BAI PRABHAVATI SUMATILAL DHOLIDAS Vs. SUMATILAL DHOLIDAS

JUDGEMENT

(1.) THIS reference which has been made to us by the Additional Sessions Judge, Ahmedabad, arises out of an application made by a wife for maintenance against her husband under s. 488 of the Code of Criminal Procedure. The application was for the maintenance of herself, a daughter and a son. The learned Magistrate who heard the application was of the opinion that on merits a sum of Rs. 100 should be awarded to the wife and Bs. 70 to the two children. But he felt bound by the decision of this Court reported in -- 'palmerino v. Falme-rino', AIR 1927 Bom 46 (A) and therefore he awarded a sum of Rs. 100 in respect of all the three. When the matter came before the learned Additional Sessions Judge, he felt that the decision of this Court should be reconsidered in view of the fact that the other High Courts had taken a contrary view. He thereupon made this reference.

(2.) NOW, Mr. Thakor for the husband has raised a preliminary point that the learned Additional Sessions Judge should have followed the decision of this High Court and should not have made a reference. In our opinion, the learned Additional Sessions Judge has done the right thing in drawing our attention to the state of the law which results in great injustice being done, as has been done in this case by the order made by the learned Magistrate.

(3.) BEFORE we consider the authorities, let us consider the section itself. It is clear that s. 488 confers upon the wife and the child, legitimate or illegitimate, of a person who neglects or refuses to maintain the wife or the child, an independent right to obtain maintenance under the section, and it is equally clear that it imposes upon the person neglecting or refusing to maintain his wife or child: an independent obligation in respect of his wife and child. The jurisdiction of the Magistrate is to make a monthly allowance for the maintenance of the wife of the person or such child, at such monthly rate, not exceeding one hundred rupees in the whole. It is pertinent to note that the Legislature has used the expression "or" and not "and". Therefore, the jurisdiction of the Magistrate is with regard both to the wife or the child and the limit of his jurisdiction is to allow a maintenance and the monthly rate of that maintenance should not exceed one hundred rupees. The expression "hi the whole applies to the limit of the Magistrate's jurisdiction conferred with regard to the allowance of the maintenance, and in its context it can only mean that the Magistrate cannot allow anything more than one hundred rupees when he is fixing the maintenance of the wife or the child. He cannot, over and above one hundred rupees, allow anything else to the wife or the child either with regard to the medical expenses or education or anything else. The suggestion that the jurisdiction of the Magistrate is limited to allowing one hundred rupees in respect of maintenance of the wife and the children jointly is, in our opinion, an impossible construction once it is accepted that the right of the wife and of each child is an independent right. Such a construction would lead to extremely anomalous results. If, for instance, a wife applies for maintenance for herself and for her children and the Magistrate allows a maintenance of one hundred rupees, and if thereafter an illegitimate child were to come forward and to make an application for maintenance, the Magistrate having allowed an allowance to her up to the maximum of his jurisdiction would be prevented from making any order in favour of the illegitimate child. Or, a man may have more than one wife and he may have children by each one of the wives. If the suggestion is that maintenance can be allowed in a compendious application to be made and such maintenance cannot exceed one hundred rupees for all the persons applying for maintenance, then in a conceivable case a wife or a child my be deprived of maintenance altogether under the section. The intention of the Legislature was clear, and the intention was to cast, an obligation upon a person who neglects or refuses to maintain his wife or children to carry out his obligation towards his wife or children. The obligation is separate and independent in relation to each one of the persons whom he is bound in law to maintain. It is futile to suggest that in using the expression "in the whole" the Legislature was limiting the jurisdiction of the Magistrate to passing an order in respect of all the persons whom he is bound to maintain allowing them maintenance not exceeding a sum of one hundred rupees. The construction which has been urged before us by Mr. Thakor on behalf of the husband in this case receives some support from the decision of a division bench of this court reported in Talmerino v. Palmerino (A)'. In that case the Magistrate had made an order directing the husband to pay a monthly allowance of Rs. 150 for the maintenance of the wife and her child and this order was challenged before Mr. Justice Shah. At p. 47 Mr. Justice Shah observed: "in the present case the order of the Magistrate directing a monthly allowance of Bs. 150 per month was clearly in excess of his jurisdiction. "