1. This rule arises out of a wife's petition for maintenance under Section 488, Criminal P.C. The Chief Presidency Magistrate made an order on the husband to pay maintenance at the rate of Rs. 35 per month for the wife and Rs. 15 per month for child. The ground on which the rule was issued was that the order was passed without coming to a proper finding as to the petitioner's defence under Sub-section (4). Sub-section (4) says that no wife shall be entitled to receive an allowance from her husband under this Section if she is living in adultery, or if without any sufficient reason, she refuses to live with her husband, or if they are living separately by mutual consent. Adultery is not alleged, but at the time I issued the rule I was persuaded that the petitioner's case in answer to the wife's claim was two-fold, that she was staying away from her husband without any sufficient reason, and also that they were living separately by mutual consent. The Magistrate's order appeared to deal with the first objection hut not with the second. The record is now before me, and I have had an opportunity of reading the petitions, the depositions and the correspondence, and I am satisfied that the case of living separately by mutual consent had not been made in the Court below. The parties were married on 6th March 1931, and there was one issue of the marriage, a daughter, in May 1932. It is common case that since their marriage they lived together at 3- A Chowringee Lane under the roof of the petitioner's mother-in-law, Mrs. Wiffen until 10th November 1935. On this date the petitioner left the house to live away from his wife and child. It is also common case that he agreed at the time to pay half his salary every month to his wife. This would appear from a pencil note which the petitioner admittedly wrote to her on the same day. This is Ex. 2 and is in these terms:
I'm not coming back. I'll send my lorry for my things to-morrow and would thank you to make over the same to my coolies. I will send half my pay every month by M.O.
2. The petitioner says that he was made to write this note by his wife and his mother-in-law before he left, but the Magistrate has refused to accept this story. He finds on the other hand that the petitioner sent along this note after he left. Be that as it may, it is the petitioner's case now that this note is evidence of a mutual agreement to Hive apart. But this is belied by the statement which he himself filed in showing cause. The burden of his complaint in this statement was that he 'was compelled to leave because of the 'tyranny' of his mother-in-law. He had pressed his wife again and again to 'come and live with him in a separate house', but she was too much under the influence of her mother, and not only did she refuse, but reported the matter to the latter, and stung by the 'insult' he received from his mother-in-law, he left the house, or as he puts it, 'had to come away'. This certainly does not look like 'living separately by mutual consent'. Because the wife would not live in a separate house with him, but insisted on staying on with him where they were, and he on his part was not willing or did not find it possible to comply with her wishes, I for myself fail to see how this would amount to 'mutual consent' to live apart from each other. If anything, it shows just the contrary. It is no use the petitioner saying that he was hoping by the step he took to induce a change of mind in the wife. The step he took was his own, and neither his hopes nor his fears would make it an act to which the wife was an assenting party. On his own showing, the wife would have him stay on under her mother's roof and if for any reasons he found this impossible or inconvenient, he might plead excuse enough, or even provocation enough, for his action, but certainly it would not be action taken by 'mutual consent'. In his evidence the petitioner makes no such categorical case of living apart by mutual consent. All that he says is that the written statement he has filed represents the correct state of things. This does not carry the matter any further.
3. I cannot say therefore that the Magistrate was wrong in not coming to an ex. press finding on this particular plea. If it gives the petitioner any satisfaction, I would record the finding on the evidence and other materials on the record that there is absolutely no basis for such a plea. I hold that there was no mutual agreement; between the parties for living separately. There was undoubtedly an agreement to pay half the salary as maintenance, but this was not, and did not imply, mutual agreement to live apart. The only other ground which remains is whether the wife had any 'sufficient reason' for refusing to live with her husband. This part of the case was gone into by the learned Magistrate, and his findings amount to this, that the 'past conduct' of the petitioner and the ' circumstances in which he left her,' taken along with 'the long period they have lived apart,' constituted 'sufficient reason.' He did not put it in so many words, using the terms of the Section, but you do not require ipsissima verba to express the finding. The learned Magistrate said enough to show that the wife had sufficient reason for refusing to live with the petitioner. He said first that there was nothing before him from which he could conclude that the petitioner was ever in the past anxious that she should come away from her mother to live with him; secondly, that the petitioner's present offer was not bona fide, but made simply with the object of escaping liability, and finally that the petitioner 'used to neglect her and treat her badly, until on 10th November 1935 he finally left her after assaulting her.' If this is not a finding of 'sufficient reason' within the meaning of Sub-section (i), I do not know what is. The Magistrate's order was therefore perfectly right, and the rule must be discharged. The petitioner will pay two gold mohurs as costs of the rule to the opposite party.