BHAGAT RAM Vs. KAMLA DEVI

JUDGEMENT

(1.) Kamla Devi applied under Section 488, Criminal Procedure Code, against Bhagat Ram, her husband, claiming maintenance at the rate of Rs. 250/- per mensem on application of his ill-treatment, neglect and refusal to maintain her. The account was resisted by Bhagat Ram. Shri R.D. Sayal, Magistrate 1st Class, Jullundur, after recording the evidence and hearing the parties, found substance in the application and allowed her Rs. 100/- per mensem by way of maintenance, vide his order dated the 19th September, 1960. Bhagat Ram felt dissatisfied and filed a revision in the Court of Sessions. The learned Sessions Judge has recommended to this Court that the order of the learned Magistrate granting maintenance at the rate of Rs. 100/- per mensem should be set aside and in its place maintenance at the rate of Rs. 50/- per mensem be awarded, vide his order dated the 5th January, 1961. Lengthy arguments were advanced by the parties in this case. The learned counsel for Bhagat Ram cited Syed Ahmad v. N.P. Taj Begum, 1958 AIR(Mys) 128and submitted that while capacity to earn is good ground for providing maintenance at a minimum rate, actual earning is necessary to provide for a comparatively decent rate. He also submitted that in awarding maintenance the Court should see that the rate is not such as would tempt the wife to permanently live separately from her husband. The next case cited by him was Tak Chand Patabrai v. Kalavantibai,1941 AIR(Sind) 214

(2.) Where it has been laid down that in fixing the amount of maintenance under Section 488, Criminal Procedure Code, the Court must take into account the net wages of the husband and his other liabilities.

(3.) The counsel for Kamla Devi, on the other hand, relied on M. Ponnambalam v. Saraswathi, 1957 AIR(Mad) 693and submitted that the question of quantum of maintenance is also a matter for the discretion of quantum of maintenance is also a matter for the discretion of the trial Magistrate; because he has to take into consideration several factors, alike the status of the family, the earnings and the commitments and what is required by the wife to maintain herself. In regard to determining what is required by the wife to maintain herself, we have to steer clear of two extremes, viz.., we must not give maintenance which would keep her in luxury and would make judicial separation profitable and also impede any future reconciliation. We must also steer clear of the other extreme, viz., penuriousness. He also cited Kandaswami v. Angammal, 1960 AIR(Mad) 348which lays down that possession of property is not all the criterion for awarding maintenance under Section 486, Criminal Procedure Code. It is independent of possession of property. So long as a man is able-bodied and can work and earn his livelihood, it is his duty to support his wife. Therefore, notwithstanding the fact that a husband may be an insolvent or a professional beggar or a minor or is a sadhu or a monk, he must support his wife, so long as he is able-bodies and can make out his livelihood and support his wife. In fact even under the Hindu Law, the obligation which attaches from the moment of marriage, is independent of possession of property. He cited yet another case reported as Joginder Singh v. Raj Mohinder Kaur, 1960 AIR(P&H) 249and submitted that there is no rigid rule of law that the only right which a wife possesses under Section 488, Criminal Procedure Code, is to claim just subsistence allowance which should merely provide bare food, residence and that also only if and has no other means or source. But at the time of fixing quantum of maintenance the Courts must keep in mind the status of the parties, the capacity of the husband to earn and the property which he possesses. He also cited Ma E Mya v. U Ko Ko Gvi, 1937 AIR(Rang) 370which says that the fact of mentioning Rs. 100/- a month as the maximum amount of maintenance allowed show that Section 488 Criminal Procedure Code, does not contemplate a mere maintenance for food, clothing and lodging but the allowance is to the governed by other considerations. In awarding maintenance under Section 488, Magistrates must award a reasonable amount taking into consideration the means of the persons required to maintain the wife. Where the allowance is obviously grossly inadequate, High Court will interfere.