JUDGMENT This Rule is directed against an order of the learned Judicial Magistrate passed in M. Case No. 224 of 1974 (T.R. No. 178 of 1977) 2. The wife-petitioner made an application under S. 125 of Cr.P.C. praying for monthly maintenance of Rs. 150/- per month for herself and Rs. 75/- per month for each of her two minor daughters from her husband. The case of the wife is that she was seat to her father's house by the opposite party before the birth of the second daughter. The opposite party did not take her back, nor did he care to make any arrangement for her maintenance and the two minor children. Therefore, in such helpless condition she had to move an application for maintenance on the ground that she was being wilfully neglected by the opposite party and also on the ground that he had married for a second time. The learned Magistrate found that so far as me minor children are concerned they are entitled to maintenance as they are being brought up find looked after by the petitioner and he accordingly granted a sum of Rs. 75/- to each of the minor daughters from the date of order, i.e. from 15th November, 1979 So far as the case of the wife petitioner is concerned. the learned Magistrate disbelieved the case of torture and neglect by husband as those allegations were not made in the petition filed by her and regarding the plea taken by her that her husband had married for a second time which is a just ground for separate residence and for claiming maintenance, the learned Magistrate found that neither the petitioner nor her father nor even the witnesses could give the name of the second wife or the name of her father. Accordingly he found the story of second marriage to be a myth and therefore, refused to grant, any maintenance to the petitioner-wife. On behalf of the petitioner Mr. J.C. Bose has drawn my attention to the evidence of the petitioner who has stated both in her application for maintenance as well as in evidence in Court that her husband had married for the second time. This fact has not been denied in the written statement of the opposite party. Apart from this fact, the opposite party did not examine himself so that he could be cross-examined on this point by the wife. This fact has not been denied in the written statement of the opposite party. Apart from this fact, the opposite party did not examine himself so that he could be cross-examined on this point by the wife. Furthermore, the statement made by the wife that the opposite party has married again for the second time is corroborated by P.W. 6 who stated that when he asked the opposite party to take back the petitioner, the opposite party replied that he could not do so because he had married for the second time. This is good enough under for a proceeding under S. 125 of Cr. P.C. In such a proceeding it is not necessary to strictly prove marriage as in a case under S. 494 of the Indian Penal Code observing all the formalities of a marriage. Above all, since this fact has not been rebutted by the opposite party who is the best person to do so, it must be taken to have been proved by the evidence on record which I have discussed above. Apart from this, the witnesses on behalf of the petitioner, viz P.W. 3 and P.W. 4 said that the opposite party had married for a second time. P.W. 4 has stated in his evidence that the opposite party has taken a girl of neighbouring village as the second wife, and he is living wish her. These circumstances are enough to lead to the conclusion that the opposite party has married for the second time. Mr. Mukti Prasanna Mukherjee appearing for the opposite party has stated that it is necessary prove that a legal marriage has taken place between the opposite party and the woman. As I have already stated the marriage need not be so strictly proved as in a prosecution under S. 494 of I.P.C. As such, my finding above in favour of the wife petitioner stands. Mr. Mukherjee has referred to several decisions of this High Court wherein it his been held that merely taking a second wife will not entitle the first wife to get maintenance under S. 488 of Cr.P.C. These cases are reported in 60 CWN 212: AIR 1966 Calcutta 134 (?), AIR 1966 Calcutta 83. The case reported in AIR 1960 SC 190 will support the contention of Mr. The case reported in AIR 1960 SC 190 will support the contention of Mr. Bose appearing for the petitioner' that it is not necessary to prove negligence to maintain if it is proved that the husband has married for the second time during the life time of the first wife Mr. Mukherjee has submitted that so far as the decisions of the Division Bench reported in AIR 1960 Calcutta 83 & 60 CWN 212, these cases have been followed by other High Courts also. A portion of the judgment in the Division Bench reported in 60 CWN 212 is quoted beneath. “Whatever might be the personal law of any wife, she must, in order to entitle her to an order under sub-s. (1) of S. 488 Cr. P.C. establish, inter alia, that there is a present neglect or refusal on the part of her husband to maintain her. The mere fact of a second marriage cannot ipso facto establish "such neglect or refusal” within the meaning of sub-s. (1) of S. 488 Cr. P.C. for, a man may marry a second time and still not refuse to maintain his first wife. In our view, the mere fact that a husband has contracted marriage with another wife or keeps a mistress cannot, without more, be said to amount to neglect or refusal on the part of the husband to maintain his wife within the meaning of sub-s. (1) of S. 488 Cr. Cr. P.C.” 3. This judgment was delivered on the 5th of September, 1955 and the wife prayed for maintenance in July, 1953. Such social changes have occurred since then and the view of the Supreme Court in this matter will also make it clear from the judgment reported in AIR 1974 SC 1488 (Deochand v. State of Maharashtra & anr.). It was held in that case that the wife the second respondent was justified in refusing to live with the appellant on account of the second marriage contracted by him and thereby the husband appellant was under legal obligation to maintain her as he had neglected to maintain her. The High Court of Bombay, was justified in awarding a sum of Rs 50/- per month, as maintenance to the wife. The High Court of Bombay, was justified in awarding a sum of Rs 50/- per month, as maintenance to the wife. The cases of the Supreme Court as well as the High Courts of other States on this point have been discussed in the latest decision of the Full Bench of Jammu and Kashmir High Court. (Aziz Mohd. v. Must. Sayda Begam 1981 Cr.L.J. 267 J.K. (F.B.) The Supreme Court cases which were relied upon in that case are reported in AIR 1974 SC 1488 . AIR 1976 SC 1697 , AIR 1979 SC 362 . A portion of the majority judgment by the Acting Chief Justice may be quoted below :– “I am therefore, inclined to hold that the first proviso to sub-s. (3) is a proviso as much to sub-s. (1) as to sub-s. (3). According to this proviso, if the husband has contracted marriage with another wife or keeps a mistress it shall be considered to be a just ground for the wife's refusal to live with him Reading the proviso with sub-s (1) the effect is that where a wife proves that she lives separately from her husband on the ground that her husband bas taken a second wife or that he bas kept a mistress, she will be entitled to the grant of separate maintenance, unless, of course, he has provided such maintenance to her”. 4. Mr Mukherjee has, however, laid strees on the words “contracted marriage” with another woman. As the parties in the proceeding are muslims, it is necessary according to Mr. Mukherjee to establish, that second marriage is a valid marriage. It is nobody's case that the marriage is not valid. I find that the evidence on record disclose that the opposite party has married for a second time but that marriage is a legal marriage. I do not think the stress laid upon the legal marriage by Mr. Mukherjee is at all appropriate. On a consideration of these decisions cited by the learned Advocates of both the parties and their submissions, I hold that the second marriage has been proved which entitles the wife to separate residence. During her separate residence the opposite party has never maintained her. Accordingly, though it is not necessary to prove that there has been a neglect or refusal to maintain as required under S. 125 of Cr. P.C. Mr. During her separate residence the opposite party has never maintained her. Accordingly, though it is not necessary to prove that there has been a neglect or refusal to maintain as required under S. 125 of Cr. P.C. Mr. Mukherjee has further submitted that this Court cannot go into the evidence and come to a finding of the fact as a Revisional Court, It is not proper in matrimonial case to go into the question of facts but it must be remembered that this is a c(jse under S, 125 of Cr.P.C. which provides to(?) remedy to wife by way of maintenance, If this case is again sent back to the learned Magistrate on remand, it will take considerable time as before. The case was taken up by the learned Magistrate for disposal in November, 1979 although the case started sometimes in 1976. The wife has received no maintenance from the husband during the long period and hence disposal of the case by this Court. The wife will get a maintenance of Rs. 75/- per month as it bas already been found by the learned Magistrate that the husband has sufficient means to maintain not only the children but also the wife. This maintenance will be paid by the husband opposite party from this date. This Rule is accordingly made absolute. Rule made absolute.