R. CHANDRA, J. :- This reference arises out of the proceedings under Section 488 of the Code of the Criminal Procedure.

2. On 26th March, 1965, Smt. Sapla Devi made an application under Section 488. Cr. P.C., for grant of maintenance on the grounds, that she was married to Naurang Singh petitioner about two years ago and after one year of the marriage the relations between them became strained and Naurang Singh also married a second wife, namely Smt. Kalpa Devi, that about 8 months ago he (Naurang Singh), dispossessed her of the ornaments and clothes and turned her out of the house, and thereafter she started to live with her father. It was said that during this period. Naurang Singh completely neglected to maintain her, so she claimed maintenance at Rs. 30 per mensem from her husband, namely Naurang Singh.

3. Naurang Singh petitioner resisted the claim for maintenance on the grounds that Smt Sapla Devi was not his legally wedded wife and he was actually married to Kalpa Devi about fifteen years ago and also had a female issue from her.

Smt. Sapla Devi was the cousin-sister of Smt. Kalpa Devi and frequently visited his house, and he developed illicit connection with her. She also became pregnant in law, she was not entitled to get any maintenance.

4. The learned Magistrate found that Smt. Sapla Devi was the wedded wife of Naurang Singh, so he granted her maintenance at the rate of Rs. 40 per mensem.

5. Naurang Singh being aggrieved with that order went up in revision. The Sessions Judge agreed with the Magistrate that Smt. Sapla Devi was the married wife of Naurang Singh. It was also found that Naurang Singh was first married to Smt. Kalpa Devi about 12 years ago, and that marriage still subsisted, when he (Naurang Singh) took Smt. Sapla Devi as his second wife. In his opinion, the second marriage in the lifetime of the first wife, was void under Section 5/11 of the Hindu Marriage Act, 1955. In this view, he disagreed with the Magistrate and held that Smt. Sapla Devi was not entitled to claim any maintenance, as the first wife of Naurang Singh was alive at the time of her marriage (which took place after the coming into force of the Hindu Marriage Act, 1955). Accordingly, he made a reference to the High Court recommending that the order of the Magistrate granting maintenance at the rate of Rs. 40/- per mensem to Smt. Sapla Devi be quashed, and her petition, under Section 488, Cr. P.C. be dismissed, vide the order of the Sessions Judge, Bahraich, dated 15th January, 1966.

6. The reference came up for hearing before brother Misra, J. The question that arose for consideration was formulated as : "Whether the marriage of a Hindu husband, solemnised with a second wife during the continuance of his marriage with his former wife is void on account of the provisions of Sections 5(1) and 11 of the Hindu Marriage Act 1955, and is such a wife by the subsequent marriage prevented from claiming maintenance from him in accordance with Section 488, Code of Criminal Procedure." Since the question raised in the reference was of some importance, and there was no clear case law on the point, Misra J., referred the matter to the Division Bench. In these circumstances, this reference has come up for hearing before us. We have heard the learned counsel for the parties. Smt. Kalpa Devi was married to Naurang Singh, sometime in 1952-53. The marriage of Sapla Devi with Naurang Singh took place sometime in 1963, when his first wife was still alive, and the earlier marriage subsisted in the eye of law. Now, we have to see what was the status of Smt Sapla Devi under law, and whether she was competent to claim maintenance from her husband Naurang Singh, under Section 488. Cr. P.C.

7. Section 488, Cr. P.C. read :

"488 (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 District Magistrate, a Presidency Magistrate, a Sub-Divisional Magistrate or a Magistra