BHAGWAN DUTT versus KAMLA DEVI AND ANR.

BHAGWAN DUTT

KAMLA DEVI AND ANR;

October 17, 1974

[Y. V. CHANDRACHUD, R. S. SARKARIA AND

A. C. GUPTA, n.]

Code of Criminal Procedure (Act 5 of 1898) s. 488-Ma/ntenance to wife-Whether her income and means can be taken into account In fixing.

The separate income and means of the wife can be taken into account in deter-mining the amount of maintenance payable to her under s. 488, Criminal Procedure Code, 1898. [490 DJ

(1) (a) The section does not confer an absolute right on neglected wife to get an "rder of maintenance against the husband nor does it impose an absolute liability on the husband to support her in all circumstances. The use of the word 'may' in s. 488(1) indicates that the power conferred on the Magistrate is discro-tionary, thougl) the discretion must be exercised in judicial manner consistently with the language of the statute and with due regard to other relevant circumstances of the case. [ 486 B-DJ

(b) The object of Ss. 488 to 490 being to prevent vagrancy and destitution, the Magistrate Ii.as to find out what is required by the wife to maintain standard of living which is neither luxurious nor penurious, but is consistent with the status of the family, Such needs and requirements of the wife can be .fairly determined only if her separate income, also, is taken into account together·with the earnings of the husband and his commitments. [488 D-EJ

(c) The mere fact that the language of s. 488(1) does not expressly make the inability of wife to maintain herself condition precedent to the maintainability does not imply that while determining her claim and fixing the amount of mainto-nance, the Magistrate is debarred from taking into consid•rati 1n the wife's: own separate income or means of support. There is clear distii:ctfo 1 between wife's locus standi to file a.petition under the section and her being <ntitledto particular amount of maintenance. Even in the case of neglected child the proof of tho preliminary condition, namely, the inability to maintain itself, will only establish the child's competence to file the petition; but its entitlement to maintenance and . tho fixation of the amount would depend upon the discretion of the Magistrate. (485 B-D]

(cl) There is nothing in the sections to show that in determining the mainte· nance the Magistrate should take into account only the means of the husband and not the means of the wife. On the contrary, s. 489(1) provides that •on proof of change in the circumst1111ces of any person receiving under s. 488 monthly allQW· ance, the Magistrate may make such alteration in the allowance as he thinks flt;' and 'circumstances' must include financial ci.rcumstances. [488 E-G]

P. T. Ramankutty Achan v. Kalyanlkutty, A.I.R. 1971 Kerala 22, appreved.

Major Joginder Singh. v. Bivi Raj .Mohlnder Kaur, A.J.R. 1960, Punjab 249, and Nanak Chand Banarsl Das and Ors. v. Chander Klshore and Or1. A.I.R. 1969 Delhi 235. overruled.

(2) · Section 488, Cr.P.C., providei. summary remedy and is applicable to'. all persons belonging to all religions and has no·relationship with the personal law. of the parties It provides machinery for the summary enforcement of the mow obligation of man towards his wife and children. But s. 23 and other provisloD& of the Hindu Adoptions and Maintenance Act 1956, relating to fixation of the rate of allowance, provide for the enforcement of the rights of Hindu wives and depen-dents under their personal 111iv. There is no inconsistency between the 1956-Act Hi-M 255 Sup Cl/75

and s. 488, Cr. P.C. Both could stand together, and hence, there is no qiu:stion of s. 488 being partially repealed or modified by s. 23 of the 1956 Act. [490 A-Bl

Nanak Chand v. Shri Chandra Kishore Agarwal and Ors., [1970] 1 S.C.R .. 565, followed.

CR:MINAL APPELLATE JURISD:OTION: Criminal Appeal No. 228 of 1970.

Appeal by special leave from the judgment and Order dated the 30th April, 1970 of the Delhi High Court at New Delhi in Criminal Revision No. 90 of 1970.

D. N. Nijhawan, Urmila Kapoor and Kam!esh Bansal, for the appellant.

Sardar Bahadur Saharya, for the respondents.

The Judgment of the Court was delivered by

SARKAR!A J. Can the income of the wife be taken into account in determining the amount of maintenance payable to her under Section ~88 of the Code of Criminal Procedure, 1898? This is the pri11c:ipal question for determination in this appeal by special leave.

Respondent No. 1, Kamla Devi was married to the appellant Bhagwan Dutt on January 22, 1957 according .to Hindu rites. Out of this wedlock daughter, Respondent No. 2, was born on November 22, 1957. On October 18, 1966, Respondent No. 1 filed peti1tion against the appellant for judicial sepa:ration on the ground of desertion and cruelty. During the pendency of that petition, she filed an appli-cation under s. 488 of the Code of Criminal Procedure, 1898, in the court of the M1gistrate, 1st Class, Delhi, claiming maintenance for herself and for her minor daughter,. on the ground that th.e appellant had neglected and refused to maintain them. At the· date of, the application Respondent No. 1 was employed as stenographer on m1nthly 11alary of Rs. 600/··. The appellant was at that.time earning about Rs. 800/- per month. However, later on when the case was in the Sessions Court in revision, the monthly income of each of them had increa51ed by Rs. 150/-, approximately.

By his order dated June 6, 1969 the Magistrate directed the husband · to pay Rs. 250/-per month i.e. Rs.175/-forthewife and Rs. 75/-for tli.e child for their maintenance. While fixing the amount of maintellalllce for the wife, the Magistrate did not take into consideration her .own independent income.

Ag1inst the order of the Magistrate, the husband went in revision to the Court of Session. The Additional Sessions Judge was of the view that since the income of the wife was "substantial" and enough to m1intain herself", she was not entitled to any maintenance. He was further of the opinion that Rs: 75/- p.m. allowed to the child being inadequate, it deserved to be raised to Rs. 125/- p.m. for the period of the pendency of the application in the trial court and thereafter to R~. 150/- p,m. He referred the case to the High Court under s. 4·38 of the Code with recommendation 1hat the order of the Magistrate to the extent it allowed maintenance to the wife, be quashed, but the allowance of ilie child be enhanced as aforesaid,

learned single Judge of the High Court who heard the reference held that in "making an order for maintenance in favour of wife under s. 488 of the Code. of Criminal Procedure the court has not to take into consideration the personal income of the wife as section 488 does not contemplate such thing". He therefore declined the rcfe-~ence pro-tanto, but accepted the same in regard to the enhancement of the allowance of the child.

Aggrieved by the judgment of the High Court, the husband has now come in appeal before us.

The material part of Section 488 of the Criminal Procedure Code is in these terms :

"(l) If any person having sufficient means neglects or refuses to maintain his wife or his legitimate or iJ\egitimate child unable to maintain itself; the District Magistrate, Presi-dency Magistrate, Sub-Divisional Magistrate or Magis-trate of the first class may, upon proof of such neglect or refusal, order such person to make monthly allowance for the main-tenal}.ce of his wife or such child, at such monthly rate, not exceeding five 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.

(2) to (5)

The corresponding part of Section 125 in the new Criminal Procedure Code, 1973, which came into force on 1st April 1974, reads: , "125. If any person having sufficient means neglects or refuses refuses

"125. (I) If any person having sufficient means neglects or refuses to maintain-

( a) his wife, unable to maintain herself, or

(b) his legitimate or illegitimate minor child, whether married or not, unable to maintain itself, or

(c) his legitimate or illegitimate child (not being married daughter) who has attained majority , where such child is, by reason of any physical or mental abnormality or injury unable to maintain itself, or

(d) his father or mother, unable to maintain himself or herself.

Magistrate of the first class may, upon proof of such neglect or refusal, order such person to make monthly allowance for the maintenance of his wife, such child, father or mother, at such monthly r?.te not exceeding five hundred rupees in the whole, as such Magistrate thinks fit, and to pay the same to such person as the Magistrate may from time to time direct .... "

comparative study of the provisions set out above would show that while in Section 488 the' condition "unable to maintain itself"

apparently attached only to the child and not to the wife, in Section 125, this condition has been expre.ss!y made applicable to the case of wife. Does this recasting of the old provision signify any fundamental change in the law 7 Or, has this been done merely to clarify and make eiq>licit what was formerly implict ?

Section 488 does not confer an absolute right on neglected wife to get an order of maintenance against the husband nor does it impose an absolute liability on the husband to s~pport her in all circumstances, The use of the word "may" in Section 488(1) indicates that the power conferred on the Magistrate is discretionary. neglected wife, therefore, cannot, under this Section, claim, as of right, an order of maintenance against the husband. Of course, the Magistrate has to exercise his discretion in judicial manner consistently with the language of the statute with the regard to other relevant circumstances of the case. Nevertheless, the Magistrate has to exercise his discn:tion primarily towards the end which the Legislature had in view in enacting the provir,ion.Sections, 488, 489 and 490 constitute one family. They have been grouped together in Ch. XXXVI of the Code of 1898 under the caption, "Of the maintenance of wives and children". This Chapter, in the words of.Sir James Fitzstephen, provides" moqe of preventing vagrancy, or at least of preventing its consequences". These provisions are intended to fulfil social purpose. Their· object is to cpmpel man to perform the moral obligation which he owes to society in respect of his wife and children. Uy providing simple, speedy but limited relief, they seek to ensure that the neglected wife and children are· not left beggared and destituted on the scrap-heap of society and thereby driven to life: of vagrancy, immorality and crime for their subsistence. Thus, Section 488 is not intended to provide for full and j\nal determination of the status and personal rights cf the parties. The jurisdiction· conferred by the Section on the Magistrate is more in the nature of preventive, rather than remedial jurisdiction; it is certainly not punitive. As pointed out in Thompson's case(I) "the s<:ope of the Chapter XXXVI is limited and the M?.gistrate c?.nnrt, except as thereunder provide, usurp the jurisdiction in matrimonial disputes possessed by the Civil Courts". Sub-secti0n (2) of s. 489 expressly makes orders passed under Chapter XXXVI of the Code subject to any final adjudic'ltion that may be made by. civil . Court between the pa:rties regarding their status and civil rights.

The stage is now set for appreciating the contentions canvassed by tbe learned Counsel for the parties.

Mr. Nijhawan, learned Counsel for the appellant contends that ifs. 488(1) is construed in the light of its primary objrc:t imd the natu.re ofthejuri$diction conferred by it, together withs. 489(1), it WC1uld be am~IY clear that in determining the wife's claim to mairitenani:e and its quantum, her independent income is relavant cC1nsideraticn. In support of this contentio.n, Counsel has ieferred to Mohd. A.Ii v. Mt.

(1) 6 N.W.P. 20S.-

Sakina Begum(I) Narasimha Ayyar v. Rangathayammaf(2); Poonnab,/am · v . .Saraswathi(3),' Ahmed Ali Saheb v. Sarfarajulinisa Begum (4) and P. T. Ramankutty Achan v. Kalyanikutty(').

AB against the above, Mr. Sardar Bahadur Saharya maintains that the very fact that the Section does not make the inability of wife to maintain· herself, condition precedent to the grant of maintenance-as it does in the case of child-shows that the intention of the Legis-lature was that the wife's own income or means should not be taken in,t~ a~count either for determining her right to maintenance or for fixing its amount. It is further urged that the language ofs. 489 cannot be called in aid to construe s. 488 (1 ). Reliance for the main argument h!ls been placed on Major Joginder Singh v. Bibi Raj Mohinder Kaur.(6)

In Major Joginder Singh's case (supra), the wife had claimed maintenance under s. 488, Cr. P. C. both for herself and her minor son. The husband was Major in the army, getting Rs. 1070/· p.m. It is not very clear from the Report as to whether the wife was having any substantial income of her own. However, an argument was raised that she had her own means of support which should be taken into account for determining her right to maintenance.

The learned Judge who decided the case, negatived the contention, thus : ·

"It is obvious from the language of the section that in order to enable child to cfaim maintenance it has to be proved that the child 'is unable to maintain itself'. No such condition has been imposed in the case of ·wife. Cases in which maintenance was refused to the wif~ merely on the ground that she was in position to maintain herself have; in my view, omitted to consider the implication of this distinction while construing the scope and effoct of s. 488. In my opinion, the ability of the wife to maintain herself was not intended by the legislature to deprive her of the right of maintenance conferred by this section, if she is otherwise found entitled to it.." Commenting on the cases cited before him, the learned Judge further observed :

"But if those authorities intend to lay down any rigid rule of law that the only right which a. wife possesses un~er s. 488, Cr.P.C., is to claim just subsistence allowance which should merely provide bare food, residence and raiment and that a!so only if she has no other means· or source, then I must with respect, record my enphatic dissent."

It may be noted that the above principle spelled out from the in· terpretation of s. 488(1) in Major· Joginder Singh's case (supra), .

(2). A.I.R. 1947 Mad. 204. (4) A.I.R. m2 Hyd. 76 (6) A.I.R. 1960 Pulliab 249.

(1) A.I.R. 1944 Lah. 394. (3) A.I.R. 19S7 Mad. 693, CS) AJ.R. 1971 Kerala 22,

was carried step further by the Division Bench in Nanak Chand Ba11arsi Dass and ors. v. Chander Kishore and Ors.(l) to deduce the pro-position that the wife's right to receive maintenance under s. 488, Criminal Procedure Code is an absolute right.

In our opinion, one wrong assumption has led to another false deduction. The· mere fact that the language of s. 488(1) does not expressly make the inability of wife to maintain herself condition precedent to the maintainability of her petition, does not imply that while determining her claim and fixing the amount of maintenance, the Magistrate is debarred from taking into consideration the wife's own separate income or means of support. There is clear distinction between wife's locus standi, to file petition under s. 488 and hc:r being entitled, on merits, to particular amount of maintenance thereunder. This distinc:tion appears to have been overlooked in Major Jogi11der Sing/i's case (supra).. Proof of the preliminary condition att.ached to neglected child will establish only his competence to file the petition but his entitlement to maintena-nce, particularly the fixation of its amount, will still depend upon the discretion of the Magistrate. As the Magistrate is required to exercise that discretion in just manner, the income of the wife, also, must be put in the scales of justice as against the means of the husband.

The object of those provisions being to prevent vagrancy and destitution, the Magistrat1: has to find out as to what is required by the wife to maintain standard of living which is neither luxurious nor penurious, but is modestly consistent with the status of the family. The needs and requirements of the wife for such moderate livin1g can be fairly det1:rmined, only if her separate income, also, is taken into account together with the earnings of the husband and his commit· men ts.

There is nothing in these provisions to show that in determining the maintenance and its rate, the Magistrate has to inquire into the means of the husband alone, and exclude the means of the wife altogether from consideration. Rather, there is definite indication in the language of the associate s. 489(1) that the financial resources of the wife are also relevant consideration in making such deterknation. Section 489(1) provides inter alia, that "on proof of change in the circumstances of any person receiving under s. 488 monthly allowance, the Magistrate, may make such alteration in the allowal).ce as he thinks fit". The "circumstances" contemplated by s. 489(1) must include financial circumstances and in that view, the inquiry as to the change in the circumstances must extend to change in the financial circumstances of the wife.

Keeping in view the object, scheme, setting and the language of these associate provisions in Chapter XXXVI, it seems to us clear that in determining the amount of maintenance under s. 488(1), the Magistrate is competent fo take into consideration the separate i1icome and means of the wife.

(!) A.J.R. 1969 Delhi 235.

We do not wish to burden this judgment with discussion of all the decisions that have been cited at the Bar. It will suffice to notice one of them rendered by the Kerala High Court in which Major Joginder · Sing/r's case (supra) was explained and distinguished. That case. in P. T. Ramankutti v. Kalyankutty (supra) therein, the husband was getting net salary of Rs. 240/-, while the monthly salary of the wife was (after deductions) Rs. 210/-. The questfon, was whether the wife in such a· financial position had a_right to claim maintenance under s.488, Criminal Procedure Code. after referring to the observations of Dua, J. in Major Joginder Singh's case (supra) and surveying the case law on the subject, the learned single Judge of the Kerala High Court correctly summed up the position thus ;

"To take the view that in granting maintenance. under Sec-c tion 488 to wife her personal income also can be considered may primaJacie ap_pear to be against the language of the section because the condition· "unable to maintain itself" appearing therein attaches itself cinly to child and not to wife. But that condition has application only in considering the ·maintainability of petition filed under s.488. wife can file petition under that section irrespective of the question whether she is able or unable to maintain herself. But on her application at the time of the granting of monthly allowance to her there is nothing prohi-biting the Court from considering whether she can maintain her-self with her own income and if she can, granting her nothing by way .of allowance."

Any other .construction would be subversive of the primary purpose of the section and encourage vindictive wives having ample income and means of their own, to misuse the section as punitive weapon against their husbands.

It is next contended on behalf of the appellant that s. 488 must be deemed to have lieen partially repealed and modified by· s. 23 of the Hindu Adoptions and Maintenance Act, 1956 (for short, called the Act) which provides that in determining the amount of maintenance, the Court shall have, inter alia, regard "to the value of the wife's property and any income derived from such property or from the claimant's own earning or from other sources",

Clause (b)ofs.4 of that Act provides:

"Save as otherwise expressly provided in this Act -(a) X X X (b) any other law in force immediately before the commencement of this Act shall cease to apply to Hindus in so far as it is in-consistent with any of the provisions contained in this Act."

The question therefore resolves itself into the issue : whether there is any thing in s. 488 which is inconsistent with s.23 or any other provi· sions of the Act. This matter is no longer res integra. In Nanak Chandv. Shri Chandra Kishore Agarwala and Ors.(1) this Court held that there is no inconsistency between Act 78of1956 ands. 488, Criminal Procedure

Code. Both bould stand together. The Act of 1956 is an .Act to amend and codify the law relating tO adoption and maintenance among Hindus. The law was substantially similar before when it was never suggested that there was any inconsistency with s. 488, Cr. P. C. The scope of the two laws is different. Section 488 provides summary remedy and is applicable to all persons belonging to all religions and has no relationship with the personal law of the parties.

We have s1lid and it needs to be said again, thats. 488 is intended t<1 serve social purpose. It provides machinery for summary enforce·· ment of the moral obligations ofa man towards his wife and childre11 so that they may not, out of sheer destitution become hazard to the: well-being of orderly society. As against this, s. 23 and other provi· sions of the Act relating tG fixation of the rate of allowance, provide fo1r the enforcement of the rights of Hindu wives ot dependents under thei1r personal law. This contention therefor1: is meritless and we negativi: the same.

For the reasons afores&id,. we allow the appeal, set aside the judg· ment of the High Court and send the case back to the trial Magistrat1: to refix the amounts of maintenance. In the case of the wife, he shall together with other relevant circumstances, take into account her incom1l also. In the case of the d~ughtcr, he shall afford opportunity to th1' parties to leacHresh evidenc:e an1d then refix her allowance.

Appeal allowerl.