JUDGMENT : B.C. Das, J. - The Petitioner and her husband lived together for about six months after their marriage. It was alleged that the opposite party namely the husband alliterated her and drove her out from his house and refused to maintain her. She had to go away to her parents and has been since then living with them. He had not maintained her thereafter and accordingly she claimed a monthly allowance towards maintenance from her husband u/s 488(1), Code of Criminal Procedure. 2. The husband did not question the marriage but denied the alleged ill-treatment and the story- of having driven out the wife as also the allegation of refusal or neglect to maintain her; it was during his absence that she had left his house of her own accord. He had further pleaded that he had always been trying to bring her back and to maintain her and as such her petition u/s 488, Code of Criminal Procedure was liable to be rejected. 3. The learned Magistrate directed himself to a consideration of the question whether the husband had neglected or refused to maintain the Petitioner. He ultimately found that the husband not maintained her since her separation from the husband and therefrom he concluded that it was proved that the husband neglected to maintain the wife for the apparent reason that she bad left him. Accordingly, he passed the following order dated 10-6-1969 u/s 488(1), Code of Criminal Procedure to the following effect: For the reasons aforesaid I direct that the opposite party Paresh Chandra Sarkar to pay a monthly allowance of Rs. 20/- to his wife Nelirani Sarkar from 19-7-1969. the date of application till the date of this order (both dates inclusive). I further direct that in the interest of both, Nelirani Sarkar, the Petitioner should be maintained by the opposite party if she lives with him in future as undertook by the opposite party. 4. The present petition on behalf of the wife questions the last portion of the order directing that the wife should be maintained only on condition that she lives with her husband from after the date of order. It is contended that the learned Magistrate had no jurisdiction to thus compel the Petitioner to live with her husband and make it a condition precedent for being maintained by him. It is contended that the learned Magistrate had no jurisdiction to thus compel the Petitioner to live with her husband and make it a condition precedent for being maintained by him. Necessarily also the order limiting the payment of the monthly allowance to the period from the date of application till the date of the order, it is urged, was also illegal and without jurisdiction. 5. In order to appreciate the exact contention raised in this Court on behalf of the Petitioner, it is necessary to take note of the line of approach made by the trying Magistrate. He has not considered it necessary to arrive at any finding on the question if alleged ill-treatment as such. His decision is based on the following four factors namely- (i) The wife was living separate since March, 1966 and it was the duty of the husband to maintain her if she was not at fault otherwise. (ii) She having left her husband?s house and having lived with her parents in the house nearby did not excuse the husband from paying her main tenancy. (iii) The husband had not in fact maintained her since her separate residence with her parents. (iv) The husband had been willing to maintain her provided she lived with him. 6. The learned Counsel appearing on behalf of the Petitioner has made it very clear that he confines his submission in this Court only to the limited extent that the payment of the monthly allowance should not have been limited to the date of the order passed by the learned Magistrate and he should not have taken note of the plea of the husband that he was willing to maintain the wife if she lives with him. It is emphasised that the provisos to Sub-section (3) of Section 488, Code of Criminal Procedure relate to the enforcement of an order already made under Sub-section (I) of the said section and do not in any manner qualify that sub-section and but for such an approach, though not expressly stated in the judgment, there would have been no occasion for passing the order in question to the extent it is sought to be impugned. 7. It is contended on behalf of the husband in this Court that these provisos to Section 488(3), Code of Criminal Procedure qualify also Section 488(1), Code of Criminal Procedure. 8. 7. It is contended on behalf of the husband in this Court that these provisos to Section 488(3), Code of Criminal Procedure qualify also Section 488(1), Code of Criminal Procedure. 8. Assuming for the limited purposes of this case that the provisos to Sub-section (3) of Section 488, Code of Criminal Procedure do qualify Section 488(1) also, it is to be noticed that in view of the finding of the learned Magistrate the requisite factors do not appear to have been satisfied. The judgment in support of the impugned order does not discuss the necessary ingredients of these provisos and does not give a finding whether on the facts of the case the provisos at all come into play. 9. The relevant aspect of Section 488, Code of Criminal Procedure should now be noticed. Sub-section (I) of the said section without anything more entitles a wife to monthly allowance provided the husband has sufficient means but neglects or refuses to maintain the wife. It is not expressly conditioned by the circumstance whether the wife lives with the husband or not. Sub-section (2) provides that the allowance so payable shall be ordinarily directed to be paid from the date of the order and it may also be ordered to be paid from the date of the application under Sub-section (I). In terms neither Sub-section (1) nor Sub-section (2) empowers the Magistrate to confine the payment of the allowance upto the date of the order under Sub-section (1). 10. On the facts of this case the impugned order patently transgresses the provisions of Sub-section (2). To this extent atleast the contention on behalf of the Petitioner here is of substance. 11. Sub-section (3) enables the wife to secure an appropriate order from the Magistrate for the enforcement of an order made Sub-sections (1) and (2) where the husband fails to pay the monthly allowance without sufficient cause. The third proviso is not relevant in the present context, for, it expressly deals with the period of limitation in respect of the issue of a warrant for recovery of an amount which the husband may not have paid and hence relates manifestly to a stage governing the enforcement of an order under Sub-sections (1) and (2). The third proviso is not relevant in the present context, for, it expressly deals with the period of limitation in respect of the issue of a warrant for recovery of an amount which the husband may not have paid and hence relates manifestly to a stage governing the enforcement of an order under Sub-sections (1) and (2). The second proviso, which in reality is in the nature of an explanation to the first proviso cannot come into play since no question of the husband having taken a second wife or a mistress justifying the wife?s refusal to live with him arises here. Thus, only the first proviso can have a bearing if at all to the facts of the present case. It runs as follows. Provided that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offer, if he is satisfied that there is no just ground for so doing. 12. The opening words "if such person" in the proviso to Section 488(3) cannot but refer to the person mentioned in Sub-section (3) to which the proviso stands linked by a colon, namely, the person against whom an order has already been made under Sub-sections (1) and (2). Ignoring however this aspect of the proviso on the basis of the assumption already made to the effect that the proviso also governs Section 488(1), it is to be noticed that there are three conditions precedent before this proviso can come into play, namely: (i) the husband must offer to maintain his wife on condition of her living with him; (ii) the wife must refuse to live with the husband giving grounds thereof; and (iii) the Magistrate must be satisfied that there is just ground for such refusal. 13. The impugned order as already quoted above refers to an undertaking by the husband that he would maintain the wife if she lives with him in future. But nowhere in the body of the judgment there is any reference to an undertaking of any such kind, nor is there any finding to that effect. 13. The impugned order as already quoted above refers to an undertaking by the husband that he would maintain the wife if she lives with him in future. But nowhere in the body of the judgment there is any reference to an undertaking of any such kind, nor is there any finding to that effect. All that is to be found is a reference to the deposition of the husband which the learned Magistrate takes note of in the following manner: The p.w. 1 (husband) stated to have approached her to resume conjugal right with him and also convened a Panchayat for her restoration. But the p.w. 1 (wife) refused to join him at the instigation of her parents. Thereafter the learned Magistrate proceeds to take note of the fact that in this the husband stood corroborated by his witnesses regarding the story of such an approach having been made by the husband and that the evidence of the witnesses indicated that the adamant attitude of the wife?s father in refusing to discuss the affairs of his daughter. This aspect is left off there and the learned Magistrate proceeded to observe that be that as it may, it is in evidence that the wife is living separate since March, 1966 and that it was the duty of the husband to maintain her if she was not at fault otherwise. 14. It is difficult to read into the above observation of the learned Magistrate any indication of the fact that the husband bad at any stage of the proceeding given a present undertaking or had made a declaration that he personally undertook or was willing to maintain the wife if she returned and lived with him. It must follow that there was no such specific plea on the part of the husband as contemplated under the proviso. This is further clear from the concluding observation of the learned Magistrate that it was not prudent and desirable on the part of a young and youthful lady like p.w. 1 (wife) to refuse to stay with her husband for the misunderstanding which was created as far back as three years ago and that such misunderstanding is not unusual in Hindu families. 15. 15. Clearly enough, the learned Magistrate was not satisfied that the wife namely the Petitioner here had any just ground for refusing to live with the husband within the meaning of the proviso. Besides, had the Magistrate been so satisfied there would have been no occasion for him to direct, as he has done in the operative portion of his order that in the interest of both, she should live with him and he should maintain her. It is not without significance, as already indicated, that the learned Magistrate has arrived at no finding on the question of alleged ill-treatment of the wife. Even as regards the plea of present refusal if any by the wife to live with the husband, there is also no clear finding. 16. The only conclusion that all this leads to is that none of the three conditions precedent referred to earlier for application of the proviso to the facts of the present case have been found by the learned Magistrate to have been satisfied. It is not unlikely that the learned Magistrate had this proviso in mind while considering the facts of the case and passing the order in question. Be that as it may, it is evident that the proviso to Section 488(3), Code of Criminal Procedure cannot govern the facts of the instant case even on the assumption that it qualifies Section 488(1) also. 17. What has manifestly weighed with the learned Magistrate is an anxiety to do what he thought was the best possible in the interest of both. The difficulty however in making such an approach and in passing the impugned order lies in the fact that the scope therefor stands expressly limited, as already pointed out by the provision of Sub-sections (1) and (2) of Section 488, Code of Criminal Procedure. The position envisaged under the first proviso to Section 488(3), Code of Criminal Procedure does not at all arise on the findings arrived at by the learned Magistrate and it is unnecessary to express any opinion as to whether it qualifies Sub-section (1) also. 18. In the result, therefore, the order of the learned Magistrate dated 10-6-1969 to the extent it has been challenged on behalf of the Petitioner cannot be allowed to stand. 18. In the result, therefore, the order of the learned Magistrate dated 10-6-1969 to the extent it has been challenged on behalf of the Petitioner cannot be allowed to stand. It would undoubtedly remain open to the husband to move the Magistrate subsequently at the time the enforcement of the order to have it modified by raising the plea under the first proviso to Section 488(3) and it would be equally open to the Petitioner to express her refusal to live with the husband in answer to such a? plea if any raised by him. 19. The impugned order shall stand modified accordingly and it is directed that the opposite party Paresh Ch. Sarkar in the proceeding u/s 488, Code of Criminal Procedure shall pay a monthly allowance to his wife Nelirani Sarkar for her maintenance from 19-7-1968, the date of her application in Criminal Misc. Case No. 7 of 1968 on the file of the Subdivisional Magistrate, Bonai at the monthly rate of Rs. 20/. only. The revision petition is allowed and the impugned order dated 10-6-1969 stands modified. Final Result : Allowed