A husband's remarriage is a just ground for the wife's refusal to live with him and that he is therefore liable to pay her maintenance under S. 488(1) of the Criminal Procedure Code.

ORDER :- Petition to revise the order of the Additional First Class Magistrate, Pollachi, under S. 488(1) of the Criminal Procedure Code, directing the petitioner to pay Rs. 20 per mensem to his wife and Rs. 5 per mensem to his child for maintenance. The petitioner married the respondent about 6½ or 7 years prior to this case and lived with her for two years. Then the respondent became pregnant and gave birth to a child, Easwaraswami. Three months after the birth of the child, the respondent became demented. But she subsequently recovered her mental health. The respondent is living in her fathers house. She claimed maintenance for herself and her child on the ground that the petitioner married a second wife and refused and neglected to maintain her. The respondent denied the fact of his having married a second wife and offered to take back his wife and child. The learned Additional First Class Magistrate did not accept the case of the respondent, but accepted that of the petitioner and awarded maintenance of Rs. 20 per mensem to the wife and Rs. 5 per mensem to the child.

2. The learned advocate for the petitioner contended that the alleged second marriage has not been strictly proved in this case. I am unable to accept this contention. P. W. 2, Gopala Iyer, is an archaka in Sandamman Koil and he deposed that the respondent paid Rs. 2-8-0 obtained the receipt Ex. P4 and married Myeathal on the 14th July 1960 in the temple. The learned Additional First Class Magistrate has accepted the evidence of P. W. 2, Gopala Iyer. It was argued by the learned advocate for the petitioner that P. W. 2, Gopala Iyer, has not spoken to the ceremonies of the marriage such as tying of tali. But P. W. 2, Gopala Iyer, has definitely stated that the petitioner herein married Myeathal and it was not suggested to him that any of the essential ceremonies of the marriage did not take place. The learned Additional First Class Magistrate has also taken into consideration the leave letter Ex. P.2 sent by the petitioner for getting married and the evidence of P. Ws. 3 and 4 about the petitioner and Myeathal living together in coming to the conclusion that the petitioner married second wife. Even assuming that there was no marriage at all the essential requisites between the petitioner and Myeathal, the evidence of P. Ws. 4 and 5 would clearly show that the petitioner was living with Myethal and this would justify the award of maintenance on the ground that the petitioner was keeping a concubine.

3. The learned Advocate for the petitioner referred to the evidence of P. W. 5 that her husband asked her to go and live with him. The learned Additional First Class Magistrate has considered this fact in paragraph 7 of his judgment and observed that it was easy to get such an answer from a woman of weak mind. He has found, at the end of that paragraph, that the present offer of the petitioner is not bona fide and is an after thought. It is clear from the decision in Senapathi Mudaliar v. Devanai Ammal, 1949-2 Mad LJ 820 : (AIR 1950 Mad 357), that when a person marries a second wife and the first wife applies for separate maintenance, any offer by the husband to take her back and treat her well cannot be taken to be sincere and an order for separate maintenance would be quite justified.

4. The learned Advocate for the petitioner contended that in order to justify the award of maintenance to a wife under S. 488 of the Criminal Procedure Code the Court should find that the husband refused or neglected to maintain her and that the mere fact that the husband has contracted a second marriage cannot amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of Sub-section (1) of Section 488 of the Criminal Procedure Code. He relied on the decisions in Pullamma v. Thathalingam, 57 Mad LW 492 : (AIR 1950 Mad 357) Bela Rani Chatterjee v. Bhupal Chandra Chatterjee, AIR 1956 Cal 134 and Iqbalunnissa Begum v. Habib Pasha, 1961 Mad LJ C