Burn, J.

1. These are cross-appeals. The appellant in S.A. No. 149 of 1937 is the wife of the appellant in S.A. No. 18

5. In O.S. No. 9 of 1934 on the file of the Subordinate Judge of Vizagapatam the wife sued her husband and his father for separate maintenance alleging abandonment and cruelty. In O.S. No. 26 of 1934 the husband sued the wife for restitution of conjugal rights alleging that she was staying away from him without, proper cause. The learned Subordinate Judge tried both the suits together and came to the conclusion that the husband was not entitled to restitution of conjugal rights because he had virtually abandoned his wife and because his offers to maintain her were not genuine or bona fide. The learned Subordinate Judge, therefore dismissed the husbands suit and gave the wife a decree for maintenance at the rate of Rs. 10 per mensem with Rs. 130 for arrears of maintenance. The unprofitable character of this litigation is sufficiently shown by the fact that the learned Subordinate Judge felt himself compelled to order the plaintiff who had sued in forma pauperis to pay to the Government Rs, 269-15-0 for Court-fee due on the plaint. On appeal to the District Judge, the husbands appeal against O.S. No. 26 of 1934 was dismissed but his appeal from the decree in O.S. No. 9 of 1934 was allowed and the decree for maintenance in favour of the wife was set aside. The memorandum of-cross-objections filed by the wife regarding the rate of maintenance was also dismissed by the learned District Judge.



2. Mr. Ramachandra Rao for the wife has laid strong emphasis upon the unsatisfactory result of the decision pronounced by the learned District Judge. He contends that the learned District Judge having found in agreement with the learned Subordinate Judge that the husband was not entitled to a decree for restitution of conjugal rights ought thereupon to have confirmed the decree in favour of the wife for separate maintenance. This contention appears to me to be correct. It is not, as has been frequently stated, necessary that the wife should prove actual cruelty in order to entitle her to a decree for separate maintenance. On the other hand, it is logical that if the husband is found to be not entitled to a decree for restitution of conjugal rights, the wife should be held entitled to a decree for a separate maintenance - see the case of Venkatapathi Nayani Varu v. Puttamma Nagith (1936) 71 M.L.J. 499. It seems to me therefore that the appeal of the wife S.A. No. 149, must be allowed and the decree of the Subordinate Judge in her favour restored. The District Judge found that the rate of maintenance Rs. 10 a month, awarded by the learned Subordinate Judge was suitable and I have not been asked to say that the learned District Judge was wrong in that respect.



3. The appeal of the husband must, on the facts found, be dismissed. It is found that he did abandon his wife and that he did not genuinely want her back.

4. The appellant in S.A. No. 149 will be entitled to her costs from the respondents in this Court and in the lower Appellate Court. S.A. No. 185 is dismissed but without costs.



5. Leave to appeal is refused.