A wife is not entitled to interim maintenance unless she can establish a prima facie case of cruelty.

S. BARMAN, J.

( 1 ) THE defendant husband is the petitioner in this Civil Revision directed against an order passed by the learned Subordinate Judge, Berhampur, allowing the plaintiff wife, as interim maintenance, a consolidated amount of Rs. 30/- on the petition to her suit against her husband, the defendant, for separate maintenance on the allegation that the defendant husband was cruel to her and that she had to abandon her husband's house and put up in the house of her maternal uncle. The said application for interim maintenance was opposed by the husband, on the ground that she was not entitled to such separate maintenance as she, of her own choice deserted him. The learned Subordinate Judge, however, on the basis of the admitted position that the plaintiff is the wife of the defendant and now living separate from her husband made an order for interim maintenance as aforesaid. Hence this revision.

( 2 ) MR. L. K. Das Gupta, learned counsel appearing for the husband defendant (petitioner before this Court) contended that the wife is not entitled to separate maintenance and so the court should not grant interim maintenance. In order that wife may be entitled to separate maintenance she must prove that she is the legally wedded wife of the husband and also that the husband has been cruel to her. A wife's first duty to her husband is to submit herself obediently to his authority and to remain under his roof and protection. She is not, therefore, entitled to separate residence or maintenance, unless she proves that by reason of his misconduct or by his refusal to maintain her in his own place of residence or for other justifiable cause, she is compelled to live apart from her husband. Neither unkind-ness not amounting to cruelty nor the fact that the husband has taken a second wife nor ordinary quarrels between husband and wife justify the wife in leaving her husband's house. But she will be justified in leaving her husband's house and will be entitled to separate maintenance from him if he kept a concubine in his house or habitually treated her with such cruelty as to endanger her personal safety (Mulla's Principles of Hindu Law, 10th Edi-' lion, page 610, Article 555 ). In the present case, the plaintiff is the lawfully wedded wife of the defendant-petitioner. The wife brought a suit for recovery of separate maintenance from the husband at the rate of Rs. 100/-per month, on the allegation that she was compelled to leave the house of her husband on account of alleged cruelty of the husband on her. The husband is contesting the suit, on the ground that the allegation of cruelty is false and that the wife was ill-advised by her maternal uncle to leave his (his-band's) house so that the maternal uncle may make a personal bargain through her by way of extracting maintenance from her husband. The husband also makes a further grievance that his wife stealthily abandoned his house through the scavenger's door and took away with her seventeen tolas of gold ornaments. The husband is willing to get back his wife and make a happy home, but the maternal uncle of his wife has been misleading her not to return to her husband. It also appears from record that at the instance of the said maternal uncle, she filed a maintenance case M. C. 79 of 1955 before the Special First Class Magistrate of Berhampur under Section 488, Criminal Procedure Code, against the husband on the very same allegation of cruelty. The said criminal case was dismissed, upon being contested by the husband and the allegation of cruelty was found to be false. Thus battled in the Criminal Court, the wire tiled the present suit for recovery or separate maintenance and residence as aforesaid and prayed for grant of interim maintenance on the allegation that although she has been living in the house of her maternal uncle, he is too poor to maintain her. These, indeed, are matters which remain to be decided in the suit itself on merits.

( 3 ) THE question is whether or not