. Sec. 532.

law requires of the party by or over whose land a stream passes, is that he should use the water in a reasonable manner, and so as not to destroy or render useless, or materially diminish or affect, the application of the water by the proprietors above or below the stream. (Ex. B. L. M., 4th edition, pp. 145-146.)

The above doubtless refers to a civil action like actions for corresponding rights to air and light; it is inserted in this place simply to show the law with reference to the rights of a riparian proprietor in England, and in the hope that the spirit of the above maxim may be found useful in determining what are trifling injuries only, with reference to the wrongful obstruction of running water, &c.

There is nothing in this section which makes it necessary that a breach of the peace is likely before a Magistrate can interfere. In re Troylockecath Sircar. 2 W. R., 64.

In an investigation as to the right of use of land under this Section, a Deputy Magistrate has no legal competency to order the destruction of a wall existing before the case came on, notwithstanding that a right of pathway may appear to have been infringed by the accused party. Report of a Police Officer deputed to the spot is in such a case no legal evidence. -No. 52, 9th March, 1866, p. 49, vol. I, R. C. C. R. From S. J. Hooghly to Registrar. (Sremontoo Duloolee vs. Rani Chand Aduck.)

A right of way or water across the land of another is a right of use of land within the meaning of this section.-C. H. C. Pro., 18th February and 21st February, 1867, and 1st June, 1868.

A Magistrate has a discretion whether he will interfere in a case of a dispute relating to the position of land under this section. The complainant must make out a sufficient case for the summary interference of the Magistrate under that section.-XI, W. R., Cr. R., p. 3.

This section is not intended to provide a substitute for a civil suit to declare the rights of the parties, but only empowers the Magistrate to order that possession shall not be taken by any party to the exclusion of the public, until the party claiming possession obtain a decree for exclusive possession.-Cr. R., VI, W. R., p. 74.

So long as the bed of a navigable river is washed by the ordinary flow of the tide at a season when the river is not flooded, it remains publici Juris; or if it is vested in anyone it is vested in the Crown, not under Regulation XI of 1825, or for mere fiscal purposes, but as representing, and as it were, a trustee for the public. A channel which can be crossed on foot only at the extreme ebb of the tide, and probably for some short time before and after, is not "fordable" within the meaning of Clause 3, Section 4, Regulation XI, of 1825. Nobin Kishore Roy, vs. Jogesh Pershad Gungooly, 14, W. R. 352.

Secs. 533-535

Where the only evidence offered is that of user, it should be such as to show satisfactory acts of enjoyment exercised as a matter of right and permitted uninterruptedly for some considerable length of time. 4, M. H. C. R., 26.

dispute.

533. Whenever a local inquiry is necessary for the purLocal inquiry to poses of this chapter, any Magistrate of determine boundary the first class may depute any Magistrate subordinate to him to make the inquiry, and may furnish him with such instructions, consistent with the law for the time being in force, as may seem necessary for his guidance, and may declare by whom the whole or any part of the necessary expenses of the inquiry shall be paid.

This section has been taken from the provisions of Sections 2 and 3, Regulation XI of 1824.

Power to

able property.

restore

534. Whenever in any Criminal Court any person is convicted of an offence attended with possession of immove- Criminal force, and it appears to such Court that by such Criminal force any person has been dispossessed of any immoveable property, the Court may order such person to be restored to possession.

No such order shall prejudice any right over such immoveable property which any person may be able to show in a civil suit.

This section has been added by the present Enactment, Act X of 1872.

535. Nothing in this chapter shall affect the powers of a Collector or a person exercising the powers Saving of powers of Collectors and Reve- of a Collector or of a Revenue Court.

nue Courts.

Sec. 536.

CHAPTER XLI.

OF THE MAINTENANCE OF WIVES AND FAMILIES.

This Chapter contains the provisions of Chapter XXI., Act XXV. of 1861.

families.

536. If any person having sufficient means, neglects or Order for mainte- refuses to maintain his wife or legitimate nance of wives and or illegitimate child unable to maintain himself, the Magistrate of the District or a Magistrate of a division of a District or a Magistrate of the first class may, upon due proof thereof by evidence, order such person to make a monthly allowance for the maintenance of his wife or such child at such monthly rate, not exceeding fifty Rupees in the whole, as to such Magistrate seems reasonable. Such allowance shall be payable from the date of the order.

If such person wilfully neglects to comply with this order, Enforcement of order. Such Magistrate may, for every breach of the order, by warrant, direct the amount due to be levied in the manner provided for levying fines; and may order such person to be imprisoned with or without hard labour for any term not exceeding one month for each month's allowance remaining unpaid :—

Proviso.

Provided that, if such person offers to maintain his wife on condition of her living with him, and his wife refuses to live with him, such Magistrate may consider any grounds of refusal stated by such wife; and may make the order allowed by this section notwithstanding such offer, if he is satisfied that such per

Sec. 536.

son is living in adultery, or that he has habitually treated his wife with cruelty.

No wife shall be entitled to receive an allowance from her husband under this section, if she is living in adultery, or if, without any sufficient reason, she refuses to live with her husband, or if they are living separately by consent.

The portions of this section printed in italics show the alterations made by the present Enactment, Act X of 1872.

In re Bratby vs. Bratby, the Chief Court Punjab held that European British subjects are amenable under this chapter. This point is now set at rest by the provisions of Section 11 ante which lays it down that "the provisions of this Act shall apply to all persons without distinction of race unless a contrary intention is expressed." This section empowers a magistrate to order maintenance to children legitimate and illegitimate, and to wives, but not to unmarried women in a state of pregnancy. The inability of a husband and wife to agree to live together is no ground for decreeing a separate maintenance to the wife: Musst. Jesmut vs. Shoojat Ali, 6 W. R. 59. An order of maintenance under this section is a "judicial proceeding of a Criminal Court," but no appeal lies against such order: R. vs. Thakur, 5 Bo. H. C. R. 81. Where a Criminal Court ordered a husband to pay a sum of money monthly towards the maintenance of his wife and children, and a Civil Court subsequently, on the motion of the husband for restitution of conjugal rights, gave the husband a decree: held, that the order of the Criminal Court ceased to have effect from the date of the decree of the Civil Court: Lutpotee Dumonee vs. Tikka Modoi, 13 W. R. 52.

When a wife obtains a decree for a judicial separation on the ground of her husband's cruelty and adultery, and there is nothing to impeach her own conduct, the Court will allow her to have the custody of the children. 6 B. L R., 318. Original Civil Macleod vs. Macleod.

Should a person be aggrieved by the amount of an order under this section, he ought to apply under the following section to have it reduced. Goyamouee Soonimee vs. Mohesh Chundra Shuba, 9, W. R., 1. Orders under this section are not open to appeal, only to revision by the High Court. R. vs. Gholam Hossain, 7, W. R., 10. This section does not deprive a wife of any remedy she may be entitled to from the Civil Courts. Lalla Gopeenath vs. Musst Jeetum Koer, 6, W. R., 57. The words "due proof" in this section mean legal proof on oath. Gonda vs. Piari Dass. 13, W. R., 19.

By the principles of Mahomedan Law, the right of a wife to maintenance is expressly recognized; so much so, that if the husband be

absent and have not made any provision for his wife, the law will cause it to be made out of his property; and in case of divorce, the wife is entitled to maintenance during the period of her probation.

There is a recognized species of reversible divorce, which is effected by the husband comparing his wife to any member of his mother, or some other relation prohibited to him, which must be expiated by emancipating a slave, by alms or by fasting. This divorce is technically termed Zihar. (Mac: H. & M. L. p. 215 and 219).

Among Hindoos marriage is not merely a Civil Contract, but a sacrament. Women are betrothed at a very early age and this betrothment constitutes, in fact, marriage. The contract is binding and valid, it is complete and irrevocable on the performance of certain ceremonies. (See Ward on Hindoos, Vol. I, p. 130 et seq :) without consummation. In all cases and for whatever cause a wife may have been deserted, she is entitled to sufficient maintenance. In modern practice, a husband considers it quite sufficient to maintain a superseded wife by providing her with food and raiment. Adultery is a Criminal but not a Civil offence and an action for damages as preferred against the adulterer by the husband will not lie. M. H. & M. L. 62—64.

A magistrate can issue a warrant for the collection of fifteen months' arrears of maintenance. The only consequence of issuing the warrants in the aggregate is that only one month's imprisonment can be awarded in default. There seems no ground in reason or law for defendant being permitted further to benefit by his disobedience and the complainant's neglect. Ruling No. 789. M. H. C., 6 M. J. 383.

It has been ruled that under this section a magistrate has no power to make an order for payment of any sum for maintenance for any period prior to the date on which the complaint was lodged: Musst. Oomree vs. Elahee, Bud., 5 P. R. 10. And the second paragraph of this section, which has been added to this section by the present Enactment, Act X of 1872, makes this clear.

A decision of the Civil Court, refusing to enforce a contract or agreement against a man for the maintenance of a woman, cannot conclude either the woman from applying, or a Magistrate from making, an order, under this section, for the maintenance of their illegitimate daughter. The question whether the evidence before the Magistrate was sufficient to enable him to make that order was a matter for him—not for the High Court to consider.-In re John Meiselback, 17 W. R. 49.

537. On the application of any person receiving or Alteration in allow. ordered to pay a monthly allowance under the provisions of Section 536, and on

ance.