A husband's second marriage or keeping a mistress constitutes a just ground for the wife's refusal to live with him, entitling her to maintenance and separate residence under Section 488 of the Code of Criminal Procedure, 1898.

JUDGEMENT

1. Kausalya (opposite party) is the wife of Jadab Chandra Pradhan, (petitioner). She filed an application on 29-11-1972 for maintenance at the rate of Rs. 400/- per month under Section 483 of the Code of Criminal Procedure. 1898. Her case is that about seven to eight years back the petitioner kept Sulochana Dei as a mistress and diverted his love towards her. He gradually neglected the opposite party who was not given due-respect and status as a house-wife. She was assaulted and abused in filthy language under the influence of his mistress. He was a man of means and had sufficient capacity to pay maintenance at the-rate of Rs. 400/- per month to her.

The petitioner filed a written statement. He asserted that he did not neglect or refuse to maintain the opposite party and that he did not assault of abuse her. The allegation in paragraph 2 of the petition for maintenance that the husband accepted mistress named Sulochana Dei was not controverted in the written statement. He expressed his willingness to receive the opposite party in his house. As to Quantum of maintenance the petitioner was willing to pay Rs. 80/- per month.

2. Opposite party examined three witnesses including herself. The petitioner did not examine any witness but merely produced some documents as to his properties. The learned Sub-divisional Magistrate after careful discussion of the evidence came to the conclusion that the petitioner neglected the opposite party and that he is also liable to pay maintenance as he married a second wife. He granted maintenance at the rate of Rs. 100/- per month. As the application for maintenance had been filed on 29-11-1972 he granted arrears of maintenance for thirteen months from 29-11-1972 till 29-12-1973. The judgement was delivered on 11-1-1974. It is against this order granting maintenance that the husband has filed this revision.

3. Though in the application for maintenance it was stated that Sulochana was the mistress of the petitioner the finding of the learned Magistrate is that it was admitted before him that the petitioner married Sulochana and she was the second wife. Mr. P.K. Das, the learned Advocate for the petitioner, argued the case on the footing that Sulochana is the second wife of the petitioner. The quantum of maintenance at the rate of Rs. 100 per month is not challenged.

4. Mr. Das raised the following contentions :

(1) The evidence on record does not justify the conclusion of the learned Magistrate that the petitioner neglected or refused to maintain the opposite party.

(ii) No maintenance can be granted under Section 488, Criminal P.C. merely on the ground of second marriage unless it is further proved that the petitioner neglected or refused to maintain the opposite party.

(iii) Even if the opposite party is held to be entitled to maintenance and separate residence she cannot live at her father's house but she must live in a house as selected by the husband.

5. The first contention has no substance. Kausalya (P.W. 3) boldly stated in her evidence that she was assaulted, abused and ill-treated by the petitioner after his association with Sulochana. She stated that the atmosphere was made so hot for her that it was impossible for her to stay with the petitioner and she was forced to leave her husband's house and live in the house of her parents. The petitioner did not venture to pledge his solemn testimony to countermand the evidence of P.W. 3. On the evidence of P.W. 3 alone the conclusion of the learned Magistrate that the petitioner neglected and refused to maintain his wife is sustainable. Kausalya's statement is further corroborated by the evidence of P.Ws. 1 and 2. The finding of the learned Magistrate is unassailable.

6. Even assuming that no evidence had been adduced that the petitioner neglected or refused to maintain Kausalya the question for consideration is whether marrying a second wife or keeping a mistress by itself is enough to entitle the wife to maintenance even in the absence of pro