ORDER N.M. Golvalker, J. This is a revision petition by the husband challenging the order dated 18-1-1960 of the Magistrate 1st Class, Chhindwara, ordering him to pay maintenance allowance of Rs. 60 per month to his wife and Rs. 50 for his two children living with her. The learned 1st Additional Sessions Judge, Chhindwara, upheld that order and declined to refer the matter to this Court. The question whether the husband had kept the younger sister of his wife as his mistress in the house and whether she gave birth to an illegitimate issue as a result of his criminal intimacy with her being questions of fact concurrently answered against the petitioner could not be reopened. Even otherwise also I find the evidence on record sufficiently conclusive to support the findings. I do not, therefore, feel disposed to disturb those findings. The only legal question affecting the legality of the award of maintenance allowance to the wife and children urged before me is that without proof of neglect or refusal on the part of the husband to maintain his wife and children, the mere fact of his keeping a mistress in the house could not by itself be a ground for such an award. The argument of the learned counsel appearing for the petitioner, as I have understood it, is this. That the second marriage contracted by the husband or the fact that he has kept a mistress in the house may be a good ground for the wife to refuse to live with him. But to enable her to claim maintenance allowance either for herself or for the children she will have to prove primarily that there was either neglect or refusal to maintain her on the part of her husband. According to him the existence as a fact of neglect or refusal contemplated under section 488, Criminal Procedure Code, is a condition precedent to the grant of maintenance allowance. In support of this contention be relied on the following observations made by this Court in the case of State of M.P. v. Deobati and another 1960 MPLJ 817 : The fact of having a second wife entitles the first wife to refuse to live with the husband and at the same time claim maintenance under section 488 of the Code of Criminal Procedure. But then the first condition, that he neglects or refuses to maintain her has to be established. The mere fact that a second wife has been taken does not necessarily mean that the husband neglects or refuses to maintain the first wife. In the course of his argument he submitted that the amendment whereby contracting of the second marriage or the keeping of a mistress in the house by the husband is recognised as a just ground for wife to refuse to live with him, would come into play only when the order granting maintenance is sought to be enforced under sub section (3) of section 488, Criminal Procedure Code. He means to suggest that if in the course of execution of that order the husband were to make an offer to maintain his wife on condition that she comes and stays with him under his roof, the Magistrate will have then to consider whether the wife has any just grounds to refuse to comply with the said condition, and only if she is found to have such grounds that the order awarding maintenance allowance will be enforced. Otherwise the Magistrate can refuse to enforce that order. The grounds recognised under the said amendment are according to him irrelevant at the initial stage when the petition is being decided in terms of sub-section (1) of section 488. In the view that I take I feel that the aforesaid contention raised by the petitioner and the submission made thereon have no substance and are entirely misconceived. The learned counsel for the petitioner, although accepted that the aforesaid amendment has to be read into the first proviso in section 488, contended that the proviso was to sub-section (3) of section 488, Criminal Procedure Code. In my opinion the first proviso truly governs only sub-section (1). At any rate it is in substance as proviso to that sub-section. As otherwise, if the submission of the petitioner is accepted, the result would be that notwithstanding second marriage or a mistress in the house a wife would never be entitled to claim any maintenance without there being any prior neglect or refusal to maintain her on the part of the husband while living under his roof with him. As otherwise, if the submission of the petitioner is accepted, the result would be that notwithstanding second marriage or a mistress in the house a wife would never be entitled to claim any maintenance without there being any prior neglect or refusal to maintain her on the part of the husband while living under his roof with him. Such narrow construction fails to take into consideration the fact that negligence or refusal to maintain could either be express or implied and the conditional offer in derogation of wife's right to stay apart in certain circumstances can have no recognition. It is the primary duty of a husband to maintain his wife and to make provisions for the same of his own accord, whether she stays with him under the same roof or stays away and separate from him in the circumstances permitting such separate residence. Hence even mere omission on the part of the husband to provide for the requisite maintenance, without there being any prior demand for the same by the wife, would, in my opinion, be deemed to be a refusal in the eye of law within the purview of section 488(1), Criminal Procedure Code. In my opinion the wife immediately after leaving the house of the husband, consequent to his contracting a second marriage or to his keeping a mistress in the house, can put in a claim for maintenance without there being till that date any express refusal on the part of her husband to pay it. Her petition cannot be rejected in limine on the simple ground that there was no prior demand for maintenance and hence no refusal by the husband. No doubt the husband can appear in response to the said petition and offer to make provisions for her maintenance at the place where she has taken her abode. But in answer to that petition if he were to offer to pay maintenance on condition that she agrees to stay with him under the same roof notwithstanding that he has either contracted a second marriage or has kept a mistress in the house, his answer would have to be taken as a sufficient refusal within the meaning of section 488(1), Criminal Procedure Code. The initial silent omission on his part would then stand out reinforced as an express refusal enabling the Magistrate to pass necessary orders. The initial silent omission on his part would then stand out reinforced as an express refusal enabling the Magistrate to pass necessary orders. It is in such a situation that in my opinion the proviso would be attracted requiring the Magistrate to determine if the conditional offer is good and valid or there are any just grounds, one of them being either a second marriage or keeping of a mistress, for the wife to lawfully decline such offer and to claim separate allowance. The order contemplated by the proviso is the primary order either of granting allowance or of its refusal. It is certainly not either of enforcement of the order or of refusal to enforce it. The expression used in "may make an order under this section notwithstanding such offer". I would lay emphasis on the words "order under this section" meaning the initial order contemplated under sub-section (1). There can never be entertained an offer to maintain her, once an order granting maintenance has been passed. Such an offer at any subsequent stage would be meaningless and would not affect the order already passed. That order can be recalled only if circumstances contemplated in sub-section (5) of section 488, Criminal Procedure Code, are found to exist. So in my opinion the first proviso governs only the sub-section (1) of section 488 and no other. This is borne out by the provisions made in sub-section (4) of section 488, Criminal Procedure Code, whereby the claim for maintenance initially could be refused only if the conditions stated therein are found to exist. In my opinion it cannot be reasonably urged that the Legislature has provided two opportunities to the husband, one at the initial stage and the second when the order is sought to be enforced, for securing rejection of wife's claim for maintenance. Otherwise there would be no finality attached to the order granting maintenance and the order would be rendered liable to be reopened. Otherwise there would be no finality attached to the order granting maintenance and the order would be rendered liable to be reopened. So then if the wife is simply able to show to the Court that either there has been an omission to provide for her maintenance by the husband of his own accord without there being any demand for it prior to the date of the application under section 488, Criminal Procedure Code, or that during the proceedings in Court there have come on record circumstances amounting to refusal in law to provide maintenance, her claim has to be granted. I do not agree with the submissions made by the learned counsel for the petitioner that neglect or refusal on the part of the husband has to be determined without any reference to and independently of the fact of his either contracting a second marriage or keeping a mistress in the house. If he has contracted a second marriage or has kept a mistress in the house justifying his wife to stay away and separate, his mere inaction alone would amount to refusal and his subsequent conditional offer would mean express refusal, being evidence of his intentions of not providing any maintenance from the inception unless she was prepared to abandon her right to stay separate in the circumstances. In both these situations the order granting allowance would be fully justified. When the fact, that the husband has either contracted a second marriage or has kept a mistress in the house, is made a ground for grant of maintenance it is simply because that fact coupled with inaction on the part of the husband to provide for maintenance necessarily suggests refusal which in my opinion is implicit there. It would be wrong therefore to suggest that the maintenance has been granted simply on account of the second marriage or of a mistress in the house. That there may not be passed an order for maintenance, the husband can offer to pay it unconditionally. Thus the legal position that the wife has first to establish either neglect or refusal on the part of the husband to provide for her maintenance before being entitled to claim an order for its grant means no more than this that either there is shown an express refusal or that the refusal is shown to be by implication. Thus the legal position that the wife has first to establish either neglect or refusal on the part of the husband to provide for her maintenance before being entitled to claim an order for its grant means no more than this that either there is shown an express refusal or that the refusal is shown to be by implication. That the wife has a right to refuse to live with her husband when he has contracted a second marriage or has kept a mistress in the house necessarily means a corresponding liability of the husband to recognise that right and to pay for her a separate maintenance. As otherwise the recognition of that right will have no meaning if the corresponding liability of the husband is not given effect to by ordering to pay maintenance allowance. Thus in this view that I have taken I reject the contention that the fact, that the husband has contracted a second marriage or has kept a mistress in the house, by itself cannot be made a ground for grant of maintenance to his wife. In the instant case the evidence on record is sufficient to find that the husband has neglected and refused to maintain his wife. But in the view that I have taken grant of maintenance on the ground that the petitioner has kept his wife's sister as his mistress in the house is quite in order and I uphold the same. The result, therefore, is that this revision petition fails and is dismissed. Petition dismissed