Order: The order dated 26th December, 1977 passed by the Sessions Judge, Bijapur, in Criminal Revision Petition No. 51 of 1977, setting aside the order, dated 20th June, 1977 passed by the Judicial Magistrate, First Class Hungund, in Criminal Miscellaneous Application No. 19 of 1975, is challenged. 2. The respondent filed Criminal Miscellaneous Application No. 19 of 1975 under section 125 of the Criminal Procedure Code, 1973 (to be herein after referred to as the new Code) praying for maintenance. She put forth two grounds. The first one was that she was treated cruelly and driven out of the house by the petitioner, and the second one was that the petitioner had taken a second wife. The Magistrate dismissed her application holding that the respondent had failed to establish either neglect or refusal to maintain her on the part of the petitioner and that merely because the petitioner had taken a second wife it did not entitle the respondent to claim maintenance. The respondent filed the afore-mentioned criminal revision petition, and the learned Sessions Judge has, without recording a finding on the question of neglect or refusal to maintain, held that the mere fact that the petitioner had taken a second wife, entitled the respondent to maintenance. He has decided the quantum of maintenance at Rs. 40 per month. 3. Sri B.V. Deshpande, learned Advocate appearing on behalf of the petitioner, urged that the trial Court having recorded a finding that the respondent had failed to establish either refusal to maintain her by the petitioner or the petitioner neglecting to maintain her, the same has not been gone into by the Sessions Judge, and without recording a finding of fact on that question, the Sessions Judge could not have, merely on the ground that the petitioner had taken a second wife, proceeded to grant maintenance, as the same is not according to the the provisions of section 125 of the new Code. 4. It is not the case of the petitioner that after the respondent commenced residing with her parents, he continued to maintain her. On the other hand, it is his case that the parents of the respondent have no male issues and they called him to live with them and look after their agricultural establishment, but he refused to do so and, therefore, they have instigated the respondent to file this petition. On the other hand, it is his case that the parents of the respondent have no male issues and they called him to live with them and look after their agricultural establishment, but he refused to do so and, therefore, they have instigated the respondent to file this petition. He has expressed that he was still willing to take the respondent to his house and maintain her. 5. In section 488 of the Criminal Procedure Code,1898 (to be hereinafter referred to as the old Code), the provision to the effect that ‘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 came to be inserted as a proviso by Act IX of 1949. Till then the same was not there. The said provision is now found in section 125 of the new Code, not as a proviso, but as an explanation to section 125(3). Section 125(3) of the new Code deals with failure on the part of the husband to pay maintenance to his wife as per the order passed under section 125 and the consequences thereof. 6. The proviso to section 488 of the old Code wherein a similar provision, as already noted, was incorporated, has been considered by various High Courts. It has been held that though it is a proviso occurring in sub-section 3, it is an exception to the main section 488 itself. 7. Now the question of law that has been raised is whether the mere fact that the petitioner had contracted second marriage, entitled the respondent to claim maintenance for her without proving neglect or refusal on the part of the petitioner. 8. Sri B.V. Deshpande, the learned advocate appearing on behalf of the petitioner-husband, placed reliance on the decisions of various High Courts. Some of those decisions are reported in Rupchand Mahato Charubala1. Bela Rani Chatterjee v. Bhupal Chandra2. Mst. Dhan gout v. Niranjan Singh1, State v. Anwarbi2and Ramji Malviya v. Smt. Munni Devi Malviya3. 9. The decision reported in Ramji Malviya’s Case,3has been relied upon by the trial Court. The decision reported in Rupchand’s case4is rendered following the decision of the Division Bench reported in Bela Rani’s case5. Bela Rani Chatterjee v. Bhupal Chandra2. Mst. Dhan gout v. Niranjan Singh1, State v. Anwarbi2and Ramji Malviya v. Smt. Munni Devi Malviya3. 9. The decision reported in Ramji Malviya’s Case,3has been relied upon by the trial Court. The decision reported in Rupchand’s case4is rendered following the decision of the Division Bench reported in Bela Rani’s case5. In all these decisions, it has been held that the fact that a husband has taken a second wife would entitle the wife to live separately from him, but merely because of that fact she would not be entitled to maintenance unless she establishes refusal or neglect on the part of the husband to maintain her. 10. This Court has consistently taken the view that if a husband contracts a second-marriage, the wife is entitled to live separately from him and the husband is liable to maintain her, neglect or no neglect, refusal or no refusal. Vide Syed Ahmed v. N.P. Taj Begum6 and B.B.S. Basha Abdul Ali v. Smt. Imam Bi.7 Detailed reasoning in support of this conclusion is not found in these two decisions. The two decisions proceeded mainly on the plain meaning of section 488 of the old Code. But a Division Bench of this Court has in Shambu Reddy v. Ghalamma8has taken the very same view after considering the law laid down in the decisions relied upon by Sri. B.V. Deshpande which form the main stay of his argument. 11. Sri Kadidal Manjappa, learned advocate appearing on behalf of the respondent, placed reliance on the decisions reported in Mohd. Haneefa v. Mariam Bi9, Kandaswamy v. Nachammal10, Gouribala Jana v. Nityananda Jana11, Mst. Biro v. Behari Lal,12. 12. The decision reported in Gouribala’s case11 has been cited in the decision reported in Rupchand v. Charubala.4It has been observed that in the decision reported in Gouribala’s case11the decision of the Division Bench of the Calcutta High Court reported in Bela Rani v. Bhupal Chandra5, had not been taken into consideration. 13. In the decision reported in Mst. Dhan gaur v. Niranjan Singh,1almost all the decisions on the question including the decisions reported in Syed Ahmad v. Taj Begum6 Mst. Biro v. Behari Lal12and the decisions of the Madras High Court, have been taken into consideration. It has been held as canvassed by Sri. B.V. Deshpande. 14. 13. In the decision reported in Mst. Dhan gaur v. Niranjan Singh,1almost all the decisions on the question including the decisions reported in Syed Ahmad v. Taj Begum6 Mst. Biro v. Behari Lal12and the decisions of the Madras High Court, have been taken into consideration. It has been held as canvassed by Sri. B.V. Deshpande. 14. It is seen from what is narrated in the preceding paragraphs that the High Courts in this country have dissented from each other in regard to this question of law. 15. So far as the facts and circumstances of this case are concerned, it has been already noted that it is not the case of the petitioner that though the respondent has been residing in her parents house, he has been giving her anything towards maintenance. That means that he has not contributed anything towards her maintenance. His stand that if she returns to him he is prepared to maintain her, leads to an inference that unless she returns to him he is not prepared to maintain her in her parents house. In other words, he refuses to maintain her in her parents house. 16. It is undisputed that the petitioner has contracted a second marriage. Therefore, the respondent has a right to live separately from the petitioner. 17. I am of opinion that under the aforementioned facts and circumstances, the decision in Deochand v. State of Maharashtra and another13, aptly applies. In that decision section 488(3) of the old Code came up for consideration. It has been held that section 488(3) of the old Code provides to the extent material that if a husband has contracted a second marriage with another woman, it shall be considered to be just ground for his wife’s refusal to live with him. It has been further held as follows: “As the second respondent was justified in refusing to live with the appellant, the latter was under a legal obligation to maintain her. As he has neglected to maintain her, the High Court was justified in passing the order under appeal.” 18. In the case on hand also, the respondent was justified in refusing to live with the petitioner, and the petitioner is under a legal obligation to maintain her; but as he has refused to maintain her in her separate residence it has to be held that he is liable to maintain her. 19. In the case on hand also, the respondent was justified in refusing to live with the petitioner, and the petitioner is under a legal obligation to maintain her; but as he has refused to maintain her in her separate residence it has to be held that he is liable to maintain her. 19. A meagre sum of Rs. 40 per month has been found to be adequate by the learned Sessions Judge. I see no reason to interfere in the quantum also. 20. In view of the foregoing reasons, this petition fails and is dismissed.