Jyotirmoyee Nag, J. - (1.) This Rule is directed against an order of the learned Judicial Magistrate passed in M. Case No. 224 of 1974 (T.R. No. 178 of 1977).
(2.) The wife-petitioner made an application under Section 125 of Cr.P.C. praying for monthly maintenance of Rs. 150/- per month for herself and Rs. 75/- per month for each of her two minor daughters from her husband. The case of the wife is that she was sent to her father's house by the opposite party before the birth of the second daughter. The opposite party did cot take her back, nor did he care to make any arrangement for her maintenance and the two minor children. Therefore, in such helpless condition she had to move an application for maintenance on the ground that she was being wilfully neglected by the opposite party and also on the ground that he had married for a second time. The learned Magistrate found that so far as the minor children are concerned they are entitled to maintenance as they are being brought up and look d alter by the petitioner and he accordingly granted a sum of Rs. 75/- to each of the minor daughters from the date of order, i.e. from 15th November, 1979. So far as the case of the wife petitioner is concerned, the learned Magistrate disbelieved the case of torture and neglect by husband as those allegations were not made in the petition filed by her and regarding the plea taken by her that her Husband had married for a second time which is a just ground for separate residence and for claiming maintenance, the learned Magistrate found that neither the petitioner nor her father nor even the witnesses could give the name of the second wife or the name of her father Accordingly he found the story of second marriage to be a myth and therefore, refused to grant any maintenance to the petitioner-wife. On behalf of the petitioner Mr. J.C. Bose has drawn my attention to the evidence of the petitioner who has stated both to her application for maintenance as well as in evidence in Court that her husband had married for the second time. This fact has not been denied in the written statement of the opposite party. Apart from this fact, the opposite party did not examine himself so that he could be cross-examined on this point by the wife. Furthermore, the statement made by the wife that the opposite party has married again for the second time is corroborated by P.W.6 who stated that when he asked the opposite party to take back the petitioner, the opposite party replied that he could not do so because he had married for the second time. This is good enough under for a proceeding under Section 125 of Criminal Procedure Code. In such a proceeding it is not necessary to strictly prove marriage as in a case under Section 494 of the Indian Penal Code observing all the formalities of a marriage. Above all, since this fact has not been rebutted by the opposite party who is the best person to do so, it must be taken to have been proved by the evidence on record which I have discussed above. Apart from this, the witnesses on behalf of the petitioner, viz P.W. 3 and P.W. 4 said that the opposite party had married for a second time. P.W. 4 has stated in his evidence that the opposite party has taken a girl of neighbouring village as the second wife, and he is living with her. These circumstances are enough to lead to the conclusion that the opposite party has married for the second time. Mr. Mukti Prasanna Mukherjee appearing for the opposite party has stated that it is necessary to prove that a legal marriage has taken place between the opposite party and the woman. As I have already stated the marriage need not be so strictly proved as in a prosecution under Section 494 of I.P.C. As such, my finding above in favour of the wife petitioner stands. Mr. Mukherjee has referred to several decisions of this High Court wherein it has been held that merely taking a second wife will not entitle the first wife to get maintenance under Section 488 of Cr. P. C. These cases are reported in 60 CWN 212 : AIR 1966 Calcutta-134 (?), AIR 1966 Calcutta 83. The case reported in AIR 1960 SC 190 will support the contention of Mr. Bose appearing for the petitioner that it is not necessary to prove negligence to maintain if it is proved that the husband has married for the second time during the life time of the first wife Mr. Mukherjee has submitted that so far as the decisions of the Division Bench reported in AIR 1960 Calcutta 83 & 60 CWN 212, these cases have been followed by other High Courts also. A portion of the judgment in the Division Bench reported in 60 CWN 212 is quoted beneath "Whatever might be the personal law of any wife, she must, in order to entitle her to an order under sub-section (1) of Section 488 Criminal Procedure Code, establish, inter alia, that there is a present neglect or refusal on the part of her husband to maintain her. The mere fact of a second marriage cannot ipso facto establish "such neglect or refusal" within the meaning of sub-section (i) of Section 488 Cr. P. C. for, a man may marry a second time and still not refuse to maintain his first wife. In our view, the mere fact that a husband has contracted marriage with another wife or keeps a mistress cannot, without more, be said to amount to neglect or refusal on the part I of the husband to maintain his wife within the meaning of sub-section (1) of Section 488 Cr. P.C."
(3.) This judgment was delivered on the 5th of September, 1955 and the wife prayed for maintenance in July, 1953. Such social changes have occurred since then and the view of the Supreme Court in this matter will also make it clear from the judgment reported in AIR 1974 SC 1488, Deochand v. State of Maharashtra & anr . It was held in that case that the wife the second respondent was justified in refusing to live with the appellant on account of the second marriage contracted by him and thereby the husband appellant was under legal obligation to maintain her as he had neglected to maintain her. The High Court of Bombay, was justified in awarding a sum of Rs. 50/- per month, as maintenance to the wife. The cases of the Supreme Court as well as the High Courts of other States on this point have been discussed in the. latest decision of the Full Bench of Jammu and Kashmir High Court. (Aziz Mohd. v. Must. Sayda Begam, 1981 Criminal LJ 267 J.K. (FB) . A portion of the majority judgment by the Acting Chief Justice may be quoted below:- "I am therefore, inclined to hold that the first proviso to sub-section (3) is a proviso as much to sub-s (1) as to sub-section (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 sub-section (I) the effect is that where a wife proves that she lives separately from her husband on the ground that her husband has taken a second wife or that he has kept a mistress, she will be entitled to the grant of separate maintenance, unless, of course, he has provided such maintenance to her".;