Judgment 1. THIS Rule is directed against an order dated 25. 8 75 passed by the learned Judicial Magistrate in a proceeding under section 488 of the Code of Criminal Procedure granting maintenance of Rs. 75/- per month to the opposite party wife. 2. IT appears that the opposite party filed an application for maintenance under section 488 of the Code of criminal Procedure 1898 against the petitioner husband alleging therein that she had been driven out of his house after assualt and that he had also married for the second time and had refused or neglected to maintain her. The learned Magistrate disbelieved both the grounds regarding cruelty and second marriage and rejected the petition. As against such order of the learned Magistrate the wife opposite party moved this Court and obtained a Rule. A. K. De, J. disposed of the said rule by setting aside the order of the learned Magistrate and directing him to decide the application afresh on the evidence already on record in the light of the observations made in his judgment and in accordance with law. It was pointed out in the said judgment of this court that the learned Magistrate went wrong in stating that it was no valid ground to the wife to claim maintenance from the husband even if he had married for the second time. According to the directions as given in the said judgment the learned Magistrate was required to go into evidence to determine the question whether or not the husband had married another time, and if so, to consider whether on that ground the wife was entitled to claim maintenance and to get an order under sub-section (1) of section 488 of the code. After the matter went back, the learned Magistrate found in the evidence already on record that the petitioner-husband had married for the second time, and that as such, he was liable to pay maintenance to the wife opposite party. Taking into consideration the income of the husband, the learned Magistrate directed him to pay a maintenance at the rate of Rs. 75/-per month. It is as against that order the present Rule has been obtained. 3. MR. Taking into consideration the income of the husband, the learned Magistrate directed him to pay a maintenance at the rate of Rs. 75/-per month. It is as against that order the present Rule has been obtained. 3. MR. N. C. Banerjee, learned advocate appearing for the petitioner submitted that the learned Magistrate misread the judgment of this Court and did not comply with the provisions of sub-section (1) of section 488 of the code in directing the petitioner to pay maintenance to the opposite party. It was the argument of Mr. Banerjee that independent of the question whether the husband had married for the second time, it was incumbent upon the court to come to a positive finding on the question whether the husband had sufficient means, has neglected or refused to maintain the wife. 4. MR. Jyotish Chandra Bose, learned Advocate appearing for the opposite party wife submitted that the fact that the husband had married for the second time, as established by the evidence on record and as found by the learned Magistrate, would entitle the wife ipso facto maintenance from the husband. In this connection he drew my attention to a decision of Mysore high Court in the case of Sambhu reddy v. Ghalamma, reported in A. I. R. 1966 mysore, 311. Having heard the learned Advocate for the respective parties and or a consideration of the materials before me, I see much force in the contention of Mr. Banerjee. Sub-section (1) of section 488 makes it clear that if any person having sufficient means neglects or refuses to maintain his wife, then any of the Magistrates, as mentioned in the said sub-section, may upon proof of such neglect or refusal order such person to make a monthly allowance for the maintenance of his wife at such monthly rate not exceeding Rs. 500/- as a whole, as the Magistrate thinks fit therefore, in order to succeed in an application under section 488 of the code of Criminal Procedure, 1898 wife must establish the fact that there is relationship of husband and wife between the parties and that the husband having sufficient means has neglected or refused to maintain her. 500/- as a whole, as the Magistrate thinks fit therefore, in order to succeed in an application under section 488 of the code of Criminal Procedure, 1898 wife must establish the fact that there is relationship of husband and wife between the parties and that the husband having sufficient means has neglected or refused to maintain her. Under first proviso to sub-section (3)of section 488 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 the grounds of refusal, stated by her, and may make an order under this section, notwithstanding such offer, if he is satisfied that there is just ground for so doing. It is true that sub-section (3) of section 488 relates to enforcement of order, but having regard to the language of the first proviso to that sub-section it is clear that the question regarding offer of the husband to maintain the wife at his place and refusal of the wife to go and live with him may be considered at the time of passing an order under sub-section (1)of section 488 of the Code. In considering such question, either at the time of the passing of the order under subsection (1) of section 488 or at the time of the enforcement of the order under subsection (3), if the husband his contracted marriage with another wife or keeps a mistress, it shall be considered by the court to be the just ground of his wife's refusal to live with him, as has been mentioned in the second paragraph to the first proviso of sub-section (3) of section 488 of the Code. Therefore the factum of second marriage may be a just ground for the wife's refusal to live with the husband, but from that it cannot be said that such second marriage of the husband would entitle the wife to claim maintenance from him without proof of refusal and neglect by the husband to maintain her. It is quite possible that even after marrying for the second time the husband neither refused nor neglected to maintain the first wife. Therefore it is only upon the proof of either refusal or neglect to maintain, the wife can claim maintenance from the husband, as has been stated in sub-section (1)of section 488 of the Code. It is quite possible that even after marrying for the second time the husband neither refused nor neglected to maintain the first wife. Therefore it is only upon the proof of either refusal or neglect to maintain, the wife can claim maintenance from the husband, as has been stated in sub-section (1)of section 488 of the Code. In this connection I may refer to two Bench, decisions of this Court reported in A.I.R. 1956 Cal. 134 Belarani v. Bhupal and also A.I.R. 1965 Cal. 190 gouribala v. Nityananda. In the earlier decision it was pointed out that it was not permissible to read into the explanation added to first proviso to sub-section (3) of section 488 anything more than what it said in the context of the first proviso to sub-section (3). Further it was held that whatever might be the personal law of any wife, she must in order to entitle her to an order under sub-section (1) of section 488 Cr. P, C. establish 'inter alia' that there is the present neglect or refusal on the part of the husband to maintain her. The mere fact of taking a second wife cannot ipso facto establish such a neglect or refusal within the meaning of sub-section (1) of section 488 of the code. I respectfully agree with the aforesaid decisions of this Court. 5. IN the present instance, the learned Magistrate has not unfortunately recorded any finding on the question as to whether the petitioner had refused of neglected to maintain the opposite party although the direction of this court was to dispose of the case in accordance with the provisions of law and also in the light of the observations made in the judgment of this Court. Requirement of law was that the learned Magistrate must come to a positive finding in accordance with the provisions of sub-section (1) of section 488 of the Code whether the petitioner having sufficient means had neglected or refused to maintain the opposite party. In the absence of any such finding the matter must go back to the learned Magistrate for disposal in accordance with the provisions of law and in the light of the directions given in the earlier judgment of this Court and also in the light of the observations made by me. 6. In the absence of any such finding the matter must go back to the learned Magistrate for disposal in accordance with the provisions of law and in the light of the directions given in the earlier judgment of this Court and also in the light of the observations made by me. 6. IN the result, this Rule is made absolute, the impugned order is set aside, and the matter is sent back to the learned Magistrate for disposal in accordance with the provisions of law and in the light of the directions, as made above. The learned Magistrate will try to dispose of the case within three months from the date of arrival of the record in his court. Let the records go down immediate Interim order as passed by this court stands vacated. Rule made absolute.