Aziz Mohd. vs Mst Sayda Begum

Dr. Anand, J.

1, An interesting, though an abstract, question of law that has been referred for decision by a learned Single Judge is; Whether a wife in terms of

first proviso to Subsection (3) of Section 488 Cr. P. C. can refuse to live with her husband and claim separate maintenance from him only on the

ground that he has contracted a second marriage As is apparent from the order of reference, the necessity for making the reference arose because

of divergence of judicial opinion on the question. Some courts have held that the taking of the second wife or keeping of mistress by the husband is

by itself not sufficient for passing an order of maintenance against the husband, unless it is proved that the husband has been guilty of neglect or

refusal to maintain his wife See Ishar V. Adst Soma Devi, AIR 1959 Punjab 295, Bela Rani Vs. Bhopal Chandra, AIR 1956 Calcutta J34 and

Iqbalunnisa Begum and another Vs. Habih Pasha AIR 1961 A. P. 445 in this connection).

2, A contrary view has been taken in some cases and it has been held that neglect or refusal, Or no neglect or refusal, the husband is liable to pay

separate maintenance to his wife on the sole ground that he has taken a second wife. This view has been taken in Dewan Singh Wasawa V.

Harbans Kaur Dewan Singh and another, AIR 1962 Punjab 247: H. Syed Ahmad V. N.P.Taj Begum. AIR 1951 Mysore 128; Abdul Ghaffar V.

Bibi Hafiza Khatoon, AIR 1968 Patna 307 and in Mst Biro Vs.. Behari Laf, AIR 1958 J & K 47 wherein a Division Bench of this court expressly

dissented from the view expressed in AIR 1956 Calcutta 134 (supra) and held that a wife would he entitled to maintenance merely on the ground

that the husband had contracted a second marriage and that 'it was not proper to hold that inspite of the proof of second marriage of the husband,

a wife claming maintenance was still required to satisfy the conditions Laid down in clause (I) of Section 488 Cr. P. C. namely, to prove neglect or

refusal to maintain by the husband',

Reconciling these two directly opposite views, It has been held by some courts that there can be no manner of doubt that under Subsection (I)

of Section 488 Cr. P. C. before a Magistrate can pass an order he must be satis6ed in regard to two matters namely : that the husband has

sufficient means and that he has neglected or refused to maintain his wife. Where the husband offers to maintain his wife on the condition of her

living with him and the court finds that the offer has been rejected by the wife on ground that the husband has contracted a second marriage, it

would be a 'just ground' for her to stay away and still claim maintenance. Reference in this connection may be made with advantage to Smt Ranjit

Kour V Dr, Avtar Singh. AIR 1960 Punjab' 221 and Govimratn Narandas V Ratanbal Nathurum AIR 1956 Saurashtra 105, where Chief Justice

Shah. Opined that theoretically speaking where a wife is living away from the husband on the ground that the husband has contracted a second

marriage an initial neglect or refusal by the husband is no doubt necessary to be made out in order that the magistrate can maintain the wife's

application for maintenance, but ""in practice no real difficulty will be felt because wife will be justified in living away from the husband and if the

husband does not maintain her separately then his failure will amount to 'neglect or refusal' entitling the wife to maintenance,

It appears that the conflict of judicial opinion has arisen because of the location of the first proviso to subsection (3) of Section 488 Cr. P. C.

It would be, therefore, advantageous to first notice the relevant provisions of Section 488 Cr, P. C,

488, Order for 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 Chief Judicial Magistrate or any other Judicial 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 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

directs.

(2) Such allowance shall be payable from the date of the order or if so ordered from the date of the application for maintenance.

(3) Enforcement of order : If any person so ordered fails with 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 herein before provided for levying fines and may sentence such person, for the

whole or any part of can 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 a 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, 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 [wile in whose favour an order has been made under this section is living in adultery, or that without sufficient reason she

refuses to live with her husband or that they are living separately by mutual consent, the Magistrate shall cancel the order,

5, A plain reading of the Section suggests that a wife seeking maintenance under Subsection (1) has to prove '""neglect or refusal"" on the part of the

husband who has sufficient means to maintain her. No order can be passed against a husband even if he has sufficient means unless 'neglect or

refuses on his part to maintain the wife has been brought home to him. 'Neglect or refusal' on his part may be express or implied or proved by his

conduct. Once, however, the Magistrate has found neglect or refusal', the wife would be entitled to an order of maintenance, unless the husband is

able to establish any of the defenses indicated in subsection (4) or where he does not have sufficient means to pay, the maintenance.

Mr; S. P, Gupta, learned counsel for the petitioner, has argued that first proviso to Subsection (3) of Section 488 Cr. P.Cis a proviso to

subsection (3) only not to sub section (1) of Section 488 Cr. P. C. and"" therefore, the court, at the stage of consideration of the application of the

wife for maintenance under section 488 (1) Cr. P. C. has no jurisdiction to consider the question whether or not the husband has contracted a

second marriage and that the question of the effect of second marriage of the husband would be a relevant consideration only at the stage of

enforcement of the order of maintenance under subsection (3). In the alternative it is argued that no court is entitled to order maintenance only on

the ground of the remarriage of the husband. Mr. Gupta has submitted that the view expressed in AIR 1958 J&K 47 needs reconsideration.

On the other hand Mr. Nargotra has argued, that the wife has a statutory right to live away from the husband if he has contracted a second

marriage and matter can be taken into consideration by the Magistrate deciding the claim petition of the wife under subsection (1) of Section 488

Cr. P. C. as, argues the learned counsel without applying his mind to this aspect of the case, the enquiry under subsection (1)f Section 488 Cr.

P.C. would b"" incomplete. According to Mr. argotra. the remarriage of the husband, ipso facto, would entitle the wife to an order of maintenance.

Indeed settled rule of interpretation of a statute is that the proviso to a particular provision of the statute only embraces the field which is covered

by that particular provision and carves out an exception to the provision to which it has been enacted as a proviso and no other provision (See

AIR 1955 SC. 95). In this view of the matter, from the location of the first proviso to subsection (3) it is evident that it is a provision to subsection

(3) only and to no other subsection or to section 488 Cr. P. C. as a whole. No doubt the word 'section' is used in the proviso but the mere use of

that expression would not make it a proviso to the entire section 483 Cr. P. C., because the legislature in its wisdom inserted this proviso to

section (3) only, intending thereby that it should be a proviso to subsection (3) only and not subsection (1) or the entire section 488 Cr. P. C. This

view is further strengthened by the fact that the proviso that immediately follows it relates definitely to Subsection (3) alone and not to subsection

(1). The necessity for adding the proviso to subsection (3), it appears, arose because the legislature thought it necessary, to enable the husband to

make yet another offer to the wife to maintain her. On her living with him, at the stage of enforcement of the order under Section 488 (1) Cr. P. C.

and at the same time giving a statutory right to the wife to live separately, if the husband has contracted a second marriage or taken a mistress. In

the absence of this right, at the stage of enforcement of the order under subsection (3) of Section 488 Cr. P. C. the Magistrate had no jurisdiction

to consider the offer of the erring husband to maintain his wife on the condition of her living with him howsoever, bona fide the offer of the husband

might have been, after an order of maintenance has been made. The magistrate was duty bound to enforce the order of maintenance, The only

remedy available to the husband was to move under subsection (5) for the cancellation of the order, but not without first paying the maintenance

awarded or suffering the penal consequences envisaged in subsection (3). It was to avoid this cumbersome process that the legislature introduced

the proviso, so that even at the stage of enforcerxent, an enquiry could be made by the Magistrate into the bonafide or otherwise of the offer of the

husband to take back the wife and maintain her on the condition of her living with him. The para added to the first proviso was meant to give a

statutory right to the wife to live away from the husband on the ground of his remarriage, irrespective of the personal law of the parties. Since,

without the proviso such an enquiry could not be made, at the stage of the enforcement of an order of maintenance, the proviso was incorporated

keeping in view the object of the provisions of Section 488 Cr. P. C., which aim at preventing the wife to become a destitute, on account of the

failure of her husband to maintain her. In the presence of subsection (4), there was no necessity to extend the said proviso to subsection (1) also

Subsection (4) governs the whole section, including subsection (1) and, therefore, no maintenance can be granted to a wife under subsection (1) if

the Magistrate finds, during an enquiry, that the wife is living in adultery or for no ""sufficient reason"" has refused to live with her husband, or where

she and husband are living separately by mutual consent If the Magistrate is satisfied that the wife, living separately, had a ""sufficient reason"" to

refuse to live with the husband, he would issue an order of maintenance inspite of her refusal, provided, however, 'neglect or refusal"" on the part of

the husband to maintain the wife has been established. Of course, the proviso to subsection (3) does not in terms apply to subsection (1) of S. 488

Cr P. C. but the principle contained in the proviso stands engrafted in subsection (4) itself which governs subsection (1) also. Though in the proviso

to subsection (3), the expression used is 'just ground' and the expression used in subsection (4) is ""sufficient reason'"" but in my opinion, what is a

'just ground' for the application of proviso to subsection (4) would also be a ""sufficient reason"" under subsection (4) and a magistrate considering

the claim of the wife under subsection (1) would be under an obligation to enquire whether or not the wife has a 'just ground' or a ''sufficient

reason"" to Jive separately from the husband 1 and claim maintenance.

Although the proviso governs only subsection (3), the provision that mirage by the husband is a 'just ground' for the wife's refusal to live with him

lays down a general principle, which must be borne in mind when it is to be enquired whether the wife's refusal to live with her husband is for any

'sufficient reason' within the meaning of Subsection (4) A ""just ground"" for refusal to live with the husband must necessarily be a ""sufficient reason

also. A wife who refuses to live with her husband on account of his marriage is, therefore, not prevented by subsection (4) from claiming

maintenance allowance under subsection 4), whether she should get it or not is of course a different question to be decided by the magistrate on

the facts of each case. A separate enquiry which is made into the offer of a husband to maintain the wife, when such an offer is made during the

execution proceedings under subsection (3), is not necessary when such an order is made during the proceedings under section (1). Cases may

arise where a man may marry a second time and still not 'refuse' or 'neglect' to maintain his wife. In that event, she can have no cause of action to

claim maintenance. Where during an enquiry under subsection (1) a husband offers to take the wife and maintain her but the wife refuses to live

with the husband it is the duty of the court to enquire whether thecae is any 'sufficient justification' for the wife not living with the husband and

claiming maintenance. Thus though the proviso to subsection (3) is a proviso to that subsection only, an enquiry into the offer of the husband

maintain his wife, is also completed at the stage of the making of an order under subsection (1). Remarriage or no remarriage, before a wife can

successfully claim maintenance, she must establish that the husband has, 'neglected' or refused' to maintain her because the remarriage of the

husband only affords a statutory ground to the wife to live separately and yet claim to be maintained by the husband. The reliance by Mr Nargotra

on Deochand V. State of Maharashtra and another A1K 1974 SC 1488 is misplaced. Though, the observations in the judgment do support the

contention of the learned counsel, that the remarriage by the husband would ipso facto entitle a wife to claim maintenance. However, the facts of

the above case show that 'neglect' on the part of the husband had been established therein and maintenance was awarded not only because the

husband had lemarried during the subsistence of the first marriage, The facts of the case in brief were : The wife filed an application under section

488 Cr. P. C. claiming maintenance on two grounds (1) that the husband was neglecting and refusing to maintain her and (2) that he had

contracted a second marriage. The trial magistrate dismissed the application holding that though the husband had contracted a second marriage, he

was not refusing or neglecting to maintain the applicant. A revision was preferred by the wife before the Sessions Judge, who took the view that

the mere fact that the appellant had contracted a second marriage, during the subsistence of his marriage with the applicant, was sufficient to entitle

the wife to an order of maintenance. He accordingly made a reference to the High Court recommending the setting aside of the trial magistrate and

for payment of maintenance. The reference was accepted by the High Court and maintenance was awarded in favour of the wife. The husband

was, how ever granted leave to file an appeal in the Supreme Court under Section 134 (1) (c) of the constitution. Dismissing the appeal of the

husband, their Lordships of the Supreme Court observed:

As the second respondent was justified in refusing to live with the appellant, the latter was under a legal obligation to maintain her. As he has

neglected to maintain her: the High Court was justified in passing the order under appeal.

Thus, it is obvious that the Supreme Court upheld the order of maintenance, not on the ground of remarriage of the husband alone but because

of the proof of 'neglect' on the part of the husband to maintain his wife. The remarriage of the husband was considered only as a 'just ground' for

the wife's refusal to live with the husband. In view of this Supreme Court judgment, it can, therefore, be said that the law Laid down in AIR 1958

Mysore, 128. AIR 1958 J&K 47, AIR 1962 Punjab 247 and AIR J9o8 Patna 307, is no longer good law and that the remarriage of the husband,

ipso facto, would not entitle a wife to claim maintenance without establishing 'neglect' or 'refusal' on the part of the husband to maintain her. The

remarriage of the husband would legally justify the wife to live separately from the husband and reject the offer of the husband, to go and Jive with

him and the refusal on this ground would not absolve the husband of his liability to maintain the wife and his 'refusal or neglect' to do so would

result in an order of maintenance being passed.

11 Thus, my answer to the question referred to the Bench is that the (marriage of the husband, ipso facto, would not enentitle a wife to claim

maintenance without further establishing, expressly or impliedly, 'neglect or refusal' on the part of the husband to maintain her, because proof of

'neglect or refusal' on the part of the husband to maintain his wife, is the sinequanon of an order under Section 485 Cr. P. C the case shall now be

listed before the learned Single Judge for its disposal on merits.

Sd/Dr, A. S. Anand, J.

Per Mufti Acting C. J,

Section 488 Cr. P. C. is welfare legislation interned to prevent neglected wives and children from starvation, vagrancy and destitution. This

section makes it obligatory on the husband to maintain his wife and on the father to maintain his children. The generally accepted principle under the

Muslim Law and, I believe, under other personal Jaws, is that the maintenance of one becomes obligatory upon another by three causes : marriage,

relationship and ownership. Maintenance of a child is due from his father while the child is unable to maintain himself. Maintenance is due to the

wife, lawfully married, from her husband because maintenance is compensation for her confinement and such confinement is for the benefit of her

husband. She is required to live under the same roof and share the bed with her husband and also be faithful to the marriage bond. She is entitled

to maintenance from her husband so long as she observes these conditions and not otherwise. This Section has given effect to this principle by

providing that a husband will be absolved of his obligation under this section towards his wife on proving (1) that she is living in adultery ; [2] that

without sufficient reason, she is living separately from him, or, [3] that she is living separately from him by agreement.

On the observations made above, which 'broadly reflect the object and scheme of section 488 Cr P. C. it is not difficult to see that the first

proviso to subsection [3] must be considered as a proviso as much to subsection [1] as to subsection [3]. For. the proviso speaks of a 'just

ground', What is a just ground must necessarily be construed as a sufficient ground. Therefore, any ground which is a 'just ground' for the wife's

refusal to live with her subsection ]3] must be treated to be a 'sufficient reason' for such refusal under subsection [i]. On principle, too, what is a

good ground for collecting separate maintenance under subsection [3] must ;be a good ground for levying such maintenance under subsection [1].

These considerations apart, there is intrinsic evidence in subsection [3] to show that the first proviso is a proviso as much to subsection [1] as

to subsection [3]. The proviso speaks of this section' and not of 'this subsection'. On its terms, therefore, it is a proviso to the section and not to

subsection [3] only. The location of the proviso would not affect its terms which must necessarily be given their full force and effect. It has,

however, been contented that the words 'such person' used in the proviso have reference to the person against whom an order of maintenance has

been made. On this interpretation we are required to read the words 'make an order under this section' used in the proviso as if the Legislature had

used the words 'make an order under this subsection'. It is a settled rule of construction that a statute cannot be so read as to alter its language

unless of course the language is ambiguous and not free from doubt. The language of the proviso does not. however, admit of any ambiguity. I am

therefore inclined to hold that the first proviso to subsection [3] is a proviso as much to subsection [I] as to subsection [3]. According to this

proviso if the husband has contracted marriage with another wife or keeps a mistress, it shall be considered to be a just ground for the wife's

refusal to live with him. Reading the proviso with subsection [1] the effect is that where a wife proves that she lives separately from her husband

has taken a second wife or that be has kept a mistress, she will be entitled to the grant of separate maintenance unless, of course, the husband has

alleged and proved that he has provided such maintenance to her. This is apparently the view expressed by this court in the case reported as AIR

1958 J & K 47. The view obviously does not need any consideration

In Bai Tahira Vs. All Hussain Fissali Chotia and anr. (AIR 1979 SC 362), the wife filed an application for maintenance under section 25 of the

Cr, Procedure Code : 1973 which corresponds to section 4S8 Cr. P. C. prevailing in our State. She proceeded on the footing that she was still a

wife while the respondenthusband rejected the status and asserted that she was a divorcee and therefore ineligible for maintenance. The Magistrate

who tried the petition held that the appellant was a subsisting wife and awarded maintenance. On appeal the Sessions Judge set aside the order

and dismissed the petition. The wife filed a revision petition in the High Court, but without success. She took the matter to the Supreme Court.

Dealing with the case, [the Supreme Court interlaid observed:

Section 125 requires, as a sine qua non for its application, neglect by husband or father, The Magistrate's order proceeds on neglect to maintain ;

the Sessions Judge has spoken nothing to the contrary and the High Court has not spoken at all. Moreover' the husband has not examined himself

to prove that he has been giving allowances to the divorced wife. His case, on the contrary, is that she has forfeited her claim because of divorce

and the consent decree. Obviously, he has no case of nonneglect, His plea is his right to ignore. So the basic condition of neglect to maintain is

satisfied. In this generous jurisdiction a broader perception and appreciation of the facts and their bearing must govern the verdict not choppoing

little logic or thinking with burden of proof"".

On these observations it is clear that neglect to maintain must be assumed where the husband does not plead and prove that he has provided

maintenance for his wife and on the other hand, pleads forfeiture. which he fails to prove. Thus the observations lend support to the view expressed

by me above.

In the circumstances my answer to the question referred would be that a wife would be entitled to the grant of separate maintenance on proof

of the fact that her husband has taken another wife during the subsistence of their marriage unless, of course, the husband has alleged and proved

that he has been providing such separate maintenance for her.

Sd/

Mufti BahaudDin Farooqi,

Acting C. J.

Per Kotwal J.

18 The question which has been referred to the full Bench for its opinion is whether a wife can refuse to live with her husband and claim separate

maintenance from him under section 488 (1) Cr. Pr. Code on the ground that he has taken a second wife.

The scheme of this section shows that if a husband despite having means neglects or refuses to maintain his wife, she may approach a

Magistrate for an order of maintenance and the Magistrate on proof of such neglect or refusal may pass an order granting maintenance in her

favour. This order shall be passed by him under subsection (1). This subsection has, however, to be read along with Subsection (4), which

provides that a wife who is living in adultery, or refuses to live with her husband without sufficient reason, or is living separately by mutual consent,

shall not be entitled to any maintenance. Cases are receivable where an application is made by a wife and the defense set up by the husband is

either that she is living in adultery, or is living separately by mutual consent of the parties, or that he is prepared to maintain her in case she lives with

him. The Magistrate shall make an enquiry into these allegations and on being satisfied, either that the wife is leading an adulterous life, or is living

separately by mutual consent of the parties, or has spurned he husband's offer to live with him without sufficient cause, shall dismiss her application,

proof of reflect or refusal on his part to maintain her notwithstanding. Cases are also conceivable where the wife after an order of maintenance has

been passed in her favour, starts leading an adulterous life, or the parties agree to part company with each other, or the husband offers to maintain

her on the condition that she lives with him and she declines the offer without sufficient reason. The Magistrate is bound to make an enquiry in

regard to these allegations and if satisfied about their truth shall cancel the order granting maintenance in her favour. Subsection (4) is applicable to

a case which is at a stage where an order granting maintenance i"" yet to be passed by the Magistrate under Subsection (1). Subsection (5) on the

other hand, applies to a case in which an order granting maintenance has already been passed in favour of the wife. Clearly, therefore, a husband

has a right not only to resist his wife's claim for granting maintenance by making an offer to maintain her on the condition that she has also a right to

resist the order of maintenance itself by making a similar offer to her.

Subsections (I) and (4), strictly speaking, do not make mention of the husband's remarriage as a ground for his wife's refusal to live with him,

though the explanation to the first proviso to Subsection (3) specially says so. This omission has indeed created a conflict in judicial opinion as to

whether or not the husband's remarriage can constitute a sufficient cause for the wife's refusal to live with him and claim separate maintenance

under subsection (1) of Section 488. One view is that under Subsection (1) a wife is not entitled to any maintenance so long as the husband is

willing to maintain her. The fist proviso to Subsection (3), entitling a wife to refuse to live with her husband on account of his second marriage,

according to this view, not being a proviso to Subsection (1) also, the wife so refusing, even when her husband is prepared to maintain her, cannot

be said to have been neglected or refused maintenance by him, which is a condition precedent for granting maintenance in her favour under

Subsection (1), for the neglect and refusal to maintain her in such circumstances will be an outcome of her own violation This view has been taken

in Ishar Vs. Mst. Soma Devi, AIR 1959 Punjab 29:, Dewan Singh Wasawa Singh V. Harbans Kaur Dewan Singh and anr. AIR 1962 Punjab

247, Smt. Bela Rani Chatterji Vs, Bhupal Chandra Chatterjee, AIR 1956 Calcutta 34 and Iqbulunnisa Begum and another Vs. Habib Pasha, AIR

1961 Andhra Pradesh 445. The contrary view, that remarriage of the husband simplicities would be a sufficient cause for his wife's refusal to live

with him and claim separate maintenance from him under Subsection (1), has been taken in Smt. Ranjit Kaur Vs. Dr. Avtar Singh, AIR 1960

Punjab 221, H. Syed Ahmad Vs. Naghath Parveen Taj Begum. AIR 1958 Mysore 128 and Mst. Biro Vs, Behan Lal, AIR 1958 J & K 47.

According to these High Courts, remarriage of a husband would ipso facto constitute a sufficient cause for his wife's refusal to live with him,

entitling her to claim separate maintenance from him under Sub section (1), as the first proviso to Subsection (3) is also a proviso to Subsection (I)

21, As a general rule, a proviso is a clause added to an enactment for the purpose of acting a restraint upon, or as a qualification of the generality

of the language, which it follows, But often time a proviso may be an independent enacting provision, not controlled by, or not controlling what

immediately precedes it. Its Leal character may have to be determined from the purpose it is intended to serve. The first proviso to Subsection (3)

speaks of making an ""rder under section 488 as a whole and not of making an order under Subsection (3) only. True, its location, coupled with the

expression ""such person"" occurring in it, may make it a proviso to Subsection (3) alone, nevertheless the generality inherent in the nature, the object

which it is supposed to serve and the use of the expression ' may make an order under this section notwithstanding such offer"" occurring in it may

make it a proviso to Subsections (1) and (4) as well, thus rendering it an independent enacting provision, It is an established rule of interpretation of

statutes that where a provision is an Act is capable of two interpretations, the one which promotes the object of the Act shall be preferred

(Mubarak Hussain Vs. Abjiad and others, AIR 1924 Allahabad 328 (F. B.). Workmen of P. T. &, R. Co. Vs. The Management and others, AIR

1973 S.C. 1227 and the state of Gujarat Vs. Chaturbhuj Maganlal, AIR 1976 S. C. 1697).

Section 488 is a welfare legislative provision aimed at providing a cheap and speedy remedy to destitute wives and preventing them from

entering the stage of vagrancy. A husband taking a second wife of his choice, while his first wife is still alive can hardly be expected to have any

sympathy for his first wife, to render his offer to maintain her as a bona fide one in case she is prepared to live with him. Interse jealousy of wives,

which is a natural phenomenon, may make the condition of the discarded wife still worse. To ask such a wife to prove neglect and refusal to

maintain her on the part of her husband, would in such circumstances prolong, if not perpetuate her destitution and the i.e. is every likelihood that

such destitution, If allowed to continue unabated, may take the form of vagrancy. Viewed thus, restricting the application of its first proviso to

Subsection (3) alone would fail to serve the benign object for which Section 488 has been enacted, . On the other hand, treating the proviso as an

independent enacting provision, applying pariprssu to Subsections (1) and (4) as well, will surely advance the object of the legislation.

Furthermore, it really does not stand to reason that the legislature disfavored a second marriage of the husband if it took place after the order of

maintenance against him, but not the one which took place before that Viewed from any angle, therefore, the first proviso to Subsection (3) is an

independent provision applying to Subsections (1) and (4) as well.

All that has been said heretofore is more or less as an academic interest, because the point after their Lordships authoritative pronouncement in

Deochand Vs. State of Maharashtra and another, AIR 1974 S. C. 1488 is no more reintegrate. In the case before the Supreme Court the wife

had claimed maintenance under section 488 on the ground that she had been neglected and refused maintenance by her husband: It was, however,

the admitted case of the parties that the husband had taken a second wife. Her petition was dismissed by the Judicial Magistrate on the ground that

she having failed to prove actual neglect or refusal on the part of her husband to maintain her, was not entitled to any order under SubSection (I)

her husband's remarriage notwithstanding The Sessions Judge, however, took a different view. According to him, a wife was not required to

proves any such neglect or refusal to claim separate maintenance from her husband, as her own refusal to live with him on the just ground of his

court marriage would constitute neglect and refusal on her husband's part to maintain her. He, accordingly, made a reference to the High Court

which was accepted. Appeal taken to the Supreme Court also failed and Chandrachud J, as his Lordship then was, accorded approval to the view

taken by the Sessions Judge and the High Court by observing ""As the second respondent was justified in refusing to live with the appellant, the

later was under a legal obligation to maintain her. As he has neglected 10 maintain her the High Court was justified in passing the order under

appeal.

It was not, therefore, a case where the Supreme Court had upheld the order because it was satisfied on reappraisal of the ""evidence that the

husband had, in fact, neglected or refused to maintain his wife, rather it was a case where the order was upheld because such neglect and refusal in

their Lordships' opinion would still be there even if the wife had of her own choice refused to live with her husband on the ground of his second

marriage. A husband, according to their Lordships, was legally bound wife who had refused to live with him on account to maintain his wife who of

his remarriage as she to Subjection (1) as an independent enact, proven governing not only Subsection (3) but section 488 as a whole.

24 Mrs.Gupta then argued that section 488 should have no application to Muslim who under their personal law can have wives at a time Answer

to this argument is contained in case (supra) (AIR 1958 Mysore 128):

The plea of personal law makes no appeal to me. The Criminal Procedure Code is a law of the land and not of any community. If there is a

conflict between tie law enacted by the legislature and the personal law then the former prevails. The legislative will is supreme in this land unless

controlled by the Constitution. There no constitutional guarantee to respect the personal law of any community. There is no doubt that the

amendment in question is the result the working of social forces."" view of their Lordships' dictum in Deochand's case (supra), AIR 197S S C

1488), the decisions taking a contrary view, can no longer be' said to lay down a good law.

25 For all that has been said heretofore, my answer the question would be in the affirmative. The case will now go back to the learned Single

Judge for decision on other points