Cruelty by the husband can amount to neglect or refusal to maintain the wife, and the wife's refusal to come back to her husband is justified if the husband's offer to maintain her is not genuine.

JUDGMENT :

S. Acharya, J. - This is a revision by the husband, the opposite party in the Court below, in a proceeding u/s 488, Code of Criminal Procedure who has been ordered to pay a monthly allowance of Rs. 40/- to his wife (the Petitioner in the Court below) for her maintenance, and Rs. 30/- only as costs of the proceeding.

2. The wife?s case in the proceeding u/s 488, Code of Criminal Procedure is that she is the married wife of the Petitioner herein, and that she lived with him as such for about 11 years. In 1967 her husband ill-treated her, did not provide her with food, assaulted her and did not take care of her during her sickness. In the month of Kartik that year she fell ill and her husband did not take care to get her treated, and so she was brought to her father?s house for treatment. Ever since that time her husband did not go to call her. She also alleged that her husband married for the second time in 1969. This allegation of second marriage could not, however, be substantiated by the wife.

3. There is no dispute about the fact that the opposite party is the legally married wife of the Petitioner. The Petitioner contested an the other allegations of his wife, and also pleaded his inability to pay maintenance to his wife.

4. The Court below on an elaborate consideration of the evidence on record, has believed the wife?s case that she was ill-treated by her husband (the Petitioner herein), who did not provide her with food, assaulted and tortured her, did not take care of her during her sickness, did not go to bring her back from her father?s house by reconciling the difference existing between them for about two years. It also finds that the husband?s offer to maintain? the wife if she comes back to his house is not genuine and rather is a mala fide one. On the aforesaid findings, and on the finding of the financial ability of the husband, the Court below has ordered that the husband shall pay an allowance of Rs. 40/. per month to his wife (the opposite party in this provision) for her maintenance from the date of her filing of the aforesaid petition. It is also ordered that the husband should pay to his wife a consolidated sum of Rs. 30/. as costs of the proceeding. The above findings of fact could not successfully be assailed on any convincing ground.

5. Mr. Mohanty, the learned Counsel for the husband, the Petitioner herein, contends that the Court below was not justified in ordering the aforesaid maintenance merely on the finding of cruelty, and without an express finding to the effect that the husband neglected or refused to maintain the wife. The above contention of Mr. Mohanty is without any weight and/or substance. It is the categorical finding of the Court below that the husband did not provide her with food, assaulted her did not take care of her during her sickness. He also did not go to meet her for more than two years, and there was no attempt on his part to bring her back from her father?s house. It has also been found that the husband?s offer to maintain the wife in his house is not genuine and is a mala fide one. The neglect or refusal of the husband to maintain the wife may be express or implied and the same can properly be inferred from the conduct, of the husband and the nature of the treatment meted out to the wife, by her husband or by some others at his instance, consent, or approval. Cruelty may be a ground for the wife?s refusal to, stay with her husband and in that case the husband has to maintain his wife in her separate residence, and failure to do would amount to ?neglect or refusal? mentioned in Sub-section (1) of Section 488, Code of Criminal Procedure. On the above mentioned unassailed findings it can justly and properly be said that the husband neglected and/or refused to maintain his wife. Accordingly, the above-mentioned contention put forward by Mr. Mohanty is without any substance.

6. It is next urged by Mr. Mohanty that in view of the categorical admission of the wife that she was n