WUDALI GANGAMMA Vs. WUDALI SUBBARAYUDU

JUDGEMENT

(1.) The petitioner claimed maintenance from her husband in 1948 and filed an application under Section 488 of the Code of Criminal Procedure. The respondent who is her husband was drawing a salary of Rs. 124.00 per mensem in 1948 when the monthly allowance payable to the petitioner was fixed at Rs. 35.00 per mensem. The respondent was a teacher and seems to have risen to the post of Principal of a High School in Secunderabad in 1958, The petitioner thereupon filed an application under Section 489 Cr. P. C., for alteration of the monthly allowance payable to her on the ground that there has been a change in the circumstances of her husband and that she is therefore entitled to enhanced allowance.

(2.) The Judicial 1st Class Magistrate, Kurnool, found that it is common ground that the respondent is now earning Rs. 470.00 p.m., and that when the order of allowance was made in 1948 the salary of the respondent was only Rs. 124.00 p.m. It was also found that the respondent has been living alone even from the time the petitioner remained away from him. Thus the respondent is not burdened with more responsibility in his household affairs, but he may have no doubt to keep up his position as a Head Master or Principal of the High School. Nevertheless, even having regard to this factor, the learned Judicial 1st Class Magistrate came to the conclusion that this is a case where the petitioner would be entitled to enhanced monthly allowance. In arriving at the figure regarding the enchanced allowance, the learned Magistrate thought that he was constrained to conform to an observation in the Cr. P. C. by Chitaley and Annaji Rao contained in Note 19 of Section 488. Quoting the passage that Section 488 Cr. P. C. intends to provide only against starvation and consequent vagrancy and it is not the intendment of the Legislature to provide anything more than maintenance i.e. food, clothing and residence, he found that Rs. 20.00 per mensem is necessary for the petitioner to secure a room for residence in Madras besides a bare minimum of Rs. 40.00 for monthly food of the petitioner together with an aggregate sum of Rs. 100.00 per year for clothing, etc. On this basis, he arrived at the conclusion, that a minimum amount of Rs. 70.00 is required by the petitioner and therefore enhanced the allowancee only to Rs. 70.00 per month. As against this decision of the learned Magistrate, a revision petition was filed before the Sessions Court, Kurnool. The learned Sessions Judge merely observed that the lower court has taken into consideration the change of circumstances viz., the rise in the cost of living index and the loss of family support which the petitioner sustained by reason of her having to live apart from her father as her father is now dead and in that view he dismised the revision petition. This is a further, revision petition in those circumstances by the wife.

(3.) Mr. Alladi Kuppuswamy for the petitioner contended that the outlook of the Magistrate in determining the enhancement of the allowance-permissible under Section489 Cr. P. C., should not be confined to finding out with reference to the index of prices or with the notional cost of living and awarding only the minimum as allowance, but Section489 Cr. P. C. contemplates the discerning of the ambit of the change in the circumstances of the wife us well as the husband and further he argued that the increase in the monthly rate raised to Rs. 500.00 by reason of the amendment of this Section by Act XXVI of 1955 should be taken to give greater latitude to provide convenient allowances. In other words, the point that is sought to be made is the allowance that is contemplated under Section488 Cr. P. C., to a wife is not the bare minimum sustenance allowance but a convenient provision in consonance with what the husband can afford as also what the wife requires in the circumstances and as adjustment with reference to the change of circumstances is contemplated, it is not the meeting of mere wants by way of subsistence that is meant by the Legislature. The argument put that way, to my mind, has something to be said in its favour. It is no doubt true that having regard to the principle that a husband is bound to maintain his wife whatever might be his means of income, the provision to be made to the wife must necessarily depend upon her needs for sustenance in such a case. Courts therefore would not ordinarily violate this rule especially in cases where overlooking this rule would work hardship on the wife. But to insist upon conformance to this rule in cases where the husband is in affluent circumstances or becomes so later than the provision for maintenance was made under Section 488 Cr. P. C., would be not only inequitable but unjustified especially in view of the fact that the discretion of the Court in awarding maintenance is wide enough and can be exercised by fixing up to a figure not exceeding Rs. 500.00 suiting the occasion as well as the status of the spouses concerned. Then again, if what is contemplated by Section489 Cr. P. C. is only the revision of the allowances having regard to the alteration in prices of food, clothing and residence, one would find the mention of this specially in that section. On the other hand, we find specific absence of such a restriction or non-mention of any such limitation. That Section contemplates an increase in the monthly rate of allowance