KALURAM Vs. EMPEROR

JUDGEMENT

(1.) 1. The Honorary Bench Magistrates of Hoshangabad in an application made under Section 488, Criminal P. C., have awarded a wife maintenance under that section at the rate of four kuros of grain a month and Rs. 12 annually for clothes. The case has been referred by the Additional Sessions Judge, Hoshangabad, on the ground that such an order is illegal. The learned Additional Sessions Judge also considers that it does not appear from the proceedings whether the wife has any just ground of living separate from her husband and that on this ground also the order is not justified. On the latter ground there is sufficient evidence that the wife has been ill-treated by her husband and that the husband's offer to take her back into his house is disingenuous and made only for the purpose of resisting her claim to maintenance. The claim to live separately and to be maintained is justified. The order however is a bad one in fixing maintenance on a mixed basis of cash and grain. It is clear from the wording of Section 488(1), Criminal P. C., that the allowance to be made is one in cash only. The essential words are: Upon proof of such neglect or refusal, the Magistrate may order such person to make a monthly allowance for the maintenance of his wife at such monthly rate, not exceeding one hundred rupees, as the Magistrate thinks fit.

(2.) IT is impossible to read into these words any other meaning that the allowance shall be made in cash and not in kind whether of grain or clothing. It has been urged that as grain is a constant and the price of grain has fluctuated considerably of late years that an allowance of grain is a more sensible solution of the problem of maintenance than an allowance in cash. In certain circumstances this may be so, but the law does not allow it. Assuming that an allowance in grain were given approximating in value to Rs. 100, which is the maximum permissible under the section, a fluctuation in the price might well for a particular month cause the value of the grain for that month to exceed Rs. 100 and contravene the section. Further the order would be bad even if it were permissible to allow payment in grain since the kind of grain was not specified in the order. The wife might expect payment in wheat, and the Court may have intended that the payment should be in wheat, but the husband, according to the terms of the order, would be justified in paying in juar or one of the cheaper millets. The order in so far as it relates to the payment in grain is set aside and the case will be returned to the Court of the Bench Magistrate for the passing of a legal order.