S. Acharya, J.
1. This is a revision against an order passed by Sri D. Naik, Sub-divisional Magistrate, Athmallik in Case No. 13-M of 1967 ordering the petitioner to pay a sum of Rs. 40/- per month with effect from the date of the institution of the said case on 26-6-1967, towards the maintenance of his wife, the opposite party and his minor son, who are now living away from the petitioner. While passing this order, the Magistrate has further ordered that if the petitioner does not choose to pay the maintenance as aforesaid, he is to live in the house of his wife's parents and to maintain them according to the desire of his wife.
2. The petitioner's wife (the opposite party) filed the aforesaid case against her husband (the petitioner), on the allegation that she being the only daughter of her parents, her father, negotiated with the petitioner, and on getting his consent kept him as Ghar Jwain after performing their marriage. The petitioner lived with his wife in his father-in-law's house for a few years and thereafter, on two or three previous occasions, he left that place and went away to his own village on creating troubles and picking up quarrels with her and her parents. The petitioner has come back to his father-in-law's village with his widowed mother, but is living separately from his wife in his own house, and is not agreeable to stay with her in her father's house in spite of her repeated requests and the decisions of the village Panch. The opposite party as such is remaining in her father's house with her child four and half years old, and the petitioner, does not care to maintain her and her child.
3. The petitioner, on the other hand contended that he could not Jive in his father-in-law's house because of ill-treatment meted out to him there. He stated in his written statement that he was and is always ready and willing to maintain his wife, and his son if they would come over and live with him in his house, in the same village.Instead of the wife and child coming to live with the petitioner, his wife, on the ill-advice of her father, is rather insistent upon him that he should come and live with her in her father's house.
4. The learned Magistrate in para 5, while concluding his findings states as follows :--
'It also appears that the O. P. (the husband) is actually willing to maintain the petitioner (the wife) and her son if the petitioner goes over to the house of the O. P. himself and lives there with him as husband and wife. 'But when the O. P. has married the petitioner on condition that he would live in the house of her parents and maintain her as well as her parents, it seems undesirable to compel her to live with the O. P. in his own house at present. Hence I find that O. P. is legally bound to maintain the petitioner by living with her in the house of her parents.' '
Finally while passing the order for maintenance of the wife and the child at the rate of Rs. 40/- per month, he passed an alternative order by saying.
'.....or in the alternative to live inthe house of the petitioner's parents and to maintain them according to the desire of the petitioner forthwith, .....'
The above finding underlined (here in ' ') by me and the order quoted above are untenable, illegal, and contrary to public policy. In a cause under Section 488 Criminal Procedure Code, the wife may get maintenance from her husband, if she can prove that her husband has sufficient means, and he has neglected or refused to maintain her. Under the first proviso to Clause (3) of the said section it is provided that if such person offers to maintain his wife on condition of her living with him, and she refuses to live with him, such Magistrate may consider any grounds of refusal stated by her, and may make an order under this section notwithstanding such offers if he is satisfied that there is just ground for so doing. So, under this clause there is an expectation that the wife should ordinarily live with the husband, and if she refused to reside with him, the courts, before passing the order for maintenance, should enquire into and consider the reasons for her such refusal. It must be mentioned here that there is no allegation of habitual cruelty, torture, ill-treatment of the wife by the petitioner or that he has contracted marriage with another wife, or keeps a mistress, This case proceeded mostly on the basis that the petitioner should stay with the opposite party in her parent's house and maintain all of them there, because of an alleged prenuptial agreement between them.
5. Under the Hindu Law, as has been observed in the case of Tekait Mon Mohini Jemadai v. Basanta Kumar Singh reported in (1901) ILR 28 Cal 751.
'the duty imposed upon a Hindu wife to reside with her husband, wherever he maychoose to reside, is a rule of Hindu Law and not merely a moral duty.
An ante-nuptial agreement on the part of the husband that he will never be at liberty to remove his wife from her parental abode, would defeat the rule of Hindu Law, and is invalid on that ground, as well as on the ground that it is opposed to public policy.'
In the above decision the following few lines from Mayne's Hindu Law, have been quoted with approval.
' As soon as the wife is mature, her home is necessarily in her husband's house. He is bound to maintain her in it while she is willing to reside with him and to perform her duties. If she quits him of her own accord, either without cause or on account of such ordinary quarrels as are incidental to married life in general, she can set up no claim to a separate maintenance. Nothing will justify her in leaving her home except such violence as renders it unsafe for her to continue the,re, or such continued ill-usage as would be termed cruelty in an English Matrimonial Court.'
6. The fact in this case is that the petitioner is always ready and willing to maintain the opposite party and their son if they come and stay with him in his house constructed in the same village, but the wife, on the advice of her father, does not agree to the same and insists that the petitioner should come and slay with her in her father's house. This being so, it cannot be said that the husband, the petitioner has neglected or refused to maintain the wife by not acceding to the insistence of the wife for going and staying with her in her parent's house. Therefore, the impugned order is illegal in so far as it provides for maintenance for the wife in her father's house, and in the alternative ordering the petitioner to go and stay there with his wife.
7. The case of the child stands on a different footing. The child, wherever he may be, has to be maintained by the father, so long he is incapable of maintaining himself and the father cannot refuse to maintain such a child on the ground that he is not living with him. The child, as I find, is hardly 4 to 5 years old ;md is staying with the mother, which may not be due to his own choice, but because he is in the powei and control of his mother. The child is not deprived of a right of maintenance, because his mother refused to go and live with her husband or to give him in his father's custody. A mere offer by the father to main-tain the child if he is left with him, will not disentitle the child to get maintenance from him.
8. Tn view of the discussions made above, I will set aside the order of the court below granting maintenance for the wife and and also the alternative order directing the petitioner to go and stay with his wife in her parent's house to maintainthem according to the desire of the petitioner. I would, however, order that the petitioner is liable to pay maintenance only for the child, who is, at present, with his mother. Accordingly it is ordered that Rs. 15/- per month will be paid by the petitioner to the opposite party only for the maintenance of their child with effect from the date of the order of the lower court, that is, from 29-3-1968 till he remains away from his father and is considered under the law incapable to maintain himself. The revision thus is partly allowed.