VASUDEVAN Vs. DEVYAI VIJU

JUDGEMENT

(1.) THE respondent in M.C.No.26 of 1971 before the District Magistrate,Ernakulam,is the petitioner before me.An application was filed against him under section 488 of the Code of Criminal Procedure claiming maintenance for his two children,aged 3 years and 1 1 / 2 years respectively.The learned Magistrate ordered maintenance at the rate of Rs.22.50 per head per month from the date of,the petition.It is against this order that the present petition is filed.

(2.) THE only contention raised by the learned counsel for the petitioner before me is that it is admitted by the wife,who examined herself on behalf of the petitioners before the District Magistrate,that the respondent -husband,was giving a bottle of milk to the children every day and that he had given two sets of clothes during the last 'Onam ' ;.On this admission it is contended by the petitioner that there was no neglect or refusal to maintain on the part of the petitioner before me and as such jurisdiction under section 488 is not attracted.According to him,a petition for maintenance can be filed only if there is neglect.Partial neglect is not contemplated under section 488 Crl.P.C.He has been maintaining the children according to his means.Even though the giving of one bottle of milk a day to the children is not proper maintenance,it cannot be said that he has neglected to maintain the children and as such the petition cannot be sustained.In support of this con­tention he brought to my notice a decision reported in State v. Manda A.I.R.1926 Bombay 197.In that case,the wife was staying with the members of the joint Hindu family.The husband was sending a limited amount for maintenance to her.It was contended that the amount sent is not adequate to maintain,the whole family.The family fell into evil ways and therefore they could not maintain themselves with the amount sent by the husband.This case was cited before the learned Magistrate also.In that case the question,whether neglect will come within the ambit of section 488 and not arise.

(3.) HOWEVER ,it has come out in evidence that the petitioner -husband before me is a tea -shop keeper and his total income per month is only Rs.90 and that he has others to maintain.I,therefore,feel that some reduction in the maintenance ordered is called for.I,therefore,hold that the maintenance of Rs.20 per month per child will be sufficient in the circumstances of the case. With the above modification as regards maintenance awarded by the District Magistrate,the criminal revision petition is dismissed.