AMEENA UMMA Vs. MUHAMMED

JUDGEMENT

(1.) THE petitioner is a Mohammadan woman, who had applied for maintenance under S. 488 Cr. P, C. for herself and two minor children born of the respondent. THE fact that she is the wife and the children are born to her of the respondent is not now in dispute. THE learned Magistrate also has entered the finding that the petitioner is entitled to maintenance; but the petition was dismissed on the ground that the petitioner did not succeed in proving the means of the respondent. THE learned Magistrate would observe: "i find that there is no evidence in the case what exactly is the income of means of the respondent. THE only alternative under the circumstances is to dismiss the petition. " THE learned Magistrate is clearly in error in having dismissed the petition. Even about the means, it is not quite correct to say that there is no evidence. THE petitioner has stated that the respondent is getting income from immovable properties; but she was not able to give the exact extent of the properties, possessed by him. That apart, possession of property is not at all material for awarding maintenance under S. 488. THE duty cast upon the husband to maintain his wife and children is independent of possession of property. THE Madras High Court under similar circumstances has observed as follows in Kandaswami Moopan v. Angammal (AIR. 1960 Mad. 348): "so long as a man is able-bodied and can work and earn his livelihood, it is his duty to support his wife. THErefore, our courts have gone to the extent of laying down that. not with standing the fact that a husband may be an insolvent or a professional beggar or a minor is a Sadhu or a monk, he must support his wife. so long as he is able-bodied and can make out his livelihood and support his wife. In fact, in one case which was argued before the Bombay High Court, when a man pleaded that he entered the holy orders the Bombay High Court said that in such a case he should doff off his orange robes and get employed and earn money in order to support his wife and children. " I am in full agreement with the above observations of the learned judge.

(2.) IN the present case the question was not approached in the background mentioned in the above decision. The Court must apply its mind to all circumstances bearing on the question; not only whether the person is possessed of immovable property; but whether he is in a fit position to work and find means to maintain his wife and children. IN this case there is the additional factor, viz. , that the fact is not disputed before me that the respondent has taken another wife after divorcing the petitioner. IN the circumstances, I would set aside the order and send the case back for an enquiry being conducted as to the capacity of the man to maintain his wife and children. The learned magistrate will take evidence adduced by both parties and enter his finding also as to the quantum of maintenance to be fixed for the wife and children. . .