TULSI DAS BARMAN Vs. SRIMATI SARAJU DEI DEVI

JUDGEMENT

(1.) The only point on which we think it necessary to come to a final decision is that raised by the first ground upon which the Rule was issued. It appears that the first opposite party, Srimati Saraju Dei Devi applied under Section 488 of the Criminal Procedure Code for an order that her husband should be directed to make a monthly allowance to her and to her minor children. The Magistrate having taken the circumstances of the case into consideration has ordered the petitioner to make a monthly allowance of Es. 100 for the maintenance of the lady and a monthly allowance of Rs. 30 in respect of each of five minor children. He has thus been ordered to pay to a total monthly allowance of Rs. 250. The petitioner submits that this order is illegal; and he relies on the fact that the section limits the power of court to ordering a monthly allowance at a rate not exceeding Es 100 in the whole. According lo the petitioner, this means that however many dependants a person is neglecting to maintain he cannot, under the Code, be ordered to make as a monthly allowance for their support a total sum more than Rs. 100. For this Mr. Chatterjee for the petitioner has relied on an unreported judgment of Mr. Justice Jack Sitting Singly in Criminal Revision No. 220 of 1932.

(2.) It is clear that in that case the attention of the court was not drawn to the case of E.C. Kent V/s. E.L. Kent 90 Ind. Cas. 669 : 49 M.L.J. 335 : 26 Cr. L.J. 1597 : A.I.R. 1926 Mad. 59 where the point was raised and decided by Mr. Justice Devadoss in a sense contrary to the opinion expressed by Mr. Justice Jack. Both the decisions are of Judges sitting singly and neither of them is binding upon us. I certainly prefer the decision of Mr. Justice Devadoss which is to the effect that the words in the whole in the Section do not mean that Rs. 100 is the maximum limit for all the dependants together, but means for all kinds of maintenance for each dependant. The judgment examines the result which will follow if the construction for which Mr. Chatterjee argues is the correct one. I need not elaborate them here. But it is sufficient to say that in my judgment the words in the whole are intended to prevent the court from exceeding the statutory limit in the case of any particular dependant and are not intended to restrict the powers of the court to ordering a monthly allowance of Rs. 100 inspect of the maintenance of all the dependants. That being so, we are not prepared to vary the order of the Magistrate on the first ground mentioned in the petition.

(3.) With regard to the merits, it appears to me that the most important question is whether the estate out of which, it is suggested, the petitioner should pay the maintenance ordered is secular or debuttar. That is not a question which can satisfactorily be decided by us, and in addition to this, it is a question which is in issue in at least one suit now pending between the parties. It is for the petitioner, if there is any foundation for his suggestion as to the character of the property, to have the civil proceedings expedited and, if he obtains a decision in his favour, to apply to the Magistrate to vary the maintenance order. Although the order was made on the 29 of March, 1932, nothing has been recovered under it and its execution was stayed when the Rule was granted. We are of opinion that this stay order should not be allowed to remain in operation, except to a limited extent with regard to the arrears of maintenance. We, therefore, discharge the Rule and vacate the stay order except to this extent, namely, that it is stayed with regard to the arrears of maintenance due under the order up till the 1 of January, 1933, and we uphold the order of maintenance at the rate of Rs. 250 a month If the opposite parties are successful in the civil proceedings, it will be for them to apply for leave to execute the maintenance order in respect of the arrears mentioned above.