(MRS ) M BULTEEL Vs. (MR) RCBULTEEL

JUDGEMENT

(1.) The petitioner was married to the respondent in the Nilgiris on the 23 April, 1932, and lived with him as his wife until February, 1936. A daughter was born of the marriage. In February, 1936, the respondent left India for England and has not returned to India. He has neglected to provide for the maintenance of his wife and child and on the 6 July, 1937, the petitioner was compelled to file an application in the Court of the District Magistrate of the Nilgiris at Ootacamund for an order directing the respondent to pay a monthly sum for their maintenance. The amount asked for was Rs. 350 per mensem. The petitioner also asked that steps be taken under the Maintenance Orders Enforcements Act, 1921, with a view to the Magistrate's order being confirmed by the proper authority in England.

(2.) The application was dealt with by the Magistrate on the date of filing. He held that inasmuch as the petitioner had asked for an order for a sum of Rs. 350 he had no jurisdiction to hear the application, and dismissed it, notwithstanding that the prayer in the petition was for a sum of Rs. 350 per mensem, or such other sum as the Court might deem fit. It is not surprising that an application for revision of this order was filed in this Court. The revision application came before Newsam, J., on the 15 October, 1937. The learned Judge granted it and directed the Magistrate to dispose of the application on its merits. In the course of his order the learned Judge expressed the opinion that the Magistrate had no power to pass an order, for more than Rs. 100 for the maintenance of both the mother and the daughter. He refused to accept the decision of Devadoss, J., in Kent V/s. Kent (1925) 49 M.L.J. 355 : I.L.R. 49 Mad. 891 and that of the Calcutta High Court in Tulsi Das Burman V/s. Sm. Saraju Dei Devi (1933) 37 C.W.N. 655. The order of Newsam, J., having been transmitted to the District Magistrate, an order for the payment of Rs. 100 per mensem for the maintenance of the wife and daughter was passed against the respondent on the 13 November, 1937. The petitioner now asks for revision of that order.

(3.) The petitioner says that Newsam, J., misinterpreted the section and should have held that the District Magistrate had power to pass an order directing the respondent to pay Rs. 100 per mensem for the maintenance of the petitioner and Rs. 100 for the maintenance of the daughter. We consider that this contention is well founded. Section 488(1) of the Criminal Procedure Code reads as follows: If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or illegitimate child unable to maintain itself, the District Magistrate, a Presidency Magistrate, a Sub-divisional Magistrate or a Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make a monthly allowance for the maintenance of his wife or such child, at such monthly rate, not exceeding one hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate from time to time directs.