L. RATH, J. ( 1 ) THIS petition arises out of a proceeding under section 125 of the Code of Criminal Procedure (hereinafter referred to as Cr. P. C.) at the instance of the opposite parties claiming maintenance from the petitioner on the ground of his second marriage. The application having been allowed by the learned S. D. J. M. gtailting maintenance of Rs. 300/- per month to the opp. party No. 1 and Rs. 200/- per month to opp. party No. 2, the daughter through her, and the order having been also confirmed in revision, the present petition under section 482, Cr. P. C. has been filed. The facts emerging his in a short corn pass. It is the admitted case of the parties that the petitioner married the opp. party No. 1 in 1964. On differences arising between them, the petitioner filed a suit for divorce, O. S. No. 66 of 1968 under section 13 of the Hindu Marriage Act. That suit was compromised as per compromise dated 21. 8. 1969, Ext. 1 in the present case and the parties agreed to live together and in fact did so. Later on the petitioner married for the second time and both the opposite party No. 1 and the second wife Manjulata lived with him. Two issues, a son P. W. 2 and a daughter (opposite party No. 2) were born to the opposite party No. 1 through the petitioner. It is the admitted case that no issue had been born to the opposite party No. 1 by the date of the compromise. The petitioner also begot four children through Manjulata. The petitioner is employed as a Sweeper at Calcutta. While it is the case of the opposite party No. 1 that she was driven out by the petitioner from the house, it is the case of the petitioner that while he was away at Calcutta, the opposite party No. 1 left the house on 10. 4. 1989 on her own accord. ( 2 ) IN the petition under section 125, Cr. P. C. the opposite party No. 1 claimed maintenance on the grounds of second marriage of the petitioner and her having been driven out on 10. 4. 1989 and that since that date she has been living at her fathers place along with the opposite party No. 2 and is facing difficulties in maintaining herself and the daughter. P. C. the opposite party No. 1 claimed maintenance on the grounds of second marriage of the petitioner and her having been driven out on 10. 4. 1989 and that since that date she has been living at her fathers place along with the opposite party No. 2 and is facing difficulties in maintaining herself and the daughter. The claim was resisted by the petitioner, while admitting the marriage as also the second marriage, that the opposite party No. 1 had been living happily with him without any dispute but that during his absence at Calcutta, she left on her own accord on 10. 4. 1989. In the written statement the petitioner had taken the stand of not having married for the second time but during the evidence, admitted the fact. The claims of the opposite parties were allowed since both the Courts came to the conclusion that in view of the admitted second marriage of the petitioner, a claim for maintenance ipso facto was made out. ( 3 ) MR. Dhal, the learned counsel appearing for the petitioner has urged two submissions, the first being that the fact of second marriage does not ipso facto entitle a wife to maintenance unless it is further established by her that the husband has refused to maintain her, and secondly that even if 4:00 a second marriage automatically entitles the first 5. wife to maintenance, yet if the wife has in fact condoned such lapse of the husband and has lived with him thereafter along with the second wife and had given birth to children, such cause of action cannot be resorted to, after lapse of long years, to maintain a petition under Section 125, Cr. P. C. ( 4 ) SO far as the first submission is concerned, it is urged by Mr. Dhal that the substantive part of section 125, Cr. P. C. declares a right in favor of the wife to claim maintenance only if the husband, having the duty to maintain, refused to maintain her. Hence, according to him, the mere fact of second marriage would not establish a right to maintenance unless it is further established that there has been refusal to maintain. In support of such proposition Mr. Hence, according to him, the mere fact of second marriage would not establish a right to maintenance unless it is further established that there has been refusal to maintain. In support of such proposition Mr. Dhal relies upon two earlier decisions of this Court, namely, Donardhan Dondasena v. Srimati Tulusa Devi and another and Makra alias Makarananda Majhi v. Mati Devi An earlier decision of the Calcutta High Court in Smt. Bela Rani Chatterjee v. Bhupal Chandra Chatterjee, which was relied upon in the first decision of this Court3 was also cited. Though some support is available to be drawn by Mr. Dhal from the decisions for the proposition advanced by him, yet the position is no longer resintegra and is against him in view of the decisions of the Supreme Court Deochand v. State of Maharashtra and another and Begum Subanu alias Saira Banu and another v. A. M. Abdul Gafoo,. In section 125 (3) the explanation to the second proviso declares refusal of a wife to live with the husband because of his second marriage as a justified conduct. Though the provision comes in the context of section 125 (3), yet it is by now settled that the right of the wife to refuse to live with the husband in case of his second marriage is not confined to the offer of the husband to maintain her only after an order under section 125 (1), Cr. P. C. has been passed and he has been called upon to pay the maintenance. Indeed there is no reason as to why a distinction should be maintained between a wife who desired to file a petition to claim maintenance on the ground of the husband's second marriage and the wife whose husband has contracted a second marriage after an order of maintenance has been passed and makes an offer to maintain the wife but she refused to live with him in view of a second marriage. The words 'trefuses to maintain' the wife the context of section 125 (1) can only mean refuel to maintain as a woman only. A wife is entitled to be maintained with dignity of a wife and as Justice. The words 'trefuses to maintain' the wife the context of section 125 (1) can only mean refuel to maintain as a woman only. A wife is entitled to be maintained with dignity of a wife and as Justice. Faz Ali said in Sirajmohmadkhan Janmohammadkhan v. Hajizunnisa Yasinkhan and another, the salutary provisions of the Code are not merely meant to provide a wife with food, clothing and lodging as if she is only a chattel and has to depend on the sweet will and mercy of the husband. The immortal bird of India, Kalidasa brought out through the lips of lading Aja in Raghubansam the concept of a wife as GRUHINI SACHIBA SASKHI MITHAH, PRIYA SHISYA i. e. that the wife is a partner to the husband and is his advisor, his friend and his dearest disciple. If the wife is not mentioned with that dignity and status and that position is conceded to someone else, it must become justifiable for the wife to refuse to concede to a subordinate place in his life. It would hence be logical to hold that if the husband during the life time or a wife contracts a second marriage, she would ipso facto be entitled to maintain petition for maintenance white refusing to live with him. Such position has also been reiterated in Begum Subanus case (supra) and I find support for the same from Tejabai v. Shankarmo Baswanappa. This submission of Mr. Dhal hence must fail. ( 5 ) THE other submission of Mr. Dhal needs consideration. The compromise between the parties was effected on 2 1. 8. 1969 and the opp. party No. 1 lived with the petitioner since then. P. W. 2 is the son of the petitioner and the opp. party No. 1. He gave his age as 18 while deposing on 2. 3. 1990 and stated that five years after his birth the petitioner married for the second time. That would mean second marriage to have taken place in 1977. The date of separation between the petitioner and the opposite party No. 1 giving rise to the present petition is 10. 4. 1989. It would hence mean that the opp. party No. 1 has lived with the petitioner acknowledging the presence of the second wife for about 12 years. That would mean second marriage to have taken place in 1977. The date of separation between the petitioner and the opposite party No. 1 giving rise to the present petition is 10. 4. 1989. It would hence mean that the opp. party No. 1 has lived with the petitioner acknowledging the presence of the second wife for about 12 years. The opposite party No. 1 no doubt filed the case alleging the second marriage of the petitioner as if it had taken place recently before her having been driven out, but from the records fact appears to be otherwise. P. W. 2 stated in his evidence that the opposite party No. 1 left with his sister one year back when his father was not at home and was serving at Calcutta. He had gone to call his mother but she had refused to return. His father never illtreated or neglected his mother or sister at any time. While this was the statement of P. W. 2, the opp. party No. 1 examined as P. W. 1 maintained that she has filed the petition as the petitioner was refusing to maintain her and the daughter and since he had married for the second time, he was not taking her with him. Since the second marriage in fact took place long back, obviously that was not a recent cause of action for the opposite party No. 1 to have come before the Court. She did not state in her petition of any harassment or illtreatment but has exclusively based her claim upon only the second marriage of the petitioner. She however complained in the petition of having been driven out by the petitioner whereas it is the case of the petitioner that she was never thrown out and that he is willing to maintain her as she was being maintained earlier. Both the Courts, below have decided the case allowing her claim for maintenance only upon the fact of the second marriage of the petitioner without going into the further question as to whether she was in fact driven out of the house. ( 6 ) A cause of action to maintain a petition under Section 125, Cr. P. C. must be an event in present. The substance of the section is refusal to maintain. ( 6 ) A cause of action to maintain a petition under Section 125, Cr. P. C. must be an event in present. The substance of the section is refusal to maintain. Hence even conceding that the second marriage tantamounts to non-maintenance, yet if the facts show that the wife by her conduct had condoned the conduct of the husband and was willingly living with him as a wife, without anything else the same cause of action to be pursued years after, after it has become stale, would not enure to her benefit to push it as a whipping cord against the husband at any time she whims it. She undoubtedly had a right to file a petition as soon as the second marriage was contracted or at any time thereafter if she came with the complaint before the Court of her status, position or dignity having been imperiled by any recent event. There is no such allegation in the present case and instead she has based her case upon the fact of her having been driven out by the petitioner, a fact which has not been investigated by the Courts below. As regards the view that the refusal to maintain must be a fact found to have presently occurred, support can be drawn from Chand Begum v. Hyderbeig, where Justice Chinnappa Reddy observed: It is important to note, having regard to the expression neglects or refuses occurring in section 488 (1) (corresponding to present section 125 (1) that the neglect or refusal must be in present, that the time of the proceeding before the Magistrate that is why even a husband who is guilty of neglect or refusal to maintain the wife in the past is permitted to make an offer to maintain a wife as if she lives with him. That is why a wife who has willfully stayed away from her husband in the past may also claim to be maintained by her husband. The husband must then decide whether to take the wife back and maintain her or face an order under section 488 (1 ). That is why a wife who has willfully stayed away from her husband in the past may also claim to be maintained by her husband. The husband must then decide whether to take the wife back and maintain her or face an order under section 488 (1 ). ( 7 ) IN that view of the matter, the petition is allowed and the case is remanded to the Court of the S. D. J. M. , Bhadrak to find out, in view of the position of law indicated, as to whether in fact the opposite party No. 1 was driven out of the house by the petitioner as alleged in the petition under section 125, Cr. P. c. and decide the case in accordance with law. Petition allowed. .