H.C.P. Tripathi, J.
1. This is a hard case.
2. Applicant Smt. Prabhawati moved the City Magistrate Allahabad under Section 488, Criminal P. C. to award her maintenance allowance from the opposite party who is her husband on the allegations that owing to the negligence and ill-treatment meted out to her by the husband, she had been living along with her children with her mother in the city of Allahabad and that it was not possible for her to go back to the opposite party on account of his and his father's unbecoming and cruel treatment. Opposite party, however, denied her allegations before the trial court and expressed a desire to keep her and the children with him and to maintain them to the best of his resources. The applicant, however, refused to go with him and the learned Magistrate rejected her application for maintenance because in his opinion 'there was no sufficient reason for applicant's refusal to live with her husband.'
3. A revision was filed by the applicant before the learned Sessions Judge who was of the view that the opposite party bad made a false allegation of unchastity against the applicant which amounted to legal cruelty giving her sufficient reason to live separately from her husband and yet to claim maintenance. He, therefore, reported the case to this Court with a recommendation that the order of the Magistrate be set aside.
4. The applicant and her husband both appeared in Court along with their counsel. The husband again reiterated his desire to keep the applicant and the children with him and to maintain them to the best of his ability and resources. The applicant, however, in spite of persuasion from the counsel refused to go with him. I am satisfied from the manner and the intensity of feeling with which the offer was made that the opposite party is genuinely and keenly desirous to keep his wife and children with him and to do his best to maintain them, and [ agree with the findings of the learned Magistrate that there appears no apparent Justifiable reason for the woman to have spurned the offer of her husband.
5. It is no doubt true that in his complaint under Section 498, I. P C. filed against the mother and brother of the applicant, the opposite party had made certain foolish allegations against the chastity of his wife but the fact remains that that case was compounded between the parties. The opposite party has explained that finding himself unsuccessful in his attempt to get back his wife from his brother and his mother-in law and apprehending that they were intending to send her with some other person he had filed a complaint to put pressure on them so that be may be able to get back his wife. The opposite party has also explained that in spite of the compromise the applicant was not sent to him and he was compelled to file another complaint under Section 498, I. P. C. against her mother and brother again with a view to get back his wife. The learned Magistrate has held that the foolish allegations made in this complaint by the opposite party against the applicant were not because he really believed in them or wanted to defame her but with a view to put pressure on the family members of the applicant to send her back to him. There appears force in this reasoning. The very fact that the opposite party has been filing repeated complaints under Section 498, I. P. C. during the past several years against his mother-in-law and brother-in-law and others and has been prosecuting the same during the last two or three years in court indicates his keen desire to get back his wife and to force her people to allow her to live with him. I, therefore, agree with the explanation submitted by the learned Magistrate that 'there was no mala fide intention on the part of 'the opposite party in preferring the charge of adultery against the applicant' in his complaints.
6. Before the court of the Magistrate opposite party and his father both have stated that they did not suspect the fidelity of the applicant and the Magistrate felt satisfied about the genuineness of their statement. No other instance of cruelty or ill-treatment perpetrated by the opposite party against the applicant was held established by the Magistrate. The learned Sessions Judge also does not speak of any other ill-treatment meted out to her.
7. The question, therefore, arises whether if a husband in hiS weaker moments, pressed by unfavorable circumstances, makes a false charge of unchastity against his wife but later on in calmer moments sincerely recants it, does it disqualify him for ever from enforcing his marital relations against his wife? Does it give the woman an undefeasible right of living away from her husband so long she desires and still claiming maintenance from him? If the husband categorically and genuinely affirms that his previous allegation of unchastity against the wife was false, that he does not suspect the character of his wife and is anxiously willing to keep her with him with honour and dignity, even then, will his previous lapse amount to legal cruelty so as to give a reasonable ground for the woman to re! use to go with him? In my opinion, it cannot, and the question has to be answered in the light of the circumstances of each case.
8. If the false allegation of unchastity has been made with a view to defeat the wife's genuine claim of maintenance or to defame her before the public, it will certainly give a reasonable ground for woman to refuse to go with her husband and still to claim maintenance. But if it has been made not by any such motive but under pressing circumstances and with the aim of getting back the wife from the possession of others, and further if the husband recants that allegation and is sincerely willing to keep the woman with him, there will be no justification for the woman within the meaning of Section 488, Criminal P. C. to refuse to go with the husband. In this view of the matter, I am not prepared to disagree with the assessment of evidence made by the learned Magistrate and hold that the applicant had no justifiable reason to live separately from her husband.
9. The opposite party his just passed his M. A. from the University. He is still unemployed and is dependent for his livelihood on his father. From certain papers, which are on the record it appears that the applicant could prosecute his studies with the help which he received from the University authorities and other educational Institutions in the shape of freeship and scholarship. From the report of the Tahsildar which is on the record it appears that his family consisting of his Father and uncle owns about six Bighas of land yielding about Rs. 400per annum as income which shows that it is impossible for him in the present circumstances to be able to provide a separate maintenance allowance to his wifeand children. If the wife and children live with him, he may be able to maintain them as he maintains himself but so long as he is unemployed and is dependent on the earnings of his father it will be hard for him to arrange a separate maintenance allowance for his wife. It may be another matter if the circumstances are changed and he gets a gainful employment.
10. The order passed by the learned Magistrate is based on an appreciation of evidence which is reasonable and does not call for an interference. This reference is, therefore, rejected.