JUDGMENT : B.C. Das, J. - This petition is against an order u/s 488(1), Code of Criminal Procedure directing the husband, the Petitioner here, to pay a monthly allowance of Rs. 25/- to the wife and Rs. 10/- to his son who is a child. 2. The relationship of husband and wife is not questioned nor is the fact that meanwhile the husband had married a second wife. The learned Magistrate has found that no refusal or neglect as such on the part of the husband has been proved; none the less, he has drawn an inference that since the wife was justified' in refusing to live with the husband, he having taken a second wife, there was "lawful neglect" on the part of the husband and as such the wife was entitled to claim maintenance. 3. For this, reliance has been placed upon the case reported in Abdul Ghaffar v. Bibi Hafifa Khatoon AIR 1968 Pat. 807. The matter had been taken up before the Sessions Judge, Koraput in revision who however declined to make a reference on the ground that the question of refusal or neglect to maintain the wife does not arise in view of the provisions in Section 488(3) where under a second marriage was to be considered to be a just ground for the wife's refusal to live with the husband and the second marriage ipso facto entitles the wife to a monthly allowance. 4. The points urged in support of the petition are that. (i) the learned Magistrate has fallen into an error of record in so far as he finds that there was ill treatment of the wife by the husband as deposed to by her; (ii) it is on this error of record that the Magistrate purports to draw an inference of "lawful neglect"; (iii) the just ground for refusal by the wife namely the second marriage by the husband is not tantamount to neglect or refusal as envisaged in Section 488(1), Code of Criminal Procedure; (iv) in any event the second proviso to Section 488(3) does not qualify Section 488(1); and (v) there is no finding of neglect or refusal to maintain the child. 5. 5. On The first point the learned Magistrate rightly takes note of the fact that but for the evidence of the wife no other witness on her behalf deposes to any ill treatment by the husband and further that no witnesses were examined on her behalf to speak about any refusal or neglect to maintain on the part of husband. Nonetheless, he observes, while arriving at his finding of unlawful neglect" that even though the question of ill treatment and neglect as deposed to by the wife is no corroborated by any other evidence, her solitary evidence, to that effect cannot entirely be disbelieved in so far as the ill treatment and neglect is concerned after the husband had brought the second wife to his house. It has been pointed out by the learned Counsel on behalf of the Petitioner that such a finding cannot be allowed to stand in view of the clear statement in cross-examination of the wife wherein she says: Even now I am not at all inclined to go and live with the opposite party either in his building or in a separate residential building given by him. Though the opposite party does not ill treat me I refuse to go and live with him. 6. The learned Counsel is entirely correct in his submission that this important aspect of the wife's evidence has not been considered by the learned Magistrate and also that in respect of the maintenance of the child he has not considered any evidence on record or arrived at any finding of neglect or refusal to maintain the child. 7. The main issue then is whether the first two provisos to Sub-section (3) of Section 488, Code of Criminal Procedure also apply to Sub-section (1) of the said section and whether assuming that they do, the mere fact of there being a just ground for refusion the pat of the wife to live with the husband because of his second 'marriage dispenses with the necessity of a proof of neglect or refusal within the meaning of Sub-section (1). 8. Several decisions have been cited 'before me for and against the proposition that the provisos qualify Sub-section (1) also. 8. Several decisions have been cited 'before me for and against the proposition that the provisos qualify Sub-section (1) also. The cases cited on behalf of the Petitioner in effect hold that though at first sight it appears that the second proviso which is virtually in the nature of an explanation, applies only after an order is made under Sub-section (1), the language of the proviso makes it clear that the Magistrate may consider such ground of refusal on a wife's part in making an order under Sub-section (1). Even so, nothing more than what the explanation says can be read into it. Nor can the personal law of the parties be of any account. 9. Thus, even though the explanation does apply to Sub-section (1) the second marriage cannot ipso facto establish neglect or refusal within the meaning of Sub-section (1) and this must have to be proved before maintenance can be ordered, the reason being that a man may marry a second time but still may not refuse to neglect or maintain the first wife. This must be the position even though such neglect or refusal may be express or may have to be inferred from the conduct of the husband. This view is supported by the decisions reported in Bela Rani Chatterjee Vs. Bhupal Chandra Chatterjee Rupchand Mahato Vs. Charubala Mahatani S. Bhagawat Singh v. Income Tax Commissioner AIR 1959 Puri. 595, and The State v. Mt. Anwarbi and Ors. AIR 1953 Nag. 133. 10. On the other hand, the case reported in Ramji Malviya Vs. Smt. Munni Devi Malviya holds that the second proviso to Sub-section (3) of Section 488, Code of Criminal Procedure does not qualify Sub-section (1) of the sub-section. But as a general principle the second proviso should be taken into consideration in the contest of Sub-section (1). The view expressed therein is that the proviso has been enacted in order to give the husband one more opportunity of offering to maintain the wife on condition of her living with him. 11. The case reported in Iqbalunnisa Begum and Another Vs. Habib Pasha takes the view that the proviso having been linked to Sub-section (3) only, it really relates to enforcement of an order which comes u/s 488(3) and not to a grant of maintenance u/s 488(1), Code of Criminal Procedure. 11. The case reported in Iqbalunnisa Begum and Another Vs. Habib Pasha takes the view that the proviso having been linked to Sub-section (3) only, it really relates to enforcement of an order which comes u/s 488(3) and not to a grant of maintenance u/s 488(1), Code of Criminal Procedure. Consequently, the wife cannot be held to be entitled to separate maintenance on the ground that the husband has married another wife. The case reported in Subhagi Devi Vs. Murli Pradhan, is to the same effect. 12. There is still another point of view which has been enforced in the cases reported in H. Syed Ahmad v. N.P. Taj Begum AIR 1958 Mys. 128, Mst. Bira v. Beharilal A. I. R. 1958 J.&K. 47, Smt. Banarani Bai v. Ghisoolal AIR 955 Ajmer, 8, Kandaswami Gounder Vs. Nachammal Mohamed Haneefa Vs. Mariam Bi & Abdul Ghaffar v. Hafifa Khatoon AIR 1968 Pat. 807, which hold that this second proviso to Sub-section (3) applies to Sub-section (1) and qualifies the whole of Section 488, Code of Criminal Procedure and as such irrespective of "neglect or refusal" the husband is liable to pay a monthly allowance by way of maintenance on the sole ground of there being a second wife or a mistress. 13. In view of this clear divergence of opinion it is proper to examine the position having regard to the scheme, structure and language of the legislation in Section 488, Code of Criminal Procedure. 14. There is nothing in Section 488 which by itself creates or brings into existence the right to maintenance as such. It proceeds on the assumption of the existence of such a right once the relationship of husband and wife is established, and proceeds to vest certain criminal Courts with limited and summary powers to provide relief in appropriate cases. Thus, there can be no question of declaration of a "right to maintenance" as such by the criminal, Courts but only to declare a right to receive a limited monthly allowance and enforce such a right once declared. 15. The entire scheme of this section is self-contained and rests on the two primary concepts that a husband must maintain the wife and that the wife must be virtuous and live with the husband. It is worthy of notice that these two aspects have been dealt with separately and distinctly. 15. The entire scheme of this section is self-contained and rests on the two primary concepts that a husband must maintain the wife and that the wife must be virtuous and live with the husband. It is worthy of notice that these two aspects have been dealt with separately and distinctly. Sub-section (1) gives the shape to the husband's liability and the following three sub-sections lay stress on The wife's obligation by making provision for toning down the rigour of the burden on the husband in the event of certain lapses on the part of the wife. 16. There is no reference to special personal laws if any that may happen to govern the parties and there is nothing in Sub-section (1) which qualifies the powers of the criminal Courts in the light of such special laws. The unambiguous language only emphasises upon the presence of a neglect or refusal to maintain the wife or the child. To read anything to the contrary would be to alter The basic ingredients of Sub-section (1) and to amend the same beyond recognition. 17. This sub-section no doubt does not ay down as to what factors should constitute the requisite neglect or refusal. In its very nature that must depend upon the facts and circumstances of the case and may be established by direct proof or by inference drawn from special circumstances. That cannot mean however that the very conception of neglect or refusal is to stand qualified by anything extraneous having no relevance to neglect or refusal, which, as the words connote, can arise only where There is a duty to maintain and a failure to discharge the same. As already noticed this duty arises on the sole fact that the relationship of husband and wife exists. 18. That apart, in such summary proceedings as are contemplated u/s 488, Code of Criminal Procedure it is difficult to accept a contention that the complex ingredients of the personal law governing conjugal relationship could ever have been meant to be debated when the appropriate forum of the civil Courts remains available. It is not without significance that by virtue of Sub-section (2) of Section 489, Code of Criminal Procedure the decision of a competent civil Court is to override an order made u/s 488, Code of Criminal Procedure. 19. It is not without significance that by virtue of Sub-section (2) of Section 489, Code of Criminal Procedure the decision of a competent civil Court is to override an order made u/s 488, Code of Criminal Procedure. 19. Since there is nothing laid down in Section 488(1), Code of Criminal Procedure regarding matters which should guide The Magistrate in arriving at a finding of neglect or refusal, it may well be that in an appropriate context the taking of a second wife or a mistress may, in the light of other circumstances justify such a finding. But this is not the same as the very fact of taking a second wife becoming ipso facto a proof of neglect or refusal to maintain the first wife. On the other hand if such a second marriage stands by itself without lending any colour to the other circumstances on record relevant to the question of neglect or refusal, this second marriage must have to be rejected as something irrelevant to the proceeding u/s 488(1), Code of Criminal Procedure. Such would be the position not because of the existence of a proviso to that effect in Sub-section (3) of Section 488 but because of the matters that are open to be considered by the Magistrate as being generally relevant to a question of neglect or refusal. 20. All that The first two provisos lay down is that if a husband offers to maintain his wife on condition of her living with him and The wife refuses to live with him because of a second wife, that would not prejudice her right to the monthly allowance. This is clear from the words "make an order notwithstanding such offer" in the first proviso and these words are not apt to convey the idea that such an "offer" and the wife's "refusal" would entitle her to maintenance which is already there by virtue of being the wife and much less to suggest that the absence of such "offer" and "refusal" would deprive her of such right to maintenance. Thus The language of these two provisos is utterly inept in the context of Sub-section (1). 21. This only emphasises on the ordinary concept that the wife must live with the husband and be maintained by him. Thus The language of these two provisos is utterly inept in the context of Sub-section (1). 21. This only emphasises on the ordinary concept that the wife must live with the husband and be maintained by him. Had the legislative intent been otherwise the husband's offer would not have been made the sole occasion for such a plea by the wife. The interdependence between the first two provisos is self-evidence. The second proviso would be meaningless unless read in the context of the first proviso. No presumption of neglect or refusal under Sub-section (1) can be drawn merely on the basis of such offer of the husband or such second wife being there and much less on the basis of such refusal by the first wife. The legislation nowhere provides for such a presumption. For, it is self-evident that there is no inherent absurdity in the husband readily and willingly providing maintenance to the wife notwithstanding such contingencies. 22. What is more, there can be no doubt that as the language of Sub-section (1) stands, the wife's right to maintenance is not dependent on her living with the husband. Once it is found that there is a present neglect or refusal the right to monthly allowance has got to be ordered, no matter where she lives. Nor is it that the mere fact of living with the husband can relieve him of the liability. It is difficult to ignore that the wife may live with the husband, but still there may be a "neglect or refusal" on his part to maintain her and further that provision for residence forms an integral part of the concept of maintenance and nothing apart from it, so that the monthly allowance under Sub-section (1) must be deemed to include provision for residence also. Thus the matter of residence bears only upon the quantum of allowance and not upon the right to it. The former can be altered or modified in the process of enforcement of the order and such alteration or modification would be "an order under this section" within the meaning of the first proviso; the latter is the only subject matter that is covered by Sub-section (1). 23. The former can be altered or modified in the process of enforcement of the order and such alteration or modification would be "an order under this section" within the meaning of the first proviso; the latter is the only subject matter that is covered by Sub-section (1). 23. It must follow that it, would be in conformity with the well recognised principles governing interpretation of statues to hold that instead of artificially importing the provisos to Sub-section (3) into the ambit of Sub-section (1), it would be reasonable and correct to hold nothing more than that the fact of a second marriage may be a factor, quite apart from the refusal of wife to live with the husband, to be taken into account by the Magistrate while proceeding under Sub-section (1) only if he finds it relevant to the question of neglect or refusal in the special circumstances of the case and irrespective of whether there is an "offer" by the husband or not, or whether there is' a "refusal" by the wife (sic) not, within the meaning of the first proviso. 24. The other aspect of Section 488, Code of Criminal Procedure concerning the obligation of the wife must 80180 be noticed. The language of Sub-sections (4) and (5) of Section 488, Code of Criminal Procedure makes it sufficiently clear that their application can arise only after an order under Sub-section (1) has been made. The former sub-section refers to the right "to receive an allowance" and the latter to the cancellation of the order; the right to "receive an allowance" can arise only after an order is made under Sub-section (1) and not merely on the existence of the primary right to be maintained. Besides, a husband in a variety of circumstances may not "neglect or refuse" to maintain the wife notwithstanding that she may be living in adultery. The very same considerations apply where a wife lives separately by mutual consent. 25. If some reported decisions Mehrunnisa Vs. Noor Mohammad, para 16, hold that provisions of Sub-section (4) are relevant to the making of an order under Sub-section (1) I would with great respect differ when they go the length of holding that on proof of wife's adulterous living no order under Sub-section (1) can be made notwithstanding the proof of neglect or, refusal by the husband to maintain. The wife's adultery like other such contingencies can be relevant under, Sub-section (1) only to the extent it tends to prove or disprove the husband's neglect or refusal. 26. Sub-section (3) provides for the levy of the amount when any person is ordered to make a monthly allowance under Sub-section (1). The first proviso there after open with the words "if such person offers to maintain his wife on condition of her living with him"; the words in italics must refer to the person referred to in Sub-section (3) namely to the person against whom an order under Sub-section (1) has been made. There is further no doubt that the second proviso which is in the nature of an explanation expressly covers the subject matter of the first proviso. The only proper construction possible is that the proviso in question bears upon the enforcement of the order made under Sub-section (1) of Section 488, Code of Criminal Procedure and not the making of the order under that sub-section or the proceedings thereunder. The provisos thus cannot be held to qualify Section 488(1), Code of Criminal Procedure. 27. Adulterous living, presence of a mistress or a second wife, separate living or wife's refusal to live with husband need not necessarily be permanent features. There is therefore no reason why the initial qualification under Sub-section (1) of the basic liability of husband on the primary consideration of neglect or refusal to maintain should be denied to the wife instead of leaving the allowance to be fixed once and for all and left to be altered or varied or suspended from time in the process of its enforcement as and when one or more of these various contingencies arise or pass off. This would not only simplify and facilitate the operation of Sub-section (I) and the other provisions of Section 488, but would also be in accord with the plain meaning of the language used and in furtherance of the underlying policy of the legislation. 28. This would not only simplify and facilitate the operation of Sub-section (I) and the other provisions of Section 488, but would also be in accord with the plain meaning of the language used and in furtherance of the underlying policy of the legislation. 28. In the light of the foregoing discussions it must be held that the personal laws of the parties cannot be imported into Section 488, Code of Criminal Procedure; the taking of a second wife by the husband cannot ipso facto justify a finding of a present neglect or refusal by the husband to maintain the wife; and nor can the proof of a second marriage dispense with the requirement of the proof of such neglect or refusal which is a condition precedent to an order u/s 488(1), Code of Criminal Procedure. 29. Applying these principles to the present case it is manifest that the learned Magistrate misdirected himself in law in drawing an inference of "lawful neglect", whatever he may have meant thereby, from the bare fact of a second marriage, in order to justify his order under Sub-section (1) of Section 488, Code of Criminal Procedure. In doing so, he has also misdirected himself by not taking into consideration the statement of the wife in her cross-examination to the effect that in the event she was prepared to live with him or in a separate residence provided for by him notwithstanding the absence of any ill treatment. Further more, while ordering the maintenance on account of his child, no finding has been arrived at by the learned Magistrate as to whether there was any neglect or refusal on the part of the Petitioner, nor has he discussed or given any other reason for allowing a monthly allowance in respect of the child. 30. A preliminary objection had been raised on the ground of limitation. Reliance had been placed upon the case reported in Eliazer Bagh v. Dayanidhi Ganda 1970 (1) C.W.R. 248. But having regard to paragraph 5 of that judgment itself, I consider this to be a fit case where this Court should interfere in exercise of its revisional jurisdiction. 31. 30. A preliminary objection had been raised on the ground of limitation. Reliance had been placed upon the case reported in Eliazer Bagh v. Dayanidhi Ganda 1970 (1) C.W.R. 248. But having regard to paragraph 5 of that judgment itself, I consider this to be a fit case where this Court should interfere in exercise of its revisional jurisdiction. 31. Accordingly, the impugned order is set aside, the case is remitted to the Court below for a fresh assessment of the materials on record in the light of the foregoing observations and after giving an opportunity to the parties to he heard, to dispose of the case according to law. The revision petition is allowed and the case remanded. Final Result : Allowed