Harington, J.:— I am unable to see anything illegal in either of the orders made by the Sub-Divisional Magistrate. The respondent admitted that the petitioner was his wife and offered to maintain her on condition of her living with him; then under sub-section (3) of sec. 488, if she refused to live with him, the Magistrate would have to consider any grounds of refusal stated by her. So far from stating any grounds of refusal to live with him she states in her petition she is willing to live with her husband. Under these circumstances I do not see how the Magistrate could have made an order under Sec. 488 unless the applicant had satisfied him that notwithstanding that offer, there was just ground for making the order. She did not appear at the hearing to satisfy the Magistrate on this point; nor did she send any one to ask for an adjournment on the ground of illness.
2. The case of Mussumat Jamoti… v. Gadalo Kamar…Opposite Party. (1) does not affect this case. In that it was held that where the application had been dismissed by a fully empowered Magistrate after hearing the evidence, the District Magistrate could not entertain the complaint de novo, and it does not lay down the proposition that where a petition for maintenance has been dismissed in default of the appearance of the applicant, it is not open to the applicant to present a fresh petition. The application to re-hear the petition already dismissed does not appear to have been made under any section of the Code giving the Magistrate any power to set aside his previous order and hear the case over again. We must decline to interfere.
Mookerjee, J.:— I agree.
4. Reference discharged.