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SUPREME COURT OF INDIA
Y.V. CHANDRACHUD, R.S. SARKARIA AND A.C. GUPTA, JJ.
Bhagwan Dutt, Appellant
Versus
Smt. Kamla Devi and another, Respondents.
Criminal Appeal No. 228 of 1970, D/17-l-l974.
Where the trial court granted separate quantum of maintenance to the wife and child and did not take into account the independent income of the wife which was upheld by the High Court, and argument advanced was that the independent income of the wife was a relevant factor is deciding such questions,
Held, that sec. 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 sec. 488 (1) indicate 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. 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 sec. 489 (l) that the financial reserve of the wife ,are also relevant consideration in making such a determination and the Magistrate is competent to take into consideration the separate income and means of the wife. (Paras 9, 17 & 18)
Code of Criminal Procedure Act V of 1898, Sec. 488 (1) - Wife having her own independent income-Application for maintenance under the section-Such applications whether maintainable.
Held, that the mere fact that the language of Sec. 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 the 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 u/s 488 and her being entitled, on merits a particular amount of maintenance there under. (Para 15)
Code of Criminal Procedure (Act V of 1898), Sec. 488 and Sec. 23 of the Hindu Adoptions and Maintenance Act, 1956 - Sec. 488 of the Code whether inconsistent with the provisions of the Hindu Adoptions and Maintenance Act -Distinction explained.
Held, that the scope of two laws is different, Sec. 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, Sec. 488 is intended to serve social purpose. It provides a machinery for summary enforcement of the moral obligation of a man towards his wife and children where as Sec. 23 and other provisions of the Act relating to fixation of the rate of allowance, provide for enforcement of the rights of Hindu wives or dependents under their personallaw-1970 (1) SCR 565 ref. (Paras 22 & 23)
Yes, the court in this case held that the purpose of Section 125 is to prevent destitution and vagrancy rather than to punish the husband. The judgment emphasized that the provisions are intended to serve a social purpose by ensuring that neglected wives and children are not left destitute, thereby preventing vagrancy and immorality. The court clarified that the jurisdiction conferred under this section is more in the nature of a preventive measure rather than a punitive one, aimed at fulfilling a moral obligation and maintaining social order.
Judgment
SARKARIA, J.: - 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.
2. Respondent No. l, 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 29,1957. 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 an application under Section 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. 150/-, approximately.
3. 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 of the wife, the Magistrate did not take into consideration her own independent income.
4. 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 Section 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.
5. 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 Section 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 reference pro tanto, but accepted the same in regard to the enhancement of the allowance of the child.
6. Aggrieved by the judgment of the High Court, the husband has now come in appeal before us.
7. The material part of Sec. 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) ..........."
8. The corresponding part of Section 125 in the new Criminal P. C., 1973, which came into force on 1st 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 p
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