PAPPI KOVILAMMA Vs. MOOPIL ERADI

JUDGEMENT

(1.) This revision petition has been referred to a Division Bench by a learned single Judge who heard the matter as he thought that the decision of another learned single Judge of this Court in Ramankutty Achan v. Kolyanikutty ( 1970 KLT 554 ) requires reexamination. This revision arises out of an order passed by the Sub Divisional Magistrate, Malappuram, on an application for maintenance filed by the petitioner under S.488 of the Criminal Procedure Code. According to her, the respondent husband has sufficient means and has refused or neglected to maintain her since 1968. She is aged 68 and the respondent is aged 80. The respondent opposed this application on the ground that be had acquired properties in her name and she is residing in the house in the property purchased by him. She has obtained a large share on partition of her tarwad. He has no means to attend even to his own needs, is an invalid, has poor eyesight and he is being attended to by others. This application, according to him, is filed without any bona fides at the instance of her son inlaw and one son for certain ulterior purposes and not to get any maintenance for her day to day existence.

(2.) The respondent married the petitioner 37 years ago. She is his second wife. He has four children by his first wife and on the death of the first wife he married the petitioner. The petitioner has also three children, one daughter and two sons. The daughter has been given in marriage. The eldest son is employed in Nedungadi Bank and the last son has unfortunately not completed his education though every effort was made to educate him by the Respondent. The children by the first wife are also looking after their own affairs. The respondent and the petitioner come from apparently aristocratic families. Though there were some litigations in respect of the properties of the family of the petitioner, those litigations were all attended to and the properties of her tarwad got partitioned among the sharers. Herself and her children have obtained one-fourth share of the extensive properties of her tarwad. The respondent has provided for his children by the first wife and also purchased properties in the name of the petitioner for her use and for use of her children. Till 1968, it is common ground, the petitioner and respondent were living together. The respondent was looking after her affairs and maintaining her. Thereafter, they have begun, separate residence for reasons which are not clear from the records. The respondent is staying with his eldest daughter by the first wife in a building belonging to her. The petitioner is staying in the property purchased in her name by the respondent alongwith her second son. Some criminal cases are also pending in which the petitioner's second son as well as the respondent figure as complainants against each other. It is in this background that this application for maintenance is filed by the petitioner against the respondent. The learned Magistrate found that the respondent is not in good health, has poor eyesight, is mentally weak, unable to walk or climb steps, is now living with his daughter by the first wife and being looked after by her. The Magistrate also found that the respondent had practically given away all his life's earnings to his children by the first wife and the petitioner and her children and he is leading a retired life. Of course he continues to be the manager of a school. The school and the premises belong to him and he gets a maintenance grant for the school. He has an extent of 38 cents of property over which there is some proceeding pending before the Land Tribunal between the petitioner and her children on the one band and the respondent on the other. There is a bank deposit in his name the amount of which does not exceed Rs. 2,000/-. The respondent disputes that it is his money. He claims that his daughter's (by his first wife) remittance is kept in the bank for her benefit. The letters to prove that are also filed. The petitioner was found to be in a more affluent circumstance than the respondent. The petition was also found to have been filed for some ulterior purpose, which the Magistrate thought was not a matter which can be urged in a petition under S.488. The Magistrate concluded his judgment in the following words:

(3.) The petitioner's counsel contended that in a proceeding under S.488 the capacity of the wife to maintain herself is not a matter which can be taken into account by the Magistrate. No doubt, in considering whether a child should be given maintenance or not its capacity to maintain has to be looked into. So long as the marriage tie continues there is an obligation in the husband to maintain his wife and she will be disentitled for maintenance only on grounds mentioned in S.488(4). Therefore, the counsel contends that the learned Magistrate went wrong in considering the means of the petitioner and refusing to order maintenance on a comparative assessment of the respective means of the petitioner and the respondent. Apparently this contention is right going by the wording of the first part of S.488 alone. But, S.488 when read along with S.489 makes the position different. S.488, 489 and 490 in Chap.36 of the Criminal Procedure Code are enacted for a social purpose namely to prevent vagrancy and to give urgent relief by providing a duty on the husband or father to maintain the wife or child. Under S.489 if there is a change of circumstances to either the receiving or paying party, the Magistrate can by order alter the monthly allowance which he ordered under the earlier Section. The expression "alteration" has been understood in decided cases to include a power to even cancel. A bare reading of the section shows that the change of circumstances referred to therein of the receiving party which may enable the Magistrate to decrease the maintenance already ordered can be a change in the pecuniary circumstances of the receiving party. Of course, that is not the only change that Ss recognised. A change of the status of the parties also will no doubt be a relevant factor see the decisions reported in In the Matter of the petition of Din Muhammad (ILR 5 Allahabad 226) where a change in pecuniary circumstances alone was recognised and the decision In re Mohamed Rahimullah ( AIR 1947 Mad. 461 ) and Meenakshi v. Karuppanna ( AIR 1925 Mad. 491 ) where a change in the pecuniary circumstance and also the status of the parties was recognised. If a change in the pecuniary circumstances of the parties subsequent to the passing of the order is a matter which can be taken into account by the Magistrate to reduce the maintenance, it appears to us that the pecuniary position of the parties is a matter which the Magistrate can take into account even at the initial stage of passing the order for maintenance, though S.488 is silent on this aspect. S.488 gives a discretionary power to the Magistrate to order maintenance. As stated earlier, that is a section the purpose of which is mainly to prevent vagrancy by making the husband or the father responsible to maintain the wife or child. (See Jagir Kaur & Another v. Jaswant Singh (1963 SC 1521) and S. Sethurathinem Pillai v. Barbara ( 1971 (3) SCC 923 ). Whether the case is filed for that purpose or for any other has to be incidentally looked in to by the Magistrate before the discretion is exercised. The discretion must be exercised judicially and not capriciously. Our view that the power is discretionary is supported by the decisions in Gantapalli Appalamma v. Gantapallt Yellayya ( ILR 20 Mad. 470 ) and Ponnayee v. Periya Mooppan ( ILR 31 Mad. 185 ).