1. I think the order of the Magistrate is right. The Counter-petitioner, agreed to maintain the petitioner, his wife with the consideration due to her position as wife and give her food and clothing but stated that he had not made up his mind whether he would cohabit with her. It is argued that this is not a sufficient offer under Section 488 of the Criminal Procedure Code. All that proviso to Sub-clause 3 enacts, is that, if a husband offers to maintain his wife on condition of her living with him and she refuses to do so the Magistrate may consider any ground of refusal stated by her and pass orders.
2. I do not think that there is anything in the Code which compels the criminal court to award separate maintenance to a wife whom the husband agrees to protect and maintain in a manner suitable to her position in life simply because he refuses to cohabit with her. Reference has been made to Marakkal v. Kandappa I.L.R. (1883) Mad. 371, where it was held that an offer by a Hindu having two wives to maintain his first wife by allowing her to live in his house and to supply her with grain to be cooked and eaten separately coupled with a refusal to live with her as husband and wife was insufficient in a complaint under Section 536 of Criminal Procedure Code of 1872. The offer in that case was to treat the wife practically as an outcaste. In Queen Empress v. Mannatha Achari 4 M.L.J. 83 it was held that all that is necessary is that the offer must be an offer to maintain the wife with the consideration due to her position as wife.
3. The question was considered by Jardine and Parsons JJ. In re Gulabdas Bhaidas I.L.R.(1891) 16 Bom. 269 with which Judgment I entirely agree. I dismiss the petition.