Scope of inference in revision.

This revision is preferred against the order made by the Additional First Class Magistrate at Kulitalai, in M.C. No. 58 of 1959.

The petitioner is the husband of the respondent, Angammal. The marriage took place about 20 years ago, and this couple have got two children, one of whom is sufficiently grown up to have the question of her marriage being taken up. It is very unfortunate that this couple have fallen out and they have been living separately. One of the many causes which seems to have divided the husband and wife is the fact that the wife wanted apparently to get her daughter married to her own brother and which the husband opposed. The marriage was not opposed on the ground that he was within the prohibited degrees, but apparently because the husband has taken a dislike of the brother-in-law proposed by the wife as his son-in-law. It is in these circumstances that this petition for maintenance was filed by the wife. The husband, first of all, stated that the wife had deserted him of her own accord, and, secondly, that he has always been willing to maintain her, and, thirdly, that the wife has left him in order to promote her illicit intimacy with one Velayudam who is living two doors off from the husband’s house. The husband also pleaded that his means were straitened and that he could not give separate maintenance for the wife, as prayed for by her.

The learned Magistrate went into the matter thoroughly and came to the conclusion that the husband and wife had fallen out and that the offer by the husband to take back the wife and maintain her is not bona fide and that his allegation that his wife is in illicit intimacy with Velayudam constitutes legal cruelty within the meaning of section 488, Criminal Procedure Code, justifying her to live apart from her husband and claim separate maintenance. The learned Magistrate, calculating that the income of the husband would be about Rs. 700 per annum and that the husband also was able-bodied and could work, gave the wife a maintenance of Rs. 20 per month as well as a maintenance of Rs. 5 each, for the daughter Subbammal, and the son Veluswami, till they attained majority.

The defeated husband has sought to file this revision petition. The points for determination which have been urged as grounds for the admission of this petition are three in number.

First of all, we have got to see whether this allegation made by the husband about the unchastity of his wife would constitute legal cruelty and would by itself entitle her to live separately from him and claim separate maintenance. There can be no doubt that the settled case-law now on the subject is that a deliberate attribution of immorality to a wife has to be construed as legal cruelty, entitling the wife to live separately and claim maintenance (vide Gangalamma v. Venkatarami1, Raman v. Lakshmi2, Subbamma v. Venkata Reddi3. In this case, that the husband made this allegation is not disputed and that the allegation has not been proved is the finding of the learned Magistrate. The learned Magistrate has held that the allegation was unfounded. It may well be so, because it is extremely unlikely that this elderly woman would seek to contract an immoral alliance which would bring her down in the eyes of the neighbouring public and also jeopardise the chances of her daughter being married properly. In any event, the Magistrate cannot be said to have come to the improper conclusion that this allegation would amount to legal cruelty entitling the wife to live separately and claim maintenance.

The next point taken is the offer to take back the wife. It is no doubt true that the basis for an application under section 488, Criminal Procedure Code, is that the husband refused or neglected to maintain his wife. Therefore, if the husband is always willing and ready to maintain his wife, she can get separate maintenance, only if she is able to show that she has good and sufficient grounds for living separately. But the lower Court has