1. In this case the petitioner was willing to provide a separate residence for his wife in the neighbourhood of his own house. That offer was, however, refused by the wife, and she took proceedings for maintenance under Section 488 of the Criminal Procedure Code against him. The Magistrate has held that, as the husband refused to keep his wife in his own house, he was neglecting to maintain her properly and that the wife ought to be granted a maintenance allowance under Section 488. The petitioner contends that this is erroneous and that that offer is one that prevents the maintenance allowance being granted. In support of this reliance has been placed on In re Gulabdas Bhaidas I.L.R (1891) Bom. 269. In that case it is ruled that there is no authority for the proposition that the words 'as his wife' should be read in after the words 'maintain his wife 'in Sub-section (1) of Section 488. It is pointed out, on the other hand, by Mr. Divatia that in that case the offer was to keep the wife in the husband's own house and that there was only a refusal to keep her there as his wife. That appears to be so. No doubt, the offer that is mentioned at page 270 covers an alternative offer of providing a separate residence, but the judgments show that the Court was considering a refusal of the offer of the husband that the wife should 'live with him'; and therefore that was not a case, like the present one, of an offer that the wife should live in a separate residence. I think, therefore, that this is not an authority that can be said to bind us to the extent that the petitioner's pleader contends. Section 488, Sub-section (1), merely uses the words 'neglects or refuses to maintain his wife', and if those words had remained without any other qualification, then there would, I think, be clear ground for saying that an offer of maintenance in a separate residence, provided that the residence was one befitting the Status of the wife, might be a sufficient offer. But, on the other hand, there would be obvious objections to allowing a husband in effect to expel his wife from his house and at the same time deprive her of the summary remedy provided under Section 488; and Sub-sections (4) and (5), in our opinion, qualify the wide words of Sub-section (1) to this extent that a wife is not bound to accept an offer of her husband to provide her with a separate residence. She can, of course, agree to it, and if by mutual agreement the husband and the wife are living separately, or have been living separately up to the time of the application, there would, of course, be a clear ground for a Magistrate refusing to pass an order for a maintenance allowance. It is only in the case of a refusal to live with the husband that the wife has to show a sufficient reason for such refusal, if she wants to obtain an order for maintenance from a Magistrate. On the principle of ex-pressio unius est exolusio alterius, I think, this plainly shows that it is not necessary for her to show such sufficient reason in the case of a refusal to accept an offer which is not one of her living with the husband, but of living separately. Therefore, in my opinion there is no legal error in the conclusion that the Magistrate came to. This view is in accordance with that arrived at by the Judicial Commissioner's Court at Nagpur in Sakrulla Fakir v. Fatma. (1923) 25 L.J. 453.
2. In the present case, no doubt, the wife had for some time been living in a separate residence provided by the husband; that house was apparently swept away in the floods, and she then went to her father's house, and the husband might legitimately therefore make an offer to provide a separate residence as before. But in our opinion, the wife was not bound to accept the offer, She is entitled to be kept in the house where the husband himself lives, that being also in accordance with the rule of Hindu law referred to in In re The Petition of Shaik Fakrudin I.L.R (1884) Bom. 40, that it is the duty of a woman to reside with her husband and it is her correlative right to be maintained by him under his roof.
3. The second point is whether the Magistrate was justified in passing an order not only granting maintenance for the wife, but also for her two daughters. No doubt, the petitioner, as the father, baa certain prima facie rights in regard to the custody of the children; but it had been clearly laid down by this Court in Emperor v. David Sassoon I.L.R (1925) Bom. 562: 27 Bom. L.R. 359 that a Magistrate is entitled to consider the circumstances in which the father's offer to maintain his children is made, and whether it is right and proper that the children, if not in the custody of the father, should be handed over to him. That must be accepted in preference to other rulings that may have been made in other High Courts; and I think it is a common sense view that should be adopted in such cases, Here the ages of the two daughters are ten and five respectively, and obviously it is in their interests that they should remain with their mother. I think, therefore, that if a maintenance allowance is awardable to the mother, it is a case where a, separate maintenance allowance can also be made to the girls. It might have been different, if they had been boys.
4. In our opinion there is no sufficient reason to interfere with the Magistrate's order on the particular grounds urged by the petitioner's pleader and we would, therefore, dismiss the application.
5. As regards the connected application by the wife for enhancement of the amount of maintenance, we are not disposed to interfere with the discretion exercised by the Magistrate. At the same time we must not be taken to lay down that the ordinary standard of maintenance for a Jain woman is Rs. 8 a month. We go simply on the circumstances of the present case.
6. No order as to costs in Application No. 51 of 1928, but the opponent Bai Manek should get her costs from the petitioner in Application No. 67 of 1928.
7. I agree.