ORDER
M.U. Isaac, J.
1. This is a petition to revise the order of the Munsif-Magistrate, Ettnmanoor dismissing an application which the petitioner made under Section 488 Cr. P. C. for getting maintenance from the respondent.
2. The respondent married the petitioner in April 1948, while he was in Military service. The petitioner's case is that, while this marriage remains in force, the respondent married another lady by a registration in December 1951, and thereafter he neglected to maintain the petitioner. She complained to the Military authorities as a result of which he began to send her some money. Subsequently, he was discharged from the Military and he had not been giving her any maintenance during the past one year.
On these and other allegations which are not necessary to be stated here, she claimed a monthly maintenance of Rs. 60/- from the respondent. The respondent, while admitting the marriage, contended that the petitioner left his house contrary to his instructions soon after the marriage, and began to live an immoral life in her own house. In April 1949. when he came on leave, he went to the petitioner's house to take her home, but he was turned out by the petitioner and her relations. She told him positively that she did not want to be his wife thereafter, and declared that theirmarital relation had come to an end. According to the respondent their marriage stood dissolved in this fashion. The respondent did not deny his second marriage with another lady. He also pleaded inability to maintain the petitioner, paticularly on the ground that he had a wife and four children.
3. In support of his plea that the marriage was dissolved the respondent examined himself aad two more witnesses. According to their evidence, the dissolution took place, not as stated in the written statement of the respondent but through the mediation of these two witnesses and others at the desire of both the parties. The lower Court accepted this evidence, and held that the marital relation between the petitioner and the respondent came to an end in April 1949 in the aforesaid fashion. The petitioner's counsel contended before me that the finding erf the lower Court is patently erroneous, that there are only two methods provided under the Travancore Nair Act 2/1100, which applies to the parties, for the dissolution of a marriage, namely by mutual consent evidenced by a registered instrument or by a formal order of dissolution by a competent Court, and that his client was entitled to maintenance as she continued to be the wife of the respondent, and the respondent admittedly refused to maintain her. It is clear from a reading of Sections 4 and 8 of the Travancore Nair Act that the dissolution of a marriage cannot be effected in the manner found by the lower Court, and that the second marriage performed by the respondent is void under Taw.
4. The respondent's learned counsel, further resisted the claim for maintenance on two grounds. First, there is no evidence in the case that the respondent neglected or refused to maintain the petitioner, and hence the petitioner was not entitled to an order for maintenance. Secondly, the wife, after having once agreed to live separately, forfeited her claim for ever, and she cannot subsequently come forward and claim it on the ground that the husband contracted a second marriage or was 'keeping a mistress. The first contention has no substance. An admission that the husband has not been maintaining the wife followed by the denial of his liability to maintain her, amounts to refusal to maintain the wife. There cannot be a clearer case of a refusal. If a man does not maintain his wife in the face of a claim for being maintained, it is refusal. If he does not care to maintain her or does not maintain her properly ft is negligence.
5. The second contention raised by the respondent's learned counsel raises an interesting question relating to the true interpretation and application of Section 488 Cr. P. C. The relevant part of the section may be quoted here for convenient reference:
'488, Order of 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 District Magistrate, a Presi-dency Magistrate, a Sub-Divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time direct.
(2) Such allowance shall be payable from the date of the order, or if so ordered from the date of the application for maintenance.
Enforcement of order -- (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in manner hereinbefore provided for levying fines, and may sentence such person, for the whole or any part of each month's allowance remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made :
Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her. and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
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 :
Provided further, that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the Court to levy such amount within a period of one year from the date on which it became due.
(4) No wife shall be entitled to receive an allowance from her husband under this section if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent.
(5) On proof that any wife in whose favouran order has been made under this section isliving in adultery, or that without sufficientreason she refuses to live with her husband, orthat they are living separately by mutual consent, the Magistrate shall cancel the order'
x x x x x
x x x x x
The second part of the first proviso appearing after Sub-section (3) was added by the Criminal Procedure Code (Amendment) Act 9 of 1949. Judicial opinion was divided on the question whether a wife was entitled to live separate from her husband and claim maintenance, on the ground that he has contracted another marriage or was keeping a mistress. This amendment was enacted to set at rest this controversy; and it made the contracting of a second marriage or the keeping of a mistress a fust ground for the wife's refusal to live with the husband.
6. The respondent's learned counsel contended, in the first instance, that this was a case of a husband and wife living separately by mutual consent, that it disentitled her to get maintenance under Sub-section (4) of Section 488 Cr. P, C, and that once she gave the consent, she forfeited her right to be maintained by her husband any further. She cannot revoke the consent, and claim to be maintained by her husband. I cannot accede to this contention. The basis of the provision contained in Section 488 Cr. P. C. is that a husband is entitled for cohabitation with his wife, so long as he does not disqualify himself to the enjoyment of this right, and the, wife has the right to be maintained by him, so long as she does not become disentitled to the same, in any of the ways stated in the said section. These rights are reciprocal.
Subject to the provisions of this section, the husband can at any time during the subsistence of the marriage demand that his wife should live with him; and similarly a wife can demand that she should be maintained by her husband. These mutual rights arise out of the legal status of being husband and wife; and so long as that relation subsists, it is open for a wife to revoke or withdraw the consent which she has given to live separate from the husband and claim to be maintained by him. The mutual consent only keeps in abeyance the wife's right to get maintenance from her husband, and the moment she withdraws or revokes her consent she becomes entitled to get maintenance from her husband, and also subjects herself to the obligations to him as wife.
This interpretation of Sub-section (4) of Section 488 Cr. P. C. is in consonance with public policy and the principle of law enacted in that section. It was next contended by the respondent's learned counsel that even assuming that the consent given by a wife to live separate from her husband can be withdrawn or revoked, she cannot do so after the husband has contracted a second marriage or begun to keep a mistress, which he did on the basis of the consent given by her, and then plead that this is a just ground for her refusal to live with him within the meaning of the second part of the first proviso contained after Sub-section (3) of Section 488 Cr.P. C.
7. Before I deal with this contention it is necessary to refer to another judicial controversy relating to the interpretation of this section, and it is whether the first proviso appearing after Sub-section (3) of Section 488 qualifies the whole section or only Sub-section (3) of the section. According to me, on the language of this proviso, there is no scope for such controversy. From the juxtaposition, this proviso can qualify all the three sub-sections, after which it appears or the third sub-section alone; for if it is intended to qualify all the three sub-sections, it is unnecessary to add it after each sub-section. But the juxtaposition of a proviso or a sub-section is not a safe guide for its interpretation. The language of the provision or uie meaning of the words should deter-mine the matter. If a reading of the proviso shows that it is intended as a proviso to the whole section or to a part thereof, ft should be so read. The whole section along with the proviso should be read consistent with the legislative object, and in such a way as to give an intelligent meaning to the statutory provision.
8. Sub-section (1) of Section 488 Cr. P. a deals with the making of an order for maintenance. Sub-section (3) deals with the execution of an order for maintenance. The first proviso appearing after Sub-section (3) reads as follows :--
'Provided that, if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him. such Magistrate may consider any grounds or refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is just ground for so doing.
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'.
Under Sub-section (1), an order for maintenance can be made only if there is neglect or refusal to maintain the wife or the child, as the case may be. Liability to maintain a child, who is unable to maintain itself, is absolute. The first part of the above proviso postulates that there is no neglect or refusal to maintain a wife, in a case where the husband is offering to maintain her on condition of her living with him, and proceeds to state that, if in such a case a wife refuses to live with him, the magistrate may consider whether there is just ground for refusal and make an order under this section, notwithstanding such order. As pointed out above, the provision for making an order for maintenance is contained only in Sub-section (1).
The word 'order' appears in Sub-sections (2) and (3) also; but the reference therein is to the order made under Sub-section (1). It may also be noticed that the first part of the proviso refers in express terms to an order under this section, and not to an order under any particular sub-section. There is no warranty to limit its application to Sub-section (3) of the section, particularly when it is clear from its language that it would apply and is intended to apply to an order which the magistrate may make under Sub-section (1). I have, therefore, no doubt that the first part of this proviso applies to Sub-section (1). The second part of the proviso which is added by Act 9/1949 is only an explanation to the first part and it provides that contracting a marriage with another wife or keeping a mistress shall be considered to be a just ground tor a wife's refusal to live with the husband.
9. The High Court of Mysore has, in a recent decision in Shambu v. Ghalamma, AIR 1966 Mys 311, dealt with the conflict of Judicial opinion regarding the application of the aforesaid proviso. Their Lordships, after a review of a number of decisions of the Indian High Courts name to the conclusion that theproviso following Sub-section (3) of See. 488 Cr. P. C. governs not only Sub-section (3) but also Sub-section (1) of Section 488. I am in respectful agreement with this conclusion. As there is a detailed discussion of this question in the above decision, it is unnecessary for me to cover the same ground.
10. I shall now proceed to deal with the decisions cited by the respondent's learned counsel in support of his contention. He first referred to the decision of the High Court of Nagpur in State v. Anwarbi, AIR 1953 Nag 138. In this case, the learned single Judge held, that even though a wife is justified in not living with the husband since he is remarried, she was not entitled to maintenance, as she failed to show neglect or refusal on his part to maintain her. With great respect, I cannot agree with this reasoning. If a wife is justified in living separate from the husband, it is no valid plea for him to say that she voluntarily left his house, or that he is prepared to maintain her, if she returns to him. If a husband does not maintain a wife who is justified to live separate from him, it is an obvious case at refusal or neglect to maintain her.
Reference was next made by the learned counsel to a Division Bench decision of the High Court of Calcutta in Sm. Bela Rani v. Bhupal Chandra, AIR 1956 Cal 134. This decision differed from an earlier decision of the same Court in Panchu Copal Modak v. Dolly Modak, 59 Cal WN 767, wherein it was held that in a case where a wife is justified to live separate from her husband, his failure or refusal to give separate maintenance to her amounts to 'neglect or refusal to maintain' within the meaning of Section 488(1) Cr. P. C. The reason stated by the Division Bench in AIR 1956 Cal 184, is the same as mentioned in AIR 1958 Nag 133, though this decision of the Nagpur High Court was not referred to by the Division Bench.
11. The next decision cited by the learned counsel for the respondent is Ishar v. Soma Devi, AIR 1959 Punj 295. In this case the learned Judge followed the decisions in AIR 1953 Nag 133 and AIR 1956 Cal 134 and stated his conclusion as follows :
'I think that the mere fact that the husband has contracted a second marriage or has kept a mistress, by itself, is not a valid ground for claiming maintenance, under Section 488, if the husband has not otherwise neglected or refused to maintain her.'
In a latter part of the judgment, the learned Judge stated :
'.... After having contracted second marriage, the husband can no longer, as a condition precedent to maintaining her, impose upon her an obligation that she should live with him'.
There is an apparent contradiction in tbe above two statements. With respect, I agree with the latter statement of the learned Judge; and this is against the contention advanced by the petitioner's learned counsel. In Ranjit Kaur v. Autar Singh AIR 1960 Punj 221, a learned single Judge of the Punjab High Court dealing with the same question stated as follows:
'Where the husband offers to maintain his wife only on the condition of her living with him, and if the Court finds that the refusal by the wife to go and Hve with her husband is justified, such a conditional offer by itself would really amount to refusal on the part of the husband to maintain his wife if she continued to live away from him. Thus, where the husband has taken a second wife and he refuses to maintain his first wife, unless the latter is agreeable to go and live with him, the circumstance by itself will be sufficient to establish refusal of the husband.
The correctness of the decision in AIR 1959 Punjab 295, was questioned before a Division Bench of the same High Court in Mt, Dhan Kaur v. Niranjan Singh, AIR 1960 Punj 595. The decision of the Division Bench shows that it did not follow or accept the ruling in AIR 1959 Punj 295, though it has not been expressly overruled or dissented from.
12. Reference was then made by the learned counsel to a decision of the High Court of Allahabad in Ramji Malviya v. Smt. Munai Devi, AIR 1959 AH 767. In this case, the learned Judge has drawn a distinction between the words just ground' used in the first proviso appearing after Sub-section (3) of Section 488 Cr. P. C., and the words 'sufficient reason' occurring in Sub-sections (4) and (5) of this section, The learned Judge stated:
'A just ground for refusal to live with the husband must necessarily be a sufficient reason. A sufficient reason may not be a just ground, but a just ground must always be a sufficient reason'.
With great respect to the learned Judge, I am unable to follow this distinction. In my opinion, both these expressions are synonymous. The learned Judge then held that the first proviso appearing after Sub-section (3) applies only to Sub-section (3), and it has no application to Sub-section (1) of Section 488 Cr. P. C. As already stated, this is a view with which I cannot agree. Reliance was made by the learned counsel on the following passage appearing in this decision :
'Ordinarily, remarriage is a sufficient ground for refusing to live with the husband, but not if it is the natural and direct consequence of her prior refusal, without any sufficient reason, to live with him. She cannot take advantage of her own wrong; she cannot equip herself with a sufficient reason by refusing to live with the husband without any sufficient reason, and thereby compelling him to remarry'.
This proposition is apparently tbe sequence of the view which the learned Judge took on the application of the aforesaid proviso. If on the other hand, this proviso qualifies also subsection (1) of Section 488 Cr. P. C., the wife's prior conduct in living separate from the husband is irrelevant. Alt that is relevant is whether, at the time the wife claims maintenance and the husband offers to maintain her on condition of her living with him, she has a just ground for refusing to live with him; ana the second part of the proviso states that:
'If a husband has contracted a second marriage with another wife or keeps a mistress,it shall be considered to be sufficient ground for her refusal to live with him'.I am, therefore, unable to agree with the proposition contended for by the learned counsel on the authority of the Allahabad High Court. I have already considered the question of mutual rights and obligations between a husband and wife, and held that these rights and obligations subsist, so long as the marriage subsists, subject to the provisions contained in Section 488 Or. P. C. Hence the wife has always got the right to call upon her husband to maintain her, and he is not entitled to insist that she should live with him as a condition for maintaining her, if he has by his conduct disqualified himself for cohabitation with him. Second marriage or keeping a mistress is a disqualification under the Section.
13. Reference may also be made to the decision of Ananthanarayana Ayyar J. in Iqbalunnisa Begum v. Habib Pasha, AIR 1961 Andh-Pra 445, wherein His Lordship held that the proviso appearing after Sub-section (3) of Section 488 Cr. P. C. relates only to the enforcement of an order for maintenance under Subsection (3), and does not apply to Sub-section (1) dealing with an order for maintenance, and consequently, the fact that a husband has contracted a marriage with another wife or is keeping a mistress is not a just ground for the wife to refuse to live with him. There are also a few other decisions which take a similar view, with which I do not agree for the reasons already stated.
14. This question came up for a detailed consideration before a Division Bench of the Mysore High Court in AIR 1966 Mys 311. After examining a number of decisions of various High Courts dealing with this question their Lordships held as follows :
'Under Sub-section (1) of Section 488 Cr. P. C. it is open to the husband both before and after an order of maintenance is passed by a Magistrate to offer to maintain the wife on condition of her living with him. It is equally open to the wife to refuse to live with the husband, if he has taken a second wife or is keeping a mistress which is provided for in the first proviso following Sub-section (3). When the law provides that the husband taking a second wife or keeping a mistress is just around for wife's refusal to live with him, the husband's offer to maintain her only on condition of her living with him would impliedly amount to refusal to maintain her as required under Sub-section (1) of Section 488 Cr, P. C. Therefore, if a husband, admittedly, has contracted another marriage or if it is proved that be has kept a mistress and in reply to an application for maintenance by the other wife, he offers to maintain her on condition of her living with him when the wife refuses to live with him, it is sufficient for the Magistrate to pass an order of maintenance without further proof of neglect or refusal'.
I respectfully agree with the aforesaid statement of few.
15. A similar view has been taken by the Madras High Court in Kandaswami v. Nachammal,AIR 1963 Mad 263, on this question, though it held that the proviso appearing after Sub-section (3) of Section 488, Cr. P. G. relates only to Sub-section (3), and that it has no application to Sub-section (1). In Sm. Gouribala v. Nityanada, AIR 1965 Cal 190, a learned single Judge of the High Court of Calcutta held as follows :--
'The fact of a second marriage by husband provides just ground for the wife's refusal to live with the husband, and if the husband either neglects or refuses to maintain the wife at her separate residence, that amounts to the neglect and refusal mentioned in Sub-section (1) of Section 488 Cr. P. C.'
This decision is referred to by a Division Bench of the same High Court in Rupchand v. Charubala, AIR 1966 Cal 83. Their Lordships felt that they were bound by the earlier Division Bench decision of this Court in AIR 1956 Cal 134, and attempted to explain the decision of the learned single Judge.
16. There is an instructive discussion on this question in the decision of a Division Bench of the High Court of Bombay in Tejabai v. Shankar Rao, AIR 1966 Bom 48, and their Lordships came to the conclusion that a wife living separate from her husband is entitled to claim maintenance from her husband, on the ground that the husband has contracted marriage with another wife. In my opinion the view expressed by the High Courts of Mysore and Bombay gives a correct interpretation of Section 488 Cr. P. C. on the question under consideration. I, therefore, hold that the contention of the respondent's learned counsel that the petitioner is not entitled to claim maintenance from the respondent, as she has been living separate from him by mutual consent, even before he began to keep a mistress or contracted the illegal marriage, cannot be sustained. In the result, the order of the Courr below is set aside.
17. The lower Court has not consideredany question of the quantum of maintenancethat the petitioner would be entitled to getfrom the respondent. This has to depend on avariety of circumstances in this case, such asthe means of the respondent, the number ofchildren he has to maintain, and also the factthat the petitioner has been living for a verylong time separate from the respondent, on herown accord for the reasons found by the Courtbelow. I, therefore, remit the case to the lowerCourt to determine the quantum of maintanance to be paid to the petitioner and for disposal of the case according to law.