{"id":113927,"date":"1974-10-17T00:00:00","date_gmt":"1974-10-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/bhagwan-dutt-vs-kamla-devi-and-anr-on-17-october-1974"},"modified":"2018-05-09T09:24:16","modified_gmt":"2018-05-09T03:54:16","slug":"bhagwan-dutt-vs-kamla-devi-and-anr-on-17-october-1974","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/bhagwan-dutt-vs-kamla-devi-and-anr-on-17-october-1974","title":{"rendered":"Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974<\/div>\n
Equivalent citations: 1975 AIR 83, \t\t 1975 SCR (2) 483<\/div>\n
Author: R S Sarkaria<\/div>\n
Bench: Sarkaria, Ranjit Singh<\/div>\n
           PETITIONER:\nBHAGWAN DUTT\n\n\tVs.\n\nRESPONDENT:\nKAMLA DEVI AND ANR.\n\nDATE OF JUDGMENT17\/10\/1974\n\nBENCH:\nSARKARIA, RANJIT SINGH\nBENCH:\nSARKARIA, RANJIT SINGH\nCHANDRACHUD, Y.V.\nGUPTA, A.C.\n\nCITATION:\n 1975 AIR   83\t\t  1975 SCR  (2) 483\n 1975 SCC  (2) 386\n CITATOR INFO :\n R\t    1986 SC 984\t (5)\n R\t    1987 SC1100\t (5)\n\n\nACT:\nCode  of  Criminal  Procedure  (Act  5\tof  1898)  s.\t488-\nMaintenance  to\t wife Whether her income and  means  can  be\ntaken into account in fixing.\n\n\n\nHEADNOTE:\nThe separate income and means of the wife can be taken\tinto\naccount in determining the amount of maintenance payable  to\nher under s. 488, Criminal Procedure Code, 1898. [490 D]\n(1)(a)\tThe section does not confer an absolute right  on  a\nneglected  wife to get an order of maintenance\tagainst\t the\nhusband\t nor  does it impose an absolute  liability  on\t the\nhusband to support her in all circumstances.  The use of the\nword  ,may' in s. 488(1) indicates that the power  conferred\non  the Magistrate is discretionary, though  the  discretion\nmust be exercised in a judicial manner consistently with the\nlanguage  of  the  statute  and with  due  regard  to  other\nrelevant circumstances of the case. [486 B-I]\n(b)The\tobject of Ss. 488 to 490 being to  prevent  vagrancy\nand  destitution,  the Magistrate has to find  out  what  is\nrequired by the wife to maintain a standard of living  which\nis  neither luxurious nor penurious, but is consistent\twith\nthe  status of the family.  Such needs and  requirements  of\nthe  wife  can\tbe fairly determined only  if  her  separate\nincome,\t also,\tis  taken into\taccount\t together  with\t the\nearnings of the husband and Ms commitments. [488 D-E]\n(c)The\tmere  fact that the language of s. 488(1)  does\t not\nexpressly  make the inability of a wife to maintain  herself\na- condition precedent to the maintainability does not imply\nthat  while determining her claim and fixing the  amount  of\nmaintenance,  the  Magistrate is debarred from\ttaking\tinto\nconsideration  the  wife's own separate income or  means  of\nsupport.   There  is a clear distinction  between  a  wife's\nlocus  standi to file a petition under the section  and\t her\nbeing (entitled to a particular amount of maintenance.\tEven\nin  the\t case  of  a  neglected\t child\tthe  proof  of\t the\npreliminary  condition,\t namely, the inability\tto  maintain\nitself,\t will only establish the child's competence to\tfile\nthe  petition;\tbut its entitlement to maintenance  and\t the\nfixation  of the amount would depend upon the discretion  of\nthe Magistrate. [485 B-D]\n(d)There  is  nothing  in  the\tsections  to  show  that  in\ndetermining the maintenance the Magistrate should take\tinto\naccount\t only the means of the husband and not the means  of\nthe  wife.   On the contrary, s. 489(1)\t provides  that\t 'on\nproof  of  a  change  in the  circumstances  of\t any  person\nreceiving  under s. 488 a monthly allowance, the  Magistrate\nmay make such alteration in the allowance as he thinks fit;'\nand  'circumstances' must include  financial  circumstances.\n[488 E-G]\nP.  T. Ramankutty Achan v. Kalyanikutty, A.I.R. 1971  Kerala\n22, approved.\nMajor  Joginder\t Singh. v. Bivi Raj  Mohinder  Kaur,  A.I.R.\n1960,  Punjab 249, and Nanak Chand Banarsi Das and  Ors.  v.\nChander Kishore and Ors.  A.I.R. 1969 Delhi 235. overruled.\n(2)Section  488, Cr.P.C., provides a summary remedy  and  is\napplicable to all persons belonging to all religions and has\nno  relationship  with the personal law of  the\t parties  It\nprovides  a  machinery for the summary\tenforcement  of\t the\nmoral  obligation  of a man towards his wife  and  children.\nBut  s. 23 and other provisions of the Hindu  Adoptions\t and\nMaintenance  Act 1956, relating to fixation of the  rate  of\nallowance,  provide  for the enforcement of  the  rights  of\nHindu wives and dependents under their personal law.   There\nis no inconsistency between the 1956-Act 16-M 255 Sup CI\/75\n484\nand s. 488, Cr.\t P.C. Both could stand together, and  hence,\nthere  is no question of s. 488 being partially repealed  or\nmodified by s. 23 of the 1956 Act. [490 A-B]\nManak Chand v. Shri Chandra Kishore Agarwal and Ors., [1970]\n1 S.C.R. 565, followed.\n\n\n\nJUDGMENT:\n<\/pre>\n
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 228  of
\n1970.\n<\/p>\n
Appeal\tby special leave from the judgment and\tOrder  dated
\nthe 30th April, 1970 of the Delhi High Court at New Delhi in
\nCriminal Revision No. 90 of 1970.\n<\/p>\n
D.  N. Nijhawan, Urmila Kapoor and Kamlesh Bansal,  for\t the
\nappellant.\n<\/p>\n
Sardar Bahadur Saharya, for the respondents.
\nThe Judgment of the Court was delivered by
\nSARKAR\tCan the income of the wife be taken into account  in
\ndetermining  the amount of maintenance payable to her  under
\nSection\t 488 of the Code of Criminal Procedure, 1898 ?\tThis
\nis  the principal question for determination in this  appeal
\nby special leave.\n<\/p>\n
Respondent  No. 1, Kamla Devi was married to  the  appellant
\nBhagwan\t Dutt on January 22, 1957 according to Hindu  rites.
\nout  of this wedlock a daughter, Respondent No. 2, was\tborn
\non November 22, 1957.  On October 18, 1966, Respondent No. 1
\nfiled\ta  petition  against  the  appellant  for   judicial
\nseparation  on the ground of desertion and cruelty.   During
\nthe  pendency  of that petition, she filed  all\t application
\nunder s. 488 of the Code of Criminal Procedure, 1898, in the
\ncourt\tof  the\t Magistrate,  1st  Class,  Delhi,   claiming
\nmaintenance  for herself and for her minor daughter, on\t the
\nground\tthat  the  appellant had neglected  and\t refused  to
\nmaintain  them.\t At the date of the  application  Respondent
\nNo. 1 was employed as a stenographer on a monthly salary  of
\nRs. 600\/-.  The appellant was at that time earning about Rs.
\n800\/- per month.  However, later on when the case was in the
\nSessions  Court in revision, the monthly income of  each  of
\nthem had increased by Rs. 1501-, approximately.
\nBy  his order dated June 6,1969 the Magistrate directed\t the
\nhusband\t to pay Rs. 250\/- per month i.e. Rs. 175\/-  for\t the
\nwife  and  Rs.\t75\/- for the child  for\t their\tmaintenance.
\nWhile  fixing  the amount of maintenance for the  wife,\t the
\nMagistrate   did  not  take  into  consideration   her\t own
\nindependent income.\n<\/p>\n
Against\t the  order of the Magistrate, the husband  went  in
\nrevision  to the Court of Session.  The Additional  Sessions
\nJudge was of the view that since the income of the wife\t was
\n“substantial”  and enough to maintain herself”. she was\t not
\nentitled to any maintenance.  He was further of the  opinion
\nthat Rs. 75\/- p.m. allowed to the child being inadequate, it
\ndeserved  to be raised to Rs. 125\/- p.m. for the  period  of
\nthe  pendency  of  the application in the  trial  court\t and
\nthereafter  to\tRs. 150\/- p.m. He referred the case  to\t the
\nHigh  Court under s. 438 of the Code with  a  recommendation
\nthat  the order of the Magistrate to the extent\t it  allowed
\nmaintenance  to the wife, be quashed, but the  allowance  of
\nthe child be enhanced as aforesaid.\n<\/p>\n
485<\/span><\/p>\n
A  learned  single  Judge of the High Court  who  heard\t the
\nreference  held that in “making an order for maintenance  in
\nfavour\tof  a  wife under s. 488 of  the  Code\tof  Criminal
\nProcedure  the court has not to take into consideration\t the
\npersonal  income  of  the  wife\t as  section  488  does\t not
\ncontemplate such a thing”.  He therefore declined the  refe-
\nrence  pro-tanto,  but accepted the same in  regard  to\t the
\nenhancement of the allowance of the child.
\nAggrieved by the judgment of the High Court, the husband has
\nnow come in appeal before us.\n<\/p>\n
The  material part of Section 488 of the Criminal  Procedure
\nCode is in these terms:\n<\/p>\n
\t      “(1)  if\tany person having  sufficient  means
\n\t      neglects\tor refuses to maintain his  wife  or
\n\t      his legitimate or illegitimate child unable to
\n\t      maintain\titself, the District  Magistrate,  a
\n\t      Presidency   Magistrate,\t a    Sub-Divisional
\n\t      Magistrate or a Magistrate of the first  class
\n\t      may,  upon proof of such neglect\tor  refusal,
\n\t      order such person to make a monthly  allowance
\n\t      for the maintenance of his wife or such  child
\n\t      at  such\tmonthly\t rate,\tnot  exceeding\tfive
\n\t      hundred rupees in the whole as such Magistrate
\n\t      thinks fit, and to pay the same to such person
\n\t      as the Magistrate from time to time directs.\n<\/p><\/blockquote>\n
\t      (2) to (5)..\t   ..\t    ..”\n<\/p><\/blockquote>\n
\t      The  corresponding part of Section 125 in\t the
\n\t      new Criminal Procedure Code, 1973, which\tcame
\n\t      into force on 1 st April 1974, reads:
\n\t      “125.  (1)  If any  person  having  sufficient
\n\t      means neglects or refuses to maintain-\n<\/p><\/blockquote>\n
\t      (a)   his wife, unable to maintain herself, or\n<\/p><\/blockquote>\n
\t      (b)   his\t legitimate  or\t illegitimate  minor
\n\t      child,  whether  married\tor  not,  unable  to
\n\t      maintain itself, or\n<\/p><\/blockquote>\n
\t      (c)   his\t legitimate  or\t illegitimate  child
\n\t      (not   being  a  married\tdaughter)  who\t has
\n\t      attained\tmajority , where such child  is,  by
\n\t      reason  of any physical or mental\t abnormality
\n\t      or injury unable to maintain itself, or\n<\/p><\/blockquote>\n
\t      (d)   his father or mother, unable to maintain
\n\t      himself or herself.\n<\/p><\/blockquote>\n
\t      a\t Magistrate  of the first  class  may,\tupon
\n\t      proof of a such neglect or refusal, order such
\n\t      person  to  make a monthly allowance  for\t the
\n\t      maintenance of his wife, such child, father or
\n\t      mother,  at  such monthly rate  not  exceeding
\n\t      five  hundred  rupees in the  whole,  as\tsuch
\n\t      Magistrate thinks fit, and to pay the same  to
\n\t      such person as the Magistrate may from time to
\n\t      time direct……”\n<\/p><\/blockquote>\n
A  comparative study of the provisions set out\tabove  would
\nshow  that  while in Section 488 the  condition\t “unable  to
\nmaintain itself”\n<\/p>\n
486<\/span><\/p>\n
apparently  attached only to the child and not to the  wife,
\nin  Section  125,  this condition has  been  expressly\tmade
\napplicable to the case of wife.\t Does this recasting of\t the
\nold  provision signify ally fundamental change in  the\tlaw?
\nOr,  has this been done merely to clarify and make  explicit
\nwhat was formerly implict ?\n<\/p>\n
Section 488 does not confer an absolute right on a neglected
\nwife to get an order of maintenance against the husband\t nor
\ndoes  it  impose  an absolute liability on  the\t husband  to
\nsupport her in all circumstances.  The use of the word “may”
\nin Section 488(1) indicates that the power conferred on\t the
\nMagistrate  is discretionary.  A neglected wife,  therefore,
\ncannot, under this Section, claim, as of right, an order  of
\nmaintenance against the husband.  of course, the  Magistrate
\nhas  to\t exercise  his\tdiscretion  in\ta  judicial   manner
\nconsistently  with  the\t language of the  statute  with\t the
\nregard\t to  other  relevant  circumstances  of\t the   case.
\nNevertheless, the Magistrate has to exercise his  discretion
\nprimarily towards the end which the Legislature had in\tview
\nin enacting the provision.\n<\/p>\n
Sections, 488, 489 and 490 constitute one family.  They have
\nbeen  grouped  together in Ch.\tXXXVI of the  Code  of\t1898
\nunder  the  caption,  “of  the\tmaintenance  of\t wives\t and
\nchildren”.   This  Chapter,  in\t the  words  of\t Sir   James
\nFitzstephen, provides ” a mode of preventing vagrancy, or at
\nleast of preventing its consequences”.\tThese provisions are
\nintended  to  fulfil a social purpose.\tTheir object  is  to
\ncompel\ta man to perform the moral obligation which he\towes
\nto  society  in\t respect  of  his  wife\t and  children.\t  By
\nproviding a simple, speedy but limited relief, they seek  to
\nensure\tthat  the neglected wife and children are  not\tleft
\nbeggared  and  destituted on the scrap-heap of\tsociety\t and
\nthereby\t driven to a life of vagrancy, immorality and  crime
\nfor their subsistence.\tThus, S-section 488 is not  intended
\nto provide for a full and final determination of the  status
\nand  personal  rights  of  the\tparties.   The\tjurisdiction
\nconferred  by the Section on the Magistrate is more  in\t the
\nnature of a preventive, rather than a remedial jurisdiction;
\nit is certainly not punitive.  As pointed out in  Thompson’s
\ncase(1)\t “the scope of the Chapter XXXVI is limited and\t the
\nMagistrate  cannot, except as thereunder provide, usurp\t the
\njurisdiction in matrimonial disputes possessed by the  Civil
\nCourts”.   Sub-section (2) of s. 489 expressly makes  orders
\npassed under Chapter XXXVI of the Code subject to any  final
\nadjudication  that may be made by a civil Court between\t the
\nparties regarding their status and civil rights.
\nThe  stage  is\tnow set\t for  appreciating  the\t contentions
\ncanvassed by the learned Counsel for the parties.
\nMr.  Nijhawan,\tlearned Counsel for the\t appellant  contends
\nthat  if s. 488(1) is construed in the light of its  primary
\nobject and. the nature of the jurisdiction conferred by\t it,
\ntogether  with\ts. 489(1), it would be amoly clear  that  in
\ndetermining the wife’s claim to maintenance and its quantum,
\nher  independent  income  is a\trelevant  consideration.  in
\nsupport\t of this contention, Counsel has referred  to  Mohd.
\nAli v. Mt.
\n(1)  6 N.W.P. 205.\n<\/p>\n
487<\/span><\/p>\n
Sakina\t Begum(1)  Narasimha  Ayyar  v.\t  Rangathayammal(2);
\nPloonnabalam v.\t    Saraswathi(3);   Ahmed  Ali\t  Saheb\t  v.
\nSarfara linisa Begum (4) and P.\t   T.  Ramankutty A chan  v.
\nKalyanikutty(5).\n<\/p>\n
As  against the above, Mr. Sardar Bahadur Saharya  maintains
\nthat  the  very\t fact that the Section\tdoes  not  make\t the
\ninability  of  a  wife\tto  maintain  herself,\ta  condition
\nprecedent to the grant of maintenanceas it does in the\tcase
\nof  child-shows\t that the intention of the  Legislature\t was
\nthat the wife’s own income or means should not be taken into
\naccount\t either for determining her right to maintenance  or
\nfor  fixing  its  amount.   It is  further  urged  that\t the
\nlanguage  of s. 489 cannot be called in aid to\tconstrue  s.
\n488 (1).  Reliance for the main argument has been placed  on
\nMajor Joginder Singh v. Bibi Raj Mohinder Kaur.(6)
\nIn  Major  Joginder  Singh’s. case  (supra),  the  wife\t had
\nclaimed\t maintenance  under  s. 488, Cr.   P.  C.  both\t for
\nherself\t and her minor son.  The husband was a Major in\t the
\narmy, getting Rs. 1070\/- p.m. It is not very clear from\t the
\nReport\tas  to whether the wife was having  any\t substantial
\nincome of her own.  However, an argument was raised that she
\nhad  her  own means of support which should  be\t taken\tinto
\naccount for determining her right to maintenance.
\nThe  learned  Judge  who decided  the  case,  negatived\t the
\ncontention, thus :\n<\/p>\n
\t      “It  is  obvious\tfrom  the  language  of\t the
\n\t      section  that  in order to enable a  child  to
\n\t      claim maintenance it has to be proved that the
\n\t      child is unable to maintain itself’.  No\tsuch
\n\t      condition\t has been imposed in the case  of  a
\n\t      wife.  Cases in which maintenance was  refused
\n\t      to the wife merely on the ground that she\t was
\n\t      in a position to maintain herself have, in  my
\n\t      view,  omitted to consider the implication  of
\n\t      this  distinction while construing  the  scope
\n\t      and  effect  of s. 488.  In  my  opinion,\t the
\n\t      ability  of the wife to maintain\therself\t was
\n\t      not intended by the legislature to deprive her
\n\t      of the right of maintenance conferred by\tthis
\n\t      section, if she is otherwise found entitled to
\n\t      it..”\n<\/p><\/blockquote>\n
\t      Commenting on the cases cited before him,\t the
\n\t      learned Judge further observed :
\n\t      “But  if those authorities intend to lay\tdown
\n\t      any  rigid  rule of law that  the\t only  right
\n\t      which a wife possesses under s. 488,  Cr.P.C.,
\n\t      is  to claim just subsistence allowance  which
\n\t      should merely provide bare food, residence and
\n\t      raiment and that also only if she has no other
\n\t      means  or\t source, then I must  with  respect,
\n\t      record my emphatic dissent.”\n<\/p><\/blockquote>\n
It  may be noted that the above principle spelled  out\tfrom
\nthe  interpretation of s. 488(1) in Major  Joginder  Singh’s
\ncase (supra),
\n(1)  A.I.R. 1944 Lah. 394.\n<\/p>\n
(3)  A.I.R. 1957 Mad. 693.\n<\/p>\n
(5)  A.I.R. 1971 Kerala 22.\n<\/p>\n
(2)  A.I.R. 1947 Mad. 204.\n<\/p>\n
(4)  A.I.R. 1952 Hyd. 76
\n(6)  A.I.R. 1960 Punjab 249.\n<\/p>\n
488<\/span><\/p>\n
was  carried a step further by the Division Bench  in  Nanak
\nChand Banarsi Dass and ors. v. Cliander Kishore and  Ors.(1)
\nto  deduce the proposition that the wife’s right to  receive
\nmaintenance  under  s. 488, Criminal Procedure\tCode  is  an
\nabsolute right.\n<\/p>\n
In  our\t opinion, one wrong assumption has  led\t to  another
\nfalse  deduction.   The mere fact that the  language  of  s.
\n488(1)\tdoes not expressly make the inability of a  wife  to
\nmaintain    herself   a\t  condition   precedent\t   to\t the
\nmaintainability\t of her petition, does not imply that  while
\ndetermining her claim and fixing the amount of\tmaintenance,
\nthe  Magistrate is debarred from taking\t into  consideration
\nthe  wife’s own separate income or means of support.   There
\nis  a  clear distinction between a wife’s locus\t standi,  to
\nfile  a\t petition under s. 488 and her\tbeing  entitled,  on
\nmerits,\t to a particular amount of  maintenance\t thereunder.
\nThis  distinction appears to have been overlooked  in  Major
\nJoginder  Singh’s  case (supra).  Proof of  the\t preliminary
\ncondition attached to a neglected child will establish\tonly
\nhis  competence to file the petition but his entitlement  to
\nmaintenance,  particularly the fixation of its amount,\twill
\nstill depend upon the discretion of the Magistrate.  As\t the
\nMagistrate is required to exercise that discretion in a just
\nmanner,\t the  income of the wife, also, must be put  in\t the
\nscales of justice as against the means of the husband.
\nThe object of those provisions being to prevent vagrancy and
\ndestitution,  the Magistrate has to find out as to  what  is
\nrequired by the wife to maintain a standard of living  which
\nis   neither  luxurious\t nor  penurious,  but  is   modestly
\nconsistent  with  the status of the family.  The  needs\t and
\nrequirements  of  the wife for such moderate living  can  be
\nfairly\tdetermined,  only if her separate income,  also,  is
\ntaken into account together with the earnings of the husband
\nand his commitments.\n<\/p>\n
There  is  nothing  in\tthese provisions  to  show  that  in
\ndetermining the maintenance and its rate, the Magistrate has
\nto inquire into the means of the husband alone, and  exclude
\nthe  means  of\tthe  wife  altogether  from   consideration.
\nRather,\t there is a definite indication in the\tlanguage  of
\nthe associate s. 489(1) that the financial resources of\t the
\nwife  are  also a relevant consideration in  making  such  a
\ndetermination.\tSection 489(1) provides inter alia, that “on
\nproof  of  a  change  in the  circumstances  of\t any  person
\nreceiving under s. 488 a monthly allowance, the\t Magistrate,
\nmay make such alteration in the allowance as he thinks fit”.
\nThe  “circumstances” contemplated by s. 489(1) must  include
\nfinancial  circumstances and in that view,the inquiry as  to
\nthe  change in the circumstances must extend to a change  in
\nthe financial circumstances of the wife.
\nKeeping in view the object, scheme, setting and the language
\nof these associate provisions in Chapter XXXVI, it seems  to
\nus clear that in determining the amount of maintenance under
\ns.  488(1),  the  Magistrate  is  competent  to\t take\tinto
\nconsideration the separate income and means of the wife.
\n(1)  A.I.R. 1969 Delhi 235.\n<\/p>\n
489<\/span><\/p>\n
We  do not wish to burden this judgment with  discussion  of
\nall the decisions that have been cited at the Bar.  It\twill
\nsuffice\t to notice one of them rendered by the\tKerala\tHigh
\nCourt  in  which  Major Joginder Singh’s  case\t(supra)\t was
\nexplained and distinguished.  That case in P. T.  Ramankutti
\nv.  Kalyankutty (supra) therein, the husband was  getting  a
\nnet  salary of Rs. 240\/-, while the monthly salary.  of\t the
\nwife  was (after deductions) Rs. 210\/-.\t The  question,\t was
\nwhether the wife in such a financial position had a right to
\nclaim  maintenance  under s.488,  Criminal  Procedure  Code.
\nafter  referring  to the observations of Dua,  J.  in  Major
\nJoginder Singh’s case (supra) and surveying the case law  on
\nthe  subject,  the learned single Judge of the\tKerala\tHigh
\nCourt correctly summed up the position thus ;\n<\/p>\n
\t      “To take the view that in granting maintenance
\n\t      under  Section  488  to a\t wife  her  personal
\n\t      income also can be considered may\t Prima-facie
\n\t      appear  to  be  against the  language  of\t the
\n\t      section  because\tthe  condition\t“unable\t  to
\n\t      maintain\titself” appearing  therein  attaches
\n\t      itself  only  to child and not to\t wife.\t But
\n\t      that   condition\thas  application   only\t  in
\n\t      considering the maintainability of a  petition
\n\t      filed under s.488. A wife can file a  petition
\n\t      under   that  section  irrespective   of\t the
\n\t      question\twhether\t she is able  or  unable  to
\n\t      maintain\therself.  But on her application  at
\n\t      the time of the granting of monthly  allowance
\n\t      to her there is nothing prohibiting the  Court
\n\t      from considering whether she can maintain her-
\n\t      self  with  her  own income and  if  she\tcan,
\n\t      granting her nothing by way of allowance.”\n<\/p><\/blockquote>\n
Any  other construction would be subversive of\tthe  primary
\npurpose of the section and encourage vindictive wives having
\nample  income and means of their own, to misuse the  section
\nas a punitive weapon against their husbands.
\nIt is next contended on behalf of the appellant that s.\t 488
\nmust be deemed to have been partially repealed and  modified
\nby  s. 23 of the Hindu Adoptions and Maintenance  Act,\t1956
\n(for   short,  called  the  Act)  which\t provides  that\t  in
\ndetermining the amount of maintenance, the Court shall have,
\ninter alia, regard “to the value of the wife’s property\t and
\nany income derived from such property or from the claimant’s
\nown earning or from other sources”.\n<\/p>\n
Clause (b) of s.4 of that Act provides
\n“Save as otherwise expressly provided in this Act\n<\/p>\n
(a)\t   x\t\t   x\t\t     x\n<\/p>\n
(b)  any   other  law  in  force  immediately\tbefore\t the
\ncommencement  of this Act shall cease to apply to Hindus  in
\nso  far\t as it is inconsistent with any\t of  the  provisions
\ncontained in this Act.”\n<\/p>\n
The  question  therefore resolves itself into  the  issue  :
\nwhether\t there is any thing in s.488 which is in  consistent
\nwiths  .23 or any other provisions of the act.\tThis  matter
\nis  no\tlonger resititegra.In Nanak Chand  v.  Shri  Chandra
\nKishore\t Agarwala and Ors.<\/a>(1) this Court held that there  is
\nno inconsistency between Act 78 of 1956 and s. 488, Criminal
\nProcedure
\n(1)  [1970] 1 S.C.R. 565.\n<\/p>\n
490<\/span><\/p>\n
Code.  Both could stand together.  The Act of 1956 is an Act
\nto  amend  and\tcodify\tthe law\t relating  to  adoption\t and
\nmaintenance among Hindus.  The law was substantially similar
\nbefore\twhen  it  was never suggested  that  there  was\t any
\ninconsistency  with S. 488, Cr.\t P. C. The scope of the\t two
\nlaws  is different.  Section 488 provides a  summary  remedy
\nand is applicable to all persons belonging to all  religions
\nand  has  no  relationship  with the  personal\tlaw  of\t the
\nparties.\n<\/p>\n
We  have said and it needs to be said again, that s. 488  is
\nintended to serve a social purpose.  It provides a machinery
\nfor  summary enforcement of the moral obligations of  a\t man
\ntowards\t his wife and children so that they may not, out  of
\nsheer  destitution  become  a hazard to\t the  well-being  of
\norderly\t society.  As against this, s. 23 and  other  provi-
\nsions  of  the\tAct  relating to fixation  of  the  rate  of
\nallowance,  provide  for the enforcement of  the  rights  of
\nHindu  wives or dependents under their personal\t law.\tThis
\ncontention therefore is meritless and we negative the same.
\nFor  the reasons aforesaid, we allow the appeal,  set  aside
\nthe judgment of the High Court and send the case back to the
\ntrial  Magistrate to refix the amounts of  maintenance.\t  In
\nthe case of the wife, he shall together with other  relevant
\ncircumstances,\ttake into account her income also.   In\t the
\ncase  of  the daughter, he shall afford opportunity  to\t the
\nparties to lead fresh evidence and then refix her allowance.
\nV.P.S.\n<\/p>\n
Appeal allowed.\n<\/p>\n
491<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974 Equivalent citations: 1975 AIR 83, 1975 SCR (2) 483 Author: R S Sarkaria Bench: Sarkaria, Ranjit Singh 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, […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-113927","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nBhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/bhagwan-dutt-vs-kamla-devi-and-anr-on-17-october-1974\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Bhagwan Dutt vs Kamla Devi And Anr on 17 October, 1974 - 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