The amendment to S. 488 introduced by Act 9 of 1949 was applicable when an order was being passed under Sub-S. (1), and the obligation for payment of maintenance was a recurring one. The rule for maintenance under S. 488 applied only to Muslim married women and not to Hindu married women.

This is a reference under S. 438, Criminal P.C., by the Second Additional Sessions Judge, Bhopal, with the recommendation that the order dated 20-11-1954 of the Sub-Divisional Magistrate, Bhopal, ordering Abdulla Khan to pay Rs. 15/- per month as maintenance to his first wife Sm. Chandni Bi, be set aside. Both Sm. Chandni Bi and Abdulla Khan are absent and the case was taken up with the assistance of the Government Advocate.

2. Sm. Chandni Bi had moved an application under S. 488, Criminal P.C., on the ground that her husband Abdulla Khan had sent her away to the house of her father after beating her and did not maintain her for the three years prior to the moving of the application. She claimed maintenance at the rate of Rs. 25/- per month.

Abdulla Khan opposed the application and blamed his father-in-law for not sending his daughter. He also said that he remarried when his first wife was not sent back.

3. The learned Magistrate allowed the application of the ground that Sm. Chandni Bi had the right to refuse to live with her husband in view of the fact that he had married again and was living with the second wife.

4. The learned Sessions Judge has made the reference as in his opinion, the amendment to S. 488 introduced by S. 2, Code of Criminal Procedure (Amendment) Act, 1949, (Act 9 of 1949) was applicable only when the enforcement of the order under Sub-S. (1) was being sought for and not when an order was being passed under Sub-S. (1).

5. I am not inclined to agree with this opinion of the learned Sessions Judge. But in view of the repeal of Act 9 of 1949 it is not necessary for me to express any opinion on the above question of law. The clause "If a husband has contracted marriage with another wife or keeps a mistress it shall be considered to be just ground for his wife's refusal to live with him was added to Sub-S. (3) of S. 488, Criminal P.C. under Act 9 of 1949.

The whole of the Amendment Act was repealed by the Repealing and Amending Act of 1952. (Act 48 of 1952). The second clause of S. 4 of the Repealing and Amending Act, 1952, cannot help Sm. Chandni Bi as the obligation or the liability for payment of maintenance month after month, is a recurring one and not one which can be regarded to be an obligation or liability already accrued or incurred as contemplated by the above Section.

This clause will simply authorise Sm. Chandni Bi to claim maintenance upto 2-8-1952 and not thereafter and even such claim is now barred by limitation. Further, after 2-8-1952 she will have no justification to refuse to live with her husband simply because he has contracted marriage with another wife.

6. To avoid any ambiguity in the correct approach to the grant of maintenance under S. 488, Criminal P.C., it may be added that the above, rule would be applicable to only Muslim married women and not to Hindu married women, who have been given a right to separate residence and maintenance in case the husband marries again, under the Hindu Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act 19 of 1946).

Thus only a Hindu married woman can refuse to live with her husband and even then will be entitled to separate residence and maintenance from! her husband if he marries again; but a Muslim woman has no such right and she must submit to the second marriage, unless of course the husband neglects or refuses to maintain her and the children through her. This places the Muslim women under considerable hardship and mental worry but the Courts of Law cannot refuse to give a proper,' meaning to a provision on the ground of any hardship or injustice which may be done to a party.

The differentiation resulting from the Hindu. Married Women's Right to Separate Residence and Maintenance Act, 1946 (Act 19 of 1946) cannot be said to be discriminatory or repugnant to Art. 14 bf the Constitution of India as the classification' is a reasonable one and is based upon the outlook of persons belonging to the two communities.

The Legislature i