C.M. Lodha, C.J.
1. This revision petition) arising out of the proceedings under Section 485, Code of Criminal Procedure, is directed against the order dated December 24, 1974 by which the learned Munsiff and Judicial Magistrate, Jodhpur District, Jodhpur dismissed the husband's application dated April 14, 1970 under proviso (1) to Sub-section (3) of Section 488, Code of Criminal Procedure.
2. The facts of the case may be stated within a narrow compass: The non petitioner Mst. Patasi (who will be hereinafter referred to as 'the wife') made an application against the petitioner Ganeshram (who hereinafter be referred to as 'the husband') for maintenance under Section 488, Code of Criminal Procedure. The husband having remained absent an exparte order for maintenance at the rate of Rs. 40/- per month was passed in favour of the wife on January 20, 1969. The husband applied for setting aside the exparte order, but his application was refused. Thereafter on April 14, 1970 he made an application purporting to be under Sub-sections (4) and (5) of Section 488, Code of Criminal Procedure, praying that the order granting maintenance to the wife may be vacated as he is prepared to keep her with him. This application was resisted by the wife. However, by his order dated July 1, 1971 the Sub-divisional Magistrate set aside the earlier order dated January 20, 1969. Consequently, the wife filed a revision application in the Court of Additional Sessions Judge No. 1, Jodhpur who made a reference to the High Court and the High Court by its order dated August 30, 1972 allowed the reference thereby upholding the earlier order of the Magistrate, dated January 20, 1969, but further directed the Magistrate to give opportunity to both the parties to lead evidence before deciding the application filed by the husband under Section 488 (5), Code of Criminal Procedure.
3. After recording the evidence produced by the parties, the learned Magistrate by his impugned order dismissed the husband's application. Hence this revision petition.
4. The only point urged by the learned Counsel for the petitioner is that the wife has failed to prove the grounds of refusal by her to live with the husband, and, therefore, the application made by the husband should be allowed, and the order granting maintenance should be vacated.
5. Now it may be pointed out that in the application dated April 14, 1970 the husband has stated that he was prepared to keep the wife with him, but the wife had voluntarily left his house even after an agreement had been executed between the parties. This is all that has been stated in the application purporting to be under Section 488 (4) and (5), Code of Criminal Procedure. It is beyond dispute that the husband has neither alleged nor proved that the wife had started living separatelo from him by mutual consent or that she was living in adultery. Thus the requirements of Sub-sections (4) and (5) of Section 488, Code of Criminal Procedure, are not fulfilled, and the right of the wife to get maintenance in pursuance of the earlier order dated January 20, 1969 cannot be negatived. The only question which requires consideration is whether on the offer having been made by the husband after the initial order dated January 20, 1969 can be accepted and the order granting maintenance to her can be recalled en the basis of this offer. Here it may be pointed out that & the agreement referred to by the husband in his application dated April 14, 1970 had been taken into consideration by the learned Magistrate before passing the order dated January 20, 1969 and he came to the conclusion that the husband had been persistently ill-treating the wife so as to make it physically impossible for her to live with him. Even after taking into consideration the fresh evidence recorded by the Magistrate in pursuance of the High Court's order dated August 30, 1972, I do not see any ground for setting aside the findings arrived at by the learned Magistrate in the earlier order. A bare reading of the statement of the wife dated July 5, 1973 leaves no manner of doubt that the husband was persistently cruel to her and gave her beating off and on, and on the basis of this statement it would not be unreasonable to come to the conclusion that there is still a ground for her to believe that if she returns to the husband's home the ill-treatment will continue There is nothing in the application made by the husband nor in the evidence led by him to show his repentance for the past ill treatment. All that he has stated in the application is that he is prepared to keep her, but from the statement given by the wife as supported by the earlier order of the learned Magistrate dated January 20, 1969 I have come to the conclusion that the grounds of refusal stated by her are neither imaginary nor unsubstantial. In this view of the matter, notwithstanding the offer made by the husband I am of the opinion that there is a just ground for the wife for refusing to live with him. It is pertinent to point out here that the husband has made the application under Sub-sections (4) and (5) of Section 488, Code of Criminal Procedure, under which a wife may be disentitled to claim maintenance either on proof of adultery or on proof of her living separately by mutual consent, but the husband has not led an iota of evidence in support of any of such charges. On the other hand, learned Counsel for the petitioner frankly stated before me that his client did not rely either upon mutual consent or adultery.
6. The result is that I do not see any force in this revision petition & hereby dismiss it.