PURNASASHI DEVI Vs. NAGENDRA NATH BHATTACHARJYEE

JUDGEMENT

(1.) This reference was made by the Sessions Judge of Burdwan recommending that an order passed by the learned Magistrate, Asansol, directing payment of Rs. 60-8.0/- per month and 11 Sali Bhati rice and 2 Sali, of other variety of rice or its money equivalent per year to his wife Sm. Purnasashi Devi for her maintenance and the maintenance of his legitimate child by her should be set aside.

(2.) Three grounds have been put forward by the learned Judge for his recommendation. The first is that as the learned Magistrate was of the view that the maintenance had been paid but the rate was inadequate, it could not in law be said that the husband had neglected or refused to maintain his wife. In my judgment, this ground cannot prevail. When the law says "neglects or refuses to maintain", it cannot but mean "neglects or refuses to maintain properly." Suppose one rupee was paid for the maintenance of a wife for a month, that would be paying some amount of maintenance, but it would be ridiculous to suggest that that in such maintenance which would stand in the way of the operation of Section 488, Criminal P. C. In this case, the learned Magistrate found that the maintenance which had been given by the husband was inadequate. He had jurisdiction to pass proper order Under Section 488 (1), Criminal P. C.

(3.) The second ground is that "maintenance" includes food, clothing and lodging and it does not include cost of education. Even if the costs of education were left oat, it does not seem to me that the amount ordered by the learned Magistrate in this case could be considered to be too high. But I do not see why the cost of ordinary education should not in the case of a middle class family be considered to form part of maintenance. It may be that when the case of a person of the cultivator class is being considered, any education more than primary education should not be considered to form part of maintenance, but the case of middle class families is different. I am unable to agree with the learned Judge that in no case can maintenance be thought to include anything more than food, clothing and lodging.