DHIRAJLAL MAGANLAL DESAI Vs. KAMUBEN

JUDGEMENT

(1.) Dhirajlal Maganlal Desai applicant in this Revn. Application is the husband and opponent No. 1 Kamuben is the wife of applicant. Kamuben the wife filed an application being Criminal Miscellaneous Application No. 11 of 1968 in the Court of the Judicial Magistrate First Class Navsari praying for an order for maintenance in her favour in the amount of Rs. 150/per month alleging that the husband has refused or neglected to maintain her. In the proceeding before the learned Magistrate Kamuben examined herself at Ex. 3 and she examined two witnesses Arunkumar Exh. 12 and Babubhai Ex. 15. Her husband Dhirajlal gave his evidence at Exh. 16 and examined one Shankarbhai Dayalji Exh. 19 as his witness. The learned Magistrate was of the opinion that the present applicant husband has both refused and neglected to maintain his wife and after taking into consideration the evidence about the income of the husband he directed the present applicant to pay Rs. 60/per month by way of maintenance to opponent No. 1. The present applicant preferred Criminal Revision Application No. 6 of 1969 in the Court of Sessions Bulsar at Navsari. The learned Sessions Judge agreed with the finding of the learned Magistrate and dismissed the revision application. Present applicant has challenged the order passed against him awarding maintenance to opponent No. 1 in this Revision Application.

(2.) Mr. S. D. Shah learned Advocate who appeared for the applicant urged that before the learned Magistrate could exercise the jurisdiction vested in him under sec 488 he must come to an affirmative conclusion that the present applicant husband has either refused or neglected to maintain opponent No. 1 and must be further satisfied that the applicant husband is possessed of sufficient means. To use the words of Mr. Shah or neglect by husband and possession of sufficient means by the husband are the conditions precedent to the exercise of jurisdiction by the Magistrate under sec. 488 and until these two conditions are affirmatively satisfied the Magistrate has no jurisdiction to award maintenance under sec. 488. In the facts of this case it is not necessary to consider the first aspect namely whether the proof of refusal or neglect by the husband is a condition precedent to the exercise of jurisdiction under sec. 488 of the Criminal Procedure Code by the Magistrate before awarding maintenance to the wife or the illegitimate child who complained of refusal or neglect by the husband or the father of the illegitimate child though there is much to be said in favour of that contention. But there is concurrent finding of two Courts in this case that the present applicant has refused and neglected to maintain his wife and therefore even if it be held that the proof of refusal or neglect is a condition precedent to the exercise of jurisdiction by the Magistrate under sec. 488 the same is fully satisfied in this case. This finding is arrived at by both the Courts on appreciation of evidence recorded in the case and unless it is shown that the finding is perverse or is not supported by any evidence on record it must ordinarily be accepted.

(3.) Mr. Shah very strenuously urged that before the learned Magistrate can proceed to exercise jurisdiction under sec. 488 of the Criminal Procedure Code he must be satisfied that the person against. whom the order is sought to be made is a person having sufficient means. In other words Mr. Shah urged that the existence of sufficient means of the person against whom the order is to be made is a condition precedent to the exercise of jurisdiction by the Court under sec. 488. Mr. Shall urged that it is not every husband who is proved to have neglected or refused to maintain his wife is a person against whom all order Call be made. But such an order can only be made after the Court reaches an affirmative conclusion that he is a person who is possessed of sufficient means. It is not possible to accept this submission of Mr. Shall. The words having sufficient means in sub-sec. (i) of sec. 488 qualify the word person. In other words an order for maintenance can be made against the person. who has sufficient means and refuses or neglects to maintain his wife. The means or sufficiency thereof of the person against whom the proceedings are taken would have to be considered by the Court in order to arrive at the quantum of maintenance. In other words it will be a fact in issue as to what are the means of the person against whom the proceedings are taken. As a fact in issue it will have to be proved by leading evidence and being a fact in issue both the parties may lead evidence so that the Court on appreciation of evidence may reach an appropriate conclusion as to the quantum of maintenance to be awarded to the wife or illegitimate child. If there were any merit in the contention of Mr. Shah that the proof of sufficient means gives jurisdiction to the Magistrate to pass an order for maintenance it would defeat the very purpose for which a summary remedy is provided for in favour of neglected wife or illegitimate child. The person against whom proceedings are taken may come and say that he has no tangible means much less means which could be said to be sufficient and if that was a jurisdictional fact the proceedings will have to be dismissed. Looking to the language of sec. 488(2) this could not be the intention of the legislature. The means of the person against whom the order is to be made or sufficiency thereof plays an important part in determining the quantum of maintenance. But it has nothing to do with the jurisdiction of the Magistrate to pass an order for maintenance despite the fact that in a given case the man has no tangible means. It is from this approach that the doctrine of able bodied man was spelt out by the Courts. The decision in this respect worth referring to is in Re. Muni Kantivjayji 34 Bom. L. R. 587. In that case in response to the application made by the wife for maintenance her husband contended that he has become a Sadhu meaning thereby that he entered the holy order and consequently he incurred civil death in the social order to which he formerly belonged. It was urged that as a Sadhu he is prohibited from earning for his livelihood according to religious precepts and as he has no property or no income he cannot be fastened with the liability under sec. 488 to provide maintenance to his wife. Negativing this contention it was observed by Beamount C. J. as under :-