JUDGMENT D.N. Roy, J. - This petition raises the question whether the portion of proviso (1), Sub-section (3) of Section 488 of the Code of Criminal Procedure, which was inserted by the Code of Criminal Procedure Amending Act (No. IX of 1949), has been repealed by the Repealing and Amending Act No. XLVIII of 1952. This portion is in the following terms: 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. 2. The facts of the case are simple and not in dispute. The Petitioner Smt. Sarvari was wedded to Shafi Mohammad opposite-party seven years back. The two lived together as husband and wife and there was a child by this union. Shafi Mohammad has taken another wife. Smt. Sarvari therefore refused to live with him and she has claimed maintenance under the provisions of Section 438 of the Code. 3. The Repealing and Amending Act of 1932 repealed the Criminal Law Amendment Act No. IX of 1949, but Section 4 of the Repealing and Amending Act mentioned that the repeal by this Act of any enactment shall not affect any other enactment to which the repealed enactment has been applied, incorporated or referred to. The words of Section 4 of the Repealing and Amending Act of 1952 seem to have escaped the notice of the learned Magistrate when he held that the Criminal Law Amendment Act No. IX of 1949 now stands repealed and therefore the wife cannot take advantage of the provisions in the proviso to Sub-clause (3) of Section 488, Code of Criminal Procedure quoted above. 4. The quest on. came to be considered by the Punjab High Court in Mohindar Singh Vs. Mst. 4. The quest on. came to be considered by the Punjab High Court in Mohindar Singh Vs. Mst. Harbhajan Kaur, AIR 1955 P&H 141 and there it was observed that the Repealing and Amending Act of 1952 was designed to secure two ends, namely to repeal certain enactment and to pre serve certain others; that it repealed the Act of 1949 and obliterated it completely from the records of Parliament, but at the same time it declared in Section 4 that, though the Act of 1949 has been repealed, the substantive portion of the Act of 1949 which was incorporated in the Code of Criminal Procedure and which became a part and parcel of it, continues to remain intact; and that the view that since the Act of 1949 has been repealed the new provision which was inserted in Section 488 by the Act of 1949 must fall with the Act by which it was enacted is wholly misconceived. I am in agreement with the view expressed in that decision. It is therefore obvious that the wife's claim for maintenance u/s 488 of the Code in the peculiar circumstances of the present case cannot fail on the ground that Act No. IX of 1949 stands repealed. 5. The husband having taken a second wife, the Petitioner has a just ground for refusal to live with him and she can under the circumstances claim separate maintenance. The right to maintenance conferred u/s 438 of the Code is a statutory right which the Legislature created irrespective of the nationality or religious faith of the partner. The only condition precedent to the possession of that right in the case of a wife being the existence of the conjugal relation. The right conferred upon the wife is independent of personal law and to claim protection of Mohammedan Law in derogation of the statutory provisions of the Code of Criminal Procedure will in my opinion be not permissible and it would not be open to the husband to say that since under the Mohammedan Law he can keep four wives at a time, the wife cannot claim separate maintenance if he has taken a second wife. 6. There now remains the question of the amount of maintenance to be considered. 6. There now remains the question of the amount of maintenance to be considered. No specific amount was fixed upon by the applicant in her application In her petition she contended that the average monthly income of the husband is Rs 200. The husband contended in his statement in court that he gets a daily wage of about Rs. 2-8-0 whenever he is in employment. He meant to say that his employment is never continuous. Having regard to the circumstances of the parties I think a sum of Rs. 10 per month as maintenance for the wife would meet the ends of justice. The child is living in the custody of the father as has been stated in the petition. 7. In result I allow the application, set aside the order of the courts below and direct the husband of Shaft Mohammad to pay Rs. 10 per mensem as maintenance to Smt. Sarvari the Petitioner. This amount is to be paid from the date of this order.