(1) An interesting, though an abstract, question of law that has been referred for decision by a learned Single Judge is: Whether a wife in terms of first proviso to Sub-section (3) of Section 488 Cr. P. C. can refuse to live with her husband and claim separate maintenance from him only on the ground that he has contracted a second marriage? As is apparent from the order of reference, the necessity for making the reference arose because of divergence of judicial opinion on the question. Some courts have held that the taking of the second wife or keeping of a mistress by the husband is by itself not sufficient for passing an order of maintenance against the husband, unless it is proved that the husband has been guilty of neglect or refusal to maintain his wife (See Ishar V. Mst Soma Devi, AIR 1959 Punjab 295; Bela Rani Vs. Bhopal Chandra, AIR 1956 Calcutta 134 and Iqbalunnisa Begum and another Vs. Habib Pasha AIR 1961 A.P. 445 in this connection).

(2) A contrary view has been taken in some cases, and it has been held that neglect or refusal, or no neglect or refusal, the husband is liable to pay separate maintenance to his wife on the sole ground that he has taken a second wife. This view has been taken in Dewan Singh Wasawa V Harbans Kaur Dewan Singh and another, AIR 1962 Punjab 241; H. Syed Ahmad V. N P. Taj Begum, AIR 1958 Mysore 128; Abdul Ghaffar V. Bibi Hafiza Khatoon, AIR 1968 Patna 307, and in Mst Biro Vs. Behari Lal, AIR 1958 J&K 47 wherein a Division Bench of this court expressly dissented from the view expressed in AIR 1956 Calcutta 134 (supra) and held that a wife would be entitled to maintenance merely on the ground that the husband had contracted a second marriage and that it was not proper to hold that inspite of the proof of second marriage of the husband, awife claiming maintenance was still required to satisfy the conditions laid down in clause (I) of Section 488 Cr. P. C. namely, to prove neglect or refusal to maintain by the husband.

(3) Reconciling these two directly opposite views, it has bee a held by some courts that there can be no manner of doubt that under Sub-section (I) of Section 488 Cr. P. C. before a Magistrate can pass an order, he must be satisfied in regard to two matters namely: that the husband has sufficient means and that he has neglected or refused to maintain his wife. Where the husband offers to maintain his wife on the condition of her living with him and the court finds that the offer has been rejected - by the wife on the ground that the husband has contracted a second marriage, it would be a just ground for her to stay away and still claim maintenance. Reference in this connection may be made with advantage to Smt. Ranjit Kour V Dr. Avtar Singh, AIR 1960 Punjab 221 and Govind Ram Naran Dass V Ratan Pal Nathu Ram AIR 1956 Saurashtra 105, where Chief Justice Shah, opined that the practically speaking where a wife is living away from the husband on the ground that the husband has contracted a second marriage, an initial neglect or refusal by the husband is no doubt necessary to be made out in order that the magistrate can maintain the wifes application for maintenance, but "in practice no real difficulty will be felt because wife will be justified in living away from the husband and if the husband does not maintain her separately then his failure will amount to neglect or refusal entitling the wife to maintenance."

(4) It appears that the conflict of judicial opinion has arisen because of the location of the first proviso to sub-section (3) of Sec. 488 Cr. P. C.

(5) It would be, therefore, advantageous to first notice the relevant provisions of Section 488 Cr. P. C.

"488. Order for maintenance of wives and Children.-(1) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the Chief Judicial Magistrate or any other Judicial Magistrate of the first class may, upon proof of such neglect or refu

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