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Present: Wood Benton J.
MICHO HAMINE v. GIBIGORIS APPU125—P. G. Matale, 37,042.
Maintenance —Wife living separately from her husband by mutualconsent—Wife cannot claim maintenance.
There is nothing contrary to public policy in a husband – and wifeagreeing to live separately where they find that it is impossible forthem to livetogether.Where a husbandand wife agreeto live
separately bymutualconsent, the wifecannot thereaftercompel
the respondenteither totake her back ashis wife or topay – her
fJlHE facts appear sufficiently from the judgment.
Vernon Grenier, for appellant.
Balasingham, for respondent.
February 29, 1912. Wood Benton J.—
In this case I think that the learned Police Magistrate has inter-preted the facts correctly. I see no reason to doubt the truth ofthe respondent’s story—supported as it is by respectable headmenof long standing, against whose credibility nothing has been urged—that the applicant parted from him a great number of years ago onher own initiative, and that since then, to all intents and purposes,they have been living separate by mutual consent. The questionArises, therefore, whether under such circumstances the separation bymutual consent can be revoked by one party without the consent of 1
1 (1907) 6 Crim. Law Journal of India 421
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the other, and whether here the applicant can compel the respon-dent either to take her back as his wife or to pay her maintenance.No local authority hag been cited to me on that point, and I amnot myself aware of any. Deeds of separation between husbandand wife by mutual consent have long been treated in England asnot being contrary to public policy, and as being enforceable asagainst both parties to them. I do not think that there is anythingcontrary to public policy under our law in a husband and wifeagreeing to live separately where they find that it is impossible forthem to live happily together, and, in my opinion, such a casecomes under section 5 of “ The Maintenance Ordinance, 1889 ”(No. 19 of 1889), which provides that no wife shall be entitled toreceive a maintenance allowance from her husband if they are livingsseparately by mutual consent, The last words in the section mean,I think, “ if they have separated by mutual consent. ” On thegrounds that I have stated I dismiss the appeal without costs.
MICHO HAMINE v. GIRIGORIS APPU