(Prayer: Petition (disposed of on 20-4-1944) under Ss. 435 and 439, Crl. P.C. 1898, praying the High Court to revise the judgment of the Court of the Sub Divisional Magistrate of Amalapuram dated 30-10-1943 and passed in M.C. No. 18 of 1943.)

This is a petition by the wife against the order dismissing her petition filed under S. 488 of the Criminal Procedure Code. The Magistrate has found that there was no cruelty on the part of the husband and he also found that there was no neglect. The husband appears to be living with his parents and there had not been much of cordiality between the parents and the petitioner with the result that she left the house and has not returned to the husbands. After waiting for some years the husband has married a second wife. He offered to take back the petitioner but she refused to go and live with him. Hence the Magistrate dismissed the application.

I see no reason to interfere with the finding on the facts by the Magistrate that there was no cruelty or neglect. It is urged however for the petitioner that the offer of the husband to take her back ought not to have been accepted as a bona fide one and reliance is placed for this on the decision in Sundarammal v. Palaniandi Mudali (1940) 1 M.L.J. 171 = 51 L.W. 204). But that was a case in which there was evidence that the husband was guilty of having ill treated the wife and it was the apprehension of physical ill-treatment that made her refuse his offer. In this case, there is absolutely nothing to indicate that the wife received any physical ill-treatment at the hands of her husband. It is only incompatibility of temperament which prevented the wife from living amicably with her husbands parents that resulted in her leaving her husbands house. So long as the husband is not guilty of any cruelty or of neglect she is bound to go and live with him. I therefore do not think I will be justified in ordering maintenance to be paid to her. The mere fact that the husband has taken a second wife and that too after waiting for several years and after the first wife refused to join him, cannot be said to amount to cruelty. The petition is accordingly dismissed.