1. There is a preliminary objection that no appeal lies as this is a remand order by the learned District Judge on a point which is not preliminary. The suit was brought by the plaintiff for maintenance and the first issue was: 'Is the plaintiff entitled to maintenance,' which he found against. The learned District Judge reversed that decision, finding that the plaintiff was entitled to maintenance, and sent the case back to the District Munsif to decide the other points in issue. I think there is no doubt that under the ruling in Raman Nair v. Krishnan Nambudripad A. I. R. 1922 Mad. 505 this is a preliminary point. There is no ground, it seems to me, after that Full Bench ruling for saying that a preliminary point depends in any way on the degree of importance it may assume in the hearing of the case. Mr. Justice Coutts-Trotter ( as he then was) defines a preliminary point as a point which, when decided in the way in which it is in fact decided, determines the result of the suit. It seems to me that this matter in question here conforms exactly to that definition.
2. With regard to the merits: we have to consider whether the findings of the learned District Judge are such as to justify him in law in coming to the conclusion that the plaintiff is entitled to relief by way of separate maintenance. The only ground for the District Judge's decision is that she is so entitled because of the respondent's (husband's) neglect to maintain her without lawful excuse. The husband and wife lived together for about two years. It does not appear to have been a very happy time because the wife was accused of stealing some jewels belonging to the husband's brother. The matter went before a panchayat who decided that her father and brother were to pay Rs. 50 as compensation to the brother-in-law. This of course was a finding, for what it is worth, that the wife was guilty of theft. The husband appears to have been very angry on this occasion and abused his wife, and the lower Court finds that he beat her on this occasion. The District Judge, however, agreeing with the District Munsif, finds that there is no proof of violence and that the corporal chastisement administered on this occasion was not sufficient to justify her in leaving her husband' s house. Nor was there any continued ill-usage which would amount in law to legal cruelty. The other incident is important because it is really the case of the wife for leaving the husband's house, and that is, she contracted an illness, as she says on account of an attempt to poison her on the part of her husband. No such attempt has been proved, but the wife was removed to hospital, and, whichever story is right as to exactly what happened or the exact terms on which she proceeded to her father's house immediately she was discharged from hospital, there is no doubt that she did go straight from the hospital to her father's house and she has in fact remained there ever since. The husband's version is that he wanted the wife to come straight home with him from the hospital, but that the father undertook to send her back in a few days. The District Judge's conclusion is that both parties probably thought that as the wife was still under suspicion with regard to this theft it would be better if she stayed in her father's house for some time. In this state of circumstances it is a little curious that the District Judge finds that she did not leave her husband's home of her own accord. The District Judge says that
by his suspicion more than by his punishment he had made his home too hot for her
and that as he admitted in his counter-petition to the petition to sue in forma pauperis she left, being unable to bear the persecution that she was subjected to by the owner of the jewels, namely, her brother- in-law. The Telugu word used means 'pressure' and it seems to me, there being no evidence as to what this pressure was or whether it was such a worrying or mental harassment of the wife as would really amount to legal cruelty, I can come to no satisfactory conclusion about that, particularly in view of the just previous finding of the learned District Judge that there was no ill-usage which would amount to cruelty in law. The fact being that this wife returned from the hospital to her father's house and has been living there ever since, has the husband been guilty of neglect or abandonment? The neglect is said to be that he failed to provide her with fool and raiment. In 1921,. about six years after she left her husband's house, she wrote Ex. 1 through a vakil not, be it noted, asking the husband to take her back, but asking him to make some provision for her maintenance,
in spite of the repeated demands made to you from time to time (that is six years ago as regards her food and clothes) you have not made any arrangement about the same.
3. The Judge really bases the whole case on the fact that the husband did not reply to this letter and that it was his duty to go to the wife and beg her to return. Is that the law? It is no doubt, the duty of a Hindu wife to reside with her husband whenever he may settle his residence- and according to Mayne, para. 456 nothing will justify the wife in leaving her home except such violence as renders it unsafe for her to continue there or such continued ill-usage as would be termed cruelty in an English matrimonial Court and Mr. Justice Wallis (as he then was) in S. Bangaramma v. S. Brambaze  31 Mad. 338 says:
It is undoubtedly the duty of a Hindu wife to live with her husband and under his protection and if without due cause she leaves him and lives apart she cannot claim to be maintained by him.
In the absence of clear authority to the contrary I am of opinion that it is her right and also her duty to return to her husband.
4. I have already pointed out that in Ex. 1, the only letter we know that passed between the parties, she does not ask her husband to take her back and no authority has been quoted to us to show that it is any part of a Hindu husband's duty to go and ask his wife to return when she has left his house or when she remains away from his house without any reason which can be justified in law. It has been contended by the learned vakil for the wife that the husband' s conduct amounts to an abandonment, that is, a refusal to maintain her, but, as pointed out by Sir John Wallis in the case cited above, there can be no claim to separate maintenance where the wife is not justified in living apart from her husband. In this case we have no cruelty, and no driving her away from the house. The only possible thing that can be said, it seems to me, is that the husband has married another wife in the interval. That has again and again been held to be no excuse for a wife to abandon her husband' s protection or to refuse to live with him. That she has refused to come back is quite evident. The District Munsif points out that she refused because she was afraid that she would be beaten and abused But the learned Judge says that it would be unfair to the woman to accept her at her word and that what she really meant was that the husband was not sincere in his professions to support her in his own house if she would go back. That offer has again been made to-day, and, although one rather discounts these professions made in a suit where there is a chance of a separate maintenance being awarded to the wife as against the husband, from the best consideration I can give to this matter it seems to me that the learned District Judge was not justified on the facts found in coming to the conclusion that he did, and that there is nothing here to entitle the wife to separate maintenance apart from her husband because, as I hold, there are no facts sufficient to justify her in living away from his protection. In my opinion this appeal must be allowed, the decree of the lower appellate Court set aside and that of the District Munsif restored with costs throughout.
5. I agree with my learned brother for the reasons he gives that an appeal lies against the order of remand passed by the learned District Judge in this case.
6. The learned District Munsif dismissed the plaintiff's claim for maintenance. He commenced his judgment by pointing out that the plaintiff must show that she had sufficient cause to live separately from her husband. He then went on to extract from the plaint, in which she stated that the defendant was leading a loose life and consequently not treating his wife properly, that his conduct even amounted to acts endangering her life and that in or about the beginning of 1918 he drove her out of his house. He proceeded to point out that in her evidence she gave a version substantially different from that which is contained in the plaint. There for the first time appeared the story that the motive for ill-treating her was to get rid of her in order that the husband might marry his sister's daughter. This the District Munsif found to be not substantiated. The truth seemed to be that there was trouble over the theft of some jewels, that the husband chastised the wife and that some time after this incident she fell ill and had to be removed to the hospital. On the one side the illness was attributed to natural causes, but the wife ascribed it to poisoning and it was suggested that the poison was administered by the husband. Again the District Munsif found that this story was unsubstantiated and regarded it only as a pretext by the plaintiff's people to take her to their house and to prevent her from going back to the defendant. He then proceeded to discuss her reasons for not returning to him and finding them not sufficient in law he dismissed the suit.
7. The learned District Judge devoted his judgment mainly to the circumstances in which the plaintiff left her husband's house, and while referring in one place to the fact that he beat her and in another to his having made his home 'too hot for her' he seems to come to the conclusion that after she was taken to the hospital and had recovered, both parties deemed it desirable that she should dwell for a time with her parents and accordingly she went to her father's house. There she remained for several years and he makes it a special charge against her husband that he did not make the first advance towards getting her back again. I gather that he deemed this omission on the part of the husband to amount to a desertion of the wife. At the close of his judgment he observes that the plaintiff had failed to prove cruelty, but he considers that she was entitled to separate maintenance on the ground of the respondent's neglect to maintain her without lawful excuse. The legal sufficiency of this ground for granting maintenance has been challenged before us. It is I think incontestable that a wife who claims maintenance must show that she is justified in living apart from her husband, and to show this she must prove either cruelty or abandonment or both. I have already observed that the learned District Judge has found that cruelty has not been proved. The evidence seems to show that the wife got into trouble over the jewel affair. In connexion with this she may have been ill-treated by her husband and we have the husband's own admission in the counter to the pauper application that pressure was brought to bear upon the wife by his brother, who was the injured party in the jewel theft, and that for this reason she left the house. That is all we know, and I think it is clear that legal cruelty has not been substantiated.
8. Then as regards abandonment: the only proof of this which the plaintiff tenders amounts not to a refusal by the husband to take his wife back,'but merely to an omission 'to invite her' back after she had left him. There is no question that a mere omission to ask the wife to return would not amount to a refusal to take her back and therefore to an abandonment. As has been pointed out in. S. Bangaramma v. S. Brambaho  31 Mad. 338 it was her duty to return irrespective of any application that he might make in that behalf. Considering that she allowed an interval of six years to elapse without making any such application the husband may well have supposed that she was satisfied to remain where she was. The notice, Ex. 1, which was sent to the husband in 1921, contains no such request to be taken back, but merely a claim to be paid maintenance. It is unnecessary to say that had her husband at that time paid her maintenance and allowed her to remain apart from him, it would have constituted an admission that her case was right and that he had no defence. In her own evidence she stated that she was not willing to return to him. Abandonment, therefore, by the husband has not been proved and consequently, there being neither cruelty nor abandonment, the legal basis for an order for maintenance has not been established.
9. I agree accordingly that the order of the District Judge must be set aside and the decree of the District Munsif restored. The defendant will have his costs throughout.