Judgment :- 1. The husband in a proceeding under S.488 Cr. PC. is the revision petitioner. Against him the wife moved for maintenance for herself, and the two children born to her of him. The paternity of the children, and the status of the petitioner as wife were admitted. But the husband's main contention was that the wife is not entitled to separate maintenance. The court below has awarded maintenance to the children at the rate of Rs. 15 each, and separate maintenance to the wife at the rate of Rs. 30 per mensem. Under the proviso to subsection (3) of S.488 Cr. PC. the magistrate is to consider the grounds of refusal on the part of the wife to live with the husband, and if the court is satisfied that there are just grounds for such refusal, the court may make an order awarding separate maintenance. The grounds alleged in the present case for living away from the husband are: (1) Cruelty; (2) imputation of unchastity (this allegation was not raised in the petition, but raised only in the deposition before court); and (3) his disinclination physically to function as husband. Learned magistrate seems to have concentrated solely on the last-mentioned ground namely, failure of the husband to perform his marital duties, and has held that it is a sufficient ground entitling the wife to live away from the husband, and claim separate maintenance. But I do not think, in the face of authorities cited before me, that this is a sufficient ground justifying the award of separate maintenance to the wife. It was observed by Kumaraswami Sastri, J. in Basawamma v. Seetareddi (AIR. 1922 Mad. 209) that there is nothing in the Code which compels the criminal court to award separate maintenance to a wife whom the husband agrees to protect and maintain in a manner suitable to her position in life; refusal to co-habit is no ground. Burn, J. of the same High Court held in Arunachala Assari v. Anandayammal (AIR 1933 Mad. 209) that there is nothing in the Code which compels the criminal court to award separate maintenance to a wife whom the husband agrees to protect and maintain in a manner suitable to her position in life; refusal to co-habit is no ground. Burn, J. of the same High Court held in Arunachala Assari v. Anandayammal (AIR 1933 Mad. 688 (1): "I cannot see that S.488, Criminal PC., has anything to do with ordinary conjugal rights; it deals with 'maintenance' only, and I see no reason why maintenance should be supposed to include anything more than appropriate food, clothing and lodging." On the facts of this case, it is clear that the husband has offered to give his wife maintenance in his house, but he wanted her to live in a separate room, and not to associate with the other members of the family. She has refused this offer, and in my opinion, has no sufficient grounds for refusing. She cannot claim under S.488 Cr. PC. to be treated as a wife; she can only claim to be maintained on the scale appropriate to her station in life. The order for payment of separate maintenance is, therefore, unsustainable. More or less on the same lines is the observation of Hidayatullah, J. (as he then was) in Emperor v. Daulat Raibhan (AIR. 1948 Nagpur 69). The learned judge observed: "Circumstances may arise when the Court may consider that it would not be proper for the wife to live with her husband and then the wife may be permitted to live separate and yet claim maintenance. All such grounds have reference to the comfort and safety of the wife. Conjugal relations are hardly relevant to the order for maintenance under S.488. A wife is not entitled to live apart from her husband and claim maintenance on the ground that her husband is impotent and unable to perform his marital duties". Thus, the trend of the decisions is to the effect that S.488 Cr. PC. is concerned only with the maintenance of wife and children. Conjugal relations are foreign to the scope of the section. So long as the husband maintains the wife consistent with her station in life, she cannot maintain a petition under S.488 Cr. PC. Thus, the trend of the decisions is to the effect that S.488 Cr. PC. is concerned only with the maintenance of wife and children. Conjugal relations are foreign to the scope of the section. So long as the husband maintains the wife consistent with her station in life, she cannot maintain a petition under S.488 Cr. PC. In the above-quoted Nagpur decision the learned judge even went to the extent of observing that even impotency is not a ground for claiming separate maintenance. In the circumstances, I am not prepared to say that cessation from marital duties will amount to cruelty so as to justify separate living by the wife, and claim maintenance. 2. Learned counsel for the respondent points out that there are materials sufficient, in the case to justify the wife living away from the husband; he means cruelty on the part of the husband. Specific acts of cruelty according to him, bad been alleged in the petition, and developed in evidence, but the learned magistrate probably thinking that the ground considered by him namely the one dealt with above, was sufficient to justify the award of separate maintenance, did not focus his attention particularly on the other allegations. It is seen that some evidence was also attempted to establish cruelty. But the learned magistrate has simply left it at that. In the circumstances, I think it advisable to send back the ease for re-consideration of the question from the point of view of cruelty alleged by the petitioner. I would, therefore, set aside the order, and remand the case to the learned magistrate for a re-consideration, and disposal afresh of the matter. Both sides will be at liberty to adduce further evidence if any, to substantiate or refute as the case may be of the above ground. The order so far as it relates to the award of maintenance to the children, will stand confirmed.