PETITIONER: BHAGWAN DUTT Vs. RESPONDENT: KAMLA DEVI AND ANR. DATE OF JUDGMENT17/10/1974 BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH CHANDRACHUD, Y.V. GUPTA, A.C. CITATION: 1975 AIR 83 1975 SCR (2) 483 1975 SCC (2) 386 CITATOR INFO : R 1986 SC 984 (5) R 1987 SC1100 (5) ACT: Code of Criminal Procedure (Act 5 of 1898) s. 488- Maintenance to wife Whether her income and means can be taken into account in fixing. HEADNOTE: The separate income and means of the wife can be taken into account in determining the amount of maintenance payable to her under s. 488, Criminal Procedure Code, 1898. [490 D] (1)(a) The section does not confer an absolute right on a neglected wife to get an order 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 discretionary, though the discretion must be exercised in a judicial manner consistently with the language of the statute and with due regard to other relevant circumstances of the case. [486 B-I] (b)The object of Ss. 488 to 490 being to prevent vagrancy and destitution, the Magistrate has to find out what is required by the wife to maintain a 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 Ms commitments. [488 D-E] (c)The mere fact that the language of s. 488(1) does not expressly make the inability of a wife to maintain herself a- condition precedent to the maintainability 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 a clear distinction between a wife's locus standi to file a petition under the section and her being (entitled to a particular amount of maintenance. Even in the case of a neglected child the proof of the 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 the fixation of the amount would depend upon the discretion of the Magistrate. [485 B-D] (d)There is nothing in the sections to show that in determining the maintenance 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 a change in the circumstances of any person receiving under s. 488 a monthly allowance, the Magistrate may make such alteration in the allowance as he thinks fit;' and 'circumstances' must include financial circumstances. [488 E-G] P. T. Ramankutty Achan v. Kalyanikutty, A.I.R. 1971 Kerala 22, approved. Major Joginder Singh. v. Bivi Raj Mohinder Kaur, A.I.R. 1960, Punjab 249, and Nanak Chand Banarsi Das and Ors. v. Chander Kishore and Ors. A.I.R. 1969 Delhi 235. overruled. (2)Section 488, Cr.P.C., provides a 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 a machinery for the summary enforcement of the moral obligation of a man towards his wife and children. But s. 23 and other provisions 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 dependents under their personal law. There is no inconsistency between the 1956-Act 16-M 255 Sup CI/75 484 and s. 488, Cr. P.C. Both could stand together, and hence, there is no question of s. 488 being partially repealed or modified by s. 23 of the 1956 Act. [490 A-B] Manak Chand v. Shri Chandra Kishore Agarwal and Ors., [1970] 1 S.C.R. 565, followed. JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: 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 Kamlesh Bansal, for the
appellant.
Sardar Bahadur Saharya, for the respondents.
The Judgment of the Court was delivered by
SARKAR Can the income of the wife be taken into account in
determining the amount of maintenance payable to her under
Section 488 of the Code of Criminal Procedure, 1898 ? This
is the principal 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 a daughter, Respondent No. 2, was born
on November 22, 1957. On October 18, 1966, Respondent No. 1
filed a petition against the appellant for judicial
separation on the ground of desertion and cruelty. During
the pendency of that petition, she filed all application
under s. 488 of the Code of Criminal Procedure, 1898, in the
court of the Magistrate, 1st Class, Delhi, claiming
maintenance for herself and for her minor daughter, on the
ground that the appellant had neglected and refused to
maintain them. At the date of the application Respondent
No. 1 was employed as a stenographer on a monthly salary 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 increased by Rs. 1501-, approximately.
By his order dated June 6,1969 the Magistrate directed the
husband to pay Rs. 250/- per month i.e. Rs. 175/- for the
wife and Rs. 75/- for the child for their maintenance.
While fixing the amount of maintenance for the wife, the
Magistrate did not take into consideration her own
independent income.
Against 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 maintain 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 Rs. 150/- p.m. He referred the case to the
High Court under s. 438 of the Code with a recommendation
that the order of the Magistrate to the extent it allowed
maintenance to the wife, be quashed, but the allowance of
the child be enhanced as aforesaid.
485
A learned single Judge of the High Court who heard the
reference held that in “making an order for maintenance in
favour of a 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 a thing”. He therefore declined the refe-
rence 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:
“(1) 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 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 1 st April 1974, reads:
“125. (1) 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 a 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.
a Magistrate of the first class may, upon
proof of a such neglect or refusal, order such
person to make a monthly allowance for the
maintenance of his wife, such child, father or
mother, 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 may from time to
time direct……”
A comparative study of the provisions set out above would
show that while in Section 488 the condition “unable to
maintain itself”
486
apparently attached only to the child and not to the wife,
in Section 125, this condition has been expressly made
applicable to the case of wife. Does this recasting of the
old provision signify ally fundamental change in the law?
Or, has this been done merely to clarify and make explicit
what was formerly implict ?
Section 488 does not confer an absolute right on a neglected
wife to get an order 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 Section 488(1) indicates that the power conferred on the
Magistrate is discretionary. A 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 a 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 discretion
primarily towards the end which the Legislature had in view
in enacting the provision.
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 ” a mode of preventing vagrancy, or at
least of preventing its consequences”. These provisions are
intended to fulfil a social purpose. Their object is to
compel a man to perform the moral obligation which he owes
to society in respect of his wife and children. By
providing a 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 a life of vagrancy, immorality and crime
for their subsistence. Thus, S-section 488 is not intended
to provide for a full and final determination of the status
and personal rights of the parties. The jurisdiction
conferred by the Section on the Magistrate is more in the
nature of a preventive, rather than a remedial jurisdiction;
it is certainly not punitive. As pointed out in Thompson’s
case(1) “the scope of the Chapter XXXVI is limited and the
Magistrate cannot, except as thereunder provide, usurp the
jurisdiction in matrimonial disputes possessed by the Civil
Courts”. Sub-section (2) of s. 489 expressly makes orders
passed under Chapter XXXVI of the Code subject to any final
adjudication that may be made by a civil Court between the
parties regarding their status and civil rights.
The stage is now set for appreciating the contentions
canvassed by the learned Counsel for the parties.
Mr. Nijhawan, learned Counsel for the appellant contends
that if s. 488(1) is construed in the light of its primary
object and. the nature of the jurisdiction conferred by it,
together with s. 489(1), it would be amoly clear that in
determining the wife’s claim to maintenance and its quantum,
her independent income is a relevant consideration. in
support of this contention, Counsel has referred to Mohd.
Ali v. Mt.
(1) 6 N.W.P. 205.
487
Sakina Begum(1) Narasimha Ayyar v. Rangathayammal(2);
Ploonnabalam v. Saraswathi(3); Ahmed Ali Saheb v.
Sarfara linisa Begum (4) and P. T. Ramankutty A chan v.
Kalyanikutty(5).
As against the above, Mr. Sardar Bahadur Saharya maintains
that the very fact that the Section does not make the
inability of a wife to maintain herself, a condition
precedent to the grant of maintenanceas it does in the case
of child-shows that the intention of the Legislature was
that the wife’s own income or means should not be taken into
account either for determining her right to maintenance or
for fixing its amount. It is further urged that the
language of s. 489 cannot be called in aid to construe s.
488 (1). Reliance for the main argument has 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 a 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 a child to
claim maintenance it has to be proved that the
child is unable to maintain itself’. No such
condition has been imposed in the case of a
wife. Cases in which maintenance was refused
to the wife merely on the ground that she was
in a position to maintain herself have, in my
view, omitted to consider the implication of
this distinction while construing the scope
and effect 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 under s. 488, Cr.P.C.,
is to claim just subsistence allowance which
should merely provide bare food, residence and
raiment and that also only if she has no other
means or source, then I must with respect,
record my emphatic dissent.”
It may be noted that the above principle spelled out from
the interpretation of s. 488(1) in Major Joginder Singh’s
case (supra),
(1) A.I.R. 1944 Lah. 394.
(3) A.I.R. 1957 Mad. 693.
(5) A.I.R. 1971 Kerala 22.
(2) A.I.R. 1947 Mad. 204.
(4) A.I.R. 1952 Hyd. 76
(6) A.I.R. 1960 Punjab 249.
488
was carried a step further by the Division Bench in Nanak
Chand Banarsi Dass and ors. v. Cliander Kishore and Ors.(1)
to deduce the proposition 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 a wife to
maintain herself a 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 a clear distinction between a wife’s locus standi, to
file a petition under s. 488 and her being entitled, on
merits, to a particular amount of maintenance thereunder.
This distinction appears to have been overlooked in Major
Joginder Singh’s case (supra). Proof of the preliminary
condition attached to a neglected child will establish only
his competence to file the petition but his entitlement to
maintenance, 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 a 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 Magistrate has to find out as to what is
required by the wife to maintain a 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 living can be
fairly determined, only if her separate income, also, is
taken into account together with the earnings of the husband
and his commitments.
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 a definite indication in the language of
the associate s. 489(1) that the financial resources of the
wife are also a relevant consideration in making such a
determination. Section 489(1) provides inter alia, that “on
proof of a change in the circumstances of any person
receiving under s. 488 a monthly allowance, the Magistrate,
may make such alteration in the allowance 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 a 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 to take into
consideration the separate income and means of the wife.
(1) A.I.R. 1969 Delhi 235.
489
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 Singh’s case (supra) was
explained and distinguished. That case in P. T. Ramankutti
v. Kalyankutty (supra) therein, the husband was getting a
net salary of Rs. 240/-, while the monthly salary. of the
wife was (after deductions) Rs. 210/-. The question, 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 Section 488 to a wife her personal
income also can be considered may Prima-facie
appear to be against the language of the
section because the condition “unable to
maintain itself” appearing therein attaches
itself only to child and not to wife. But
that condition has application only in
considering the maintainability of a petition
filed under s.488. A wife can file a 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 prohibiting 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 a punitive weapon against their husbands.
It is next contended on behalf of the appellant that s. 488
must be deemed to have been 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) of s.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 inconsistent 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 in consistent
withs .23 or any other provisions of the act. This matter
is no longer resititegra.In Nanak Chand v. Shri Chandra
Kishore Agarwala and Ors.(1) this Court held that there is
no inconsistency between Act 78 of 1956 and s. 488, Criminal
Procedure
(1) [1970] 1 S.C.R. 565.
490
Code. Both could 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 a 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 said and it needs to be said again, that s. 488 is
intended to serve a social purpose. It provides a machinery
for summary enforcement of the moral obligations of a man
towards his wife and children so that they may not, out of
sheer destitution become a hazard to the well-being of
orderly society. As against this, s. 23 and other provi-
sions of the Act relating to fixation of the rate of
allowance, provide for the enforcement of the rights of
Hindu wives or dependents under their personal law. This
contention therefore is meritless and we negative the same.
For the reasons aforesaid, we allow the appeal, set aside
the judgment of the High Court and send the case back to the
trial Magistrate to refix the amounts of maintenance. In
the case of the wife, he shall together with other relevant
circumstances, take into account her income also. In the
case of the daughter, he shall afford opportunity to the
parties to lead fresh evidence and then refix her allowance.
V.P.S.
Appeal allowed.
491