the Code has been filed by the wife against the husband on 20-2-1972. This application has been dismissed by the learned Magistrate on a preliminary ground as stated above.

( 9 ) SEC. 488 (1) of the Code which is material for our purposes reads: (1) If any person having sufficient means neglects or refuses to maintain his wife. . . . a Presidency Magistrate a Sub-divisional Magistrate or a magistrate of the first class may upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding five hundred rupees in the whole as such Magistrate thinks fit and to pay the same to such person as the Magistrate from time to time directs. THESE provisions of sub-sec. (1) of sec. 488 of the Code indicate that the wife 9s entitled to such maintenance from her husband if she proves that she is the legally wedded wife and further proves that her husband has sufficient means and in spite of his having sufficient means neglects or refuses to maintain her. It is only upon proof of such neglect or refusal that the Magistrate is entitled to pass order regarding maintenance as