A Hindu wife is entitled to claim maintenance under Section 488 of the Cr. P.C. even if she had earlier refused to live with her husband, provided that the husband has contracted a second marriage or keeps a mistress.

1. I glanced at the Reference and had a look at it. I have no hesitation in arriving at the conclusion that it has been so referred by Shri B.L. Hansaria, Sessions Judge at Jorhat awed by some observations made in some of the decisions of the High Courts. His depression, despair and helplessness to confront the situation is obvious from the wavering letter of reference.

2. The Judge has recommended for modification of an order passed by the Sub-divisional Magistrate (Judl), Golaghat under S.488 of the Cr. P.C. awarding a paltry sum of Rs.50/- per month to provide maintenance to the young wife aged hardly 24 or 25 years, at all relevant period, for the failure or neglect of her husband to support her.

3. An application was filed by Smti. Sarumai Nath under S.488 of the Cr. P.C. 1898, praying for her maintenance and also for her son. She states that she is the wife of the second party and was lawfully married and had a boy child out of the wed-lock. As she was ill she had gone to her mother's house for having treatment in the month of Kartika, 1971 (corresponding to October/November, 1971). While she was so staying in her mother's house, she got the information about the second marriage of her husband, Shri Lalit Mohan Bora. The marriage, according to her, took place in the month of Chaitra (corresponding to March, 1972). Her case is that she was unable to maintain herself and her son and that her husband having had sufficient means had neglected and refused to maintain them. She claimed maintenance for herself and her child at the rate of Rs.150/- per month.

4. The claim is resisted by her husband and his case is that the applicant did not care to return back to his house in spite of his directions. He claims that a registered notice was served on his wife asking her to return back and thereafter he got a Panchayat convened on 14th December, 1971 that is to say about 1 or 2 months after she had left his house; yet she did not attend the Panchayat meeting and, accordingly, the Panchayat decided that he would be free to act in the way he liked. The second marriage was held in the month of Chaitra, 1971 (corresponding to March, 1972). It appears from the records of the case that the applicant has examined Dr. P. Kalita as witness No.4 to prove that she was really ill from 3-11-71 to 16-11-71.

5. The simple case of the Opposite party-husband is that the applicant disentitled herself to get any sum for her maintenance as she had refused to live with him without any sufficient reason.

6. The Trial Court has held that the said acts and conduct of the wife was sufficient to establish that she had refused to come back and live with her husband for a couple of months. But the learned Magistrate granted her maintenance on being satisfied about the second marriage of the Opposite Party-husband held in the month of March, 1972. The learned Magistrate has awarded a sum of Rs.50/-per month to the applicant wife and also a sum of Rs.30/- per month for the maintenance of the child. The learned Magistrate has, however, granted the said maintenance on and from 11-8-73 until further orders. He has directed to pay the amount of maintenance at the rate quoted above regularly on the 11th of each month.

7. Being aggrieved by the said order D/-11-8-73 passed by Shri P.C. Barpujari, Sub-Divisional Magistrate (Judl), Golaghat in Misc. Case 54 of 1972 the Opposite Party-husband filed an application under Ss.435/438 of the Code before the Sessions Judge at Jorhat. The learned Sessions Judge on hearing the parties has held that this is a fit case in which the order relating to the award of Rs.50/- for the maintenance of the wife merits interference by this Court. The reason which prompted the Judge to make the reference is that the wife had refused to return back and live with her husband was a finding of fact arrived at by the trial Court and as such, she was not entitled to get any maintenance under S.488 (4) of the Cr. P.C. As the wife did not respond