The court emphasized the discretionary power of the Magistrate to grant maintenance and the consideration of the means of both the husband and the wife in fixing the rate of maintenance under S.488 of the Criminal Procedure Code.

1. Both the parties to this revision, the petitioner, Ramankutty Achan, whom for convenience I shall call Achan, and his wife, Kallianikutty, who is the respondent, are teachers. Their marriage took place in 1953. From 14-1-1968 they began to live separate. So long as love persisted there was little need of law to rule the relations between them. But as love flew out of the window the lawyer stepped in through the door. On 26-10-1968 Kallianikutty applied before the District Magistrate, Palghat, for granting maintenance to her three children. Her application was resisted by Achan. The District Magistrate granted maintenance to Kalliauikutty at the rate of Rs. 25/- and to each of the children at the rate of Rs. 20/- per month. Aggrieved by it Achan has filed this revision petition.

2. After deductions from the salary of Achan which is Rs. 285/- he gets Rs. 240.63 every month. The monthly salary of Kallianikutty also is Rs. 285/-. Out of it after deductions she gets Rs. 210/- every month.

3. The liability of Achan to maintain the children was not disputed by his counsel. About the maintenance awarded to them the only argument advanced was that the rate fixed was excessive. Considering the means of Achan the rate fixed for the children is proper and cannot be said to be excessive.

4. The more serious dispute between the parties was about the right of a person placed in the position of Kallianikutty to claim maintenance under S.488 of the Criminal Procedure Code. I was referred to Ponnambalam v. Saraswathi AIR. 1957 Mad. 693, Ahmed Ali Sahib v. Sarfara julnisa Begum. AIR. 1952 Hyderabad 76, Sardar Muhammad v. Sur Muhammad AIR. 1917 Lahore213, Mohd. Ali v. Sakina Begum AIR. 1944 Lahore 392, Annan Narasimha Ayyar v. Ranganathayammal AIR. 1947 Madras 304, Arunachala Asari v. Anandayammal AIR. 1933 Madras 688 and Syed Bahood Ali v. Hassanuz Zaman Begum (1957) 1. MLJ. (Crl.) 622, by counsel appearing for Achan and Jogindar Singh v. Raj Mohinder Karur AIR. 1960 Punjab 249, by counsel appearing for Kallianikutty in support of the respective positions they took.

5. In Ponnambalam v. Saraswathi AIR. 1957 Mad. 683 the wife belonged to a class who did not go out for work for earning their livelihood and the husband was a Postman who was drawing a salary of Rs. 90/-per month. Rs. 25/-was fixed under S.488 as the monthly allowance for the wife. In considering the principles to be kept in view before fixing the rate of maintenance Ramaswami, J. who disposed of that

case said:

"Finally, the question of quantum of maintenance is also a matter for the discretion of the trial Magistrate, because he has to take into consideration several factors, like the status of the family, the earnings and the commitments and what is required by the wife to maintain herself. In regard to determining what is required by the wife to maintain herself, we have to steer clear of two extremes, viz.. we must not give 'maintenance which would keep her in luxury and would make judicial separation profitable and also impede any future reconciliation.

We must also steer clear of the other extreme, viz., penuriousness. which used to be the case with our elderly Sub Judges in civil suits and which used to be on such a scale as would be fitting only in the case of an unchaste Hindu widow. Streering clear of these two extremes we must see whether Rs. 25/- out of the Rs. 90/- is liberal or illiberal."

6. In Ahmed Ali Sahib v. Sarfara julnisa Begum AIR. 1952 Hyderabad 76 the wife who applied for maintenance was a school-mistress drawing a total monthly salary of Rs. 148/-. Shripat Rao, J. who dismissed her petition said:

"Mr. Appa Rao has cited Mohamedan v. Sakina Begum, 45 Crl. L. J. 254 (Lah) in which it has been held that the Magistrate's power to make an order under S.488. Criminal P. C. is discretionary and where, therefore the evidence in a case shows that the wife has a private income of her own which is sufficient to keep her (wife) from starvation, an order granting