THANKAPPAN ASARI Vs. PANKAJAKSHI

JUDGEMENT

(1.) This is to revise an order passed by the First Class Magistrate at Punaloor, under S.488 Crl. P. C., awarding maintenance to the wife and child of the revision petitioner, who may be referred to as the petitioner. The first point taken before me, that the wife had no justification to live separately from the petitioner, cannot be sustained, in view of the finding of fact based upon her testimony, that she had been subjected to cruel treatment by him.

(2.) The second point taken was, that the direction to the petitioner in the order sought to be revised, to pay a sum of Rs. 100/- in lieu of arrears of maintenance from the date of the petition till the date of the order, is opposed to the provisions of S.488 Crl. P. C. The petition for maintenance was filed on the 31st January, 1956, and the order was passed by the Magistrate on the 14th February, 1958. In making the direction aforesaid, the learned Magistrate expressed himself in these terms:-

(3.) On the true construction of the relevant part of the order extracted above, I have no doubt, that the award of Rs. 100/- was towards the maintenance of the petitioners wife and child, and not of the child only, in conformity with the prayer in the petition for maintenance. A joint award is not within the contemplation of S.488, sub-s.(1), which empowers the Magistrate to order the husband to make a monthly allowance for the maintenance of his wife or such child at such monthly rate. A joint award also appears to be against the scheme and intendment of S.489 Crl. P. C., which provides for an alteration in the allowance, according to altered circumstances, which may not always be the same, but may vary for the wife and the child. In Hazard Singh v. Mt. Sant Kaur, AIR 1957 Pepsu 24, a joint award to the wife and two children at Rs. 25/- per mensem, was held to be illegal; nevertheless, in revision, the High Court invoked its inherent power under S.561-A and apportioned the award between the wife and the children, fixing the rates at Rs. 15/- for the wife, and at Rs. 5/ - for each of the children.