Brown J:

In this case the learned Magistrate dismissed an application by a wife for a maintenance order under s. 37(1) of Cap. 24. From the Grounds of Judgment his reasons appear to be, firstly, that in considering the evidence of the matrimonial quarrels which culminated in a separation by mutual consent he came to the conclusion that the husband "was not wholly responsible for the quarrels"; secondly, that the wife was capable of supporting herself and that on the facts he did not feel justified in imposing a burden on the husband.

Section 37(1) of Cap. 24 provides that if a person neglects to maintain his wife the Court may order such person to make a monthly allowance for the maintenance of his wife. The same word "may" is used in s. 5 of the Summary Jurisdiction (Married Women) Act 1895, and it has been held in England that the word "may", although permissive, is coupled with a duty to enforce the legal right of a wife who has proved her case. It is a husband's common law duty to maintain his wife, and the onus is upon him to show that for some good reason he is excused from the performance of that duty. Such a reason would be if he could show that his wife is living