TMI Blog1958 (2) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... as recently taken a second wife. 3. In reply, Ishar contended that he did not maltreat her and Soma Devi left his house of her own accord. 4. In support of maltreatment Soma Devi herself appeared and alleged that she used to be threatened by her husband and her mother in law on several occasions and ultimately she was turned out of the house. She was given shelter by her parents and is now receiving a sum of Rs. 34/-per mensem by serving in the Municipality of Patiala. But the Magistrate did not accept her solitary statement to be sufficient proof of maltreatment. He, however, thought that she was entitled to maintenance on the ground that her husband had married again, and for this reason he ordered the husband to pay Rs. 12/- per me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e with him. It is, therefore, important to note that contracting of marriage with another woman merely furnishes a just ground for the first wife to refuse to live with her husband. 8. There is no causal connection between right of maintenance and contracting of a second marriage. The condition precedent for being entitled to an order for maintenance in the case of a wife is, that her husband having sufficient means neglects or refuses to maintain her. In the absence of sufficient means, or of proof of neglect or re-fusal to maintain his wife, or in the absence of circumstances justifying such a refusal, the mere act of contracting a second marriage will not, per se be a ground to claim maintenance, though it will furnish a just cause fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Bela Rani v. Bhupal Chandra, AIR 1956 Cal 134, J. P. Mitter, J. observed : The mere fact of a second marriage cannot ipso facto establish 'such neglect or refusal' within the meaning of Sub-section (1) of Section 488, Criminal Procedure Code, 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 of the husband to maintain his wife within the meaning of Subsection (1) of Section 488, Criminal Procedure Code. In State v. Mt. Anwarbi, AIR 1953 Nag 133, Hemeon, J. said : The mere fact that a husband has married ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g of food raiment, and shelter. 10. The legislature has advisedly used two words neglect and refuse. Refuse means a failure to maintain when asked to do so, while neglect means a failure on the part of the party bound to maintain, even in the absence of a demand. A husband, therefore, without refusing to maintain his wife, may still be guilty of neglecting to maintain her, When there is avoidance or disregard of duty whether from heedlessness, indifference or wilfulness, it is a case of neglect. The term neglect includes disregard of duty wilfully as well as unintentionally. A person is said to refuse when he denies or declines to do what is asked of him. Refusal is always a wilful and a deliberate act. On the other ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... husband contracts a second marriage it will be considered a just ground for the wife's refusal to live with him. Counsel has also referred me to an unreported decision in Criminal Revn. No. 1308 of 1956, Mst. Jasmer Kaur v. Bachan Singh, where maintenance order was made, not only because of the marriage of the husband, but also because, it was found on the facts of that case, that the husband had otherwise neglected and refused to maintain his wife. 14. It, however, appears to me that the Magistrate has not taken into consideration all the circumstances which should have been examined. He has stated, that out of the entire lot of witnesses examined by Soma Devi, she herself is the only person who has deposed, that the respondent bea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r to see, whether credible material had been placed on the record, regarding neglect or refusal to maintain. The Magistrate has riot cared to find an answer to the real question whether on this record, proof has been furnished by the petitioner supporting the conclusion as to neglect or refusal to maintain her. There is sufficient evidence on the record to show that despite the desire of Soma Devi, to live with him, her husband has declined to keep her in his house. She was a young woman and in view of the harsh treatment of the respondent, she was compelled to seek shelter under the parental roof. She did not choose wilfully and without justification, to live away from her husband. This is not a case where a wife has, of her own free will, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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