Violation of Article 14 by Section 488 of Cr. P.C., 1898.

This petition is by the husband against an order of maintenance passed by the Additional First-Class Magistrate, Vellore, under section 488, Criminal Procedure Code, in favour of his wife. The petitioner has been ordered to pay Rs. 15 a month. There is a clear finding by the Magistrate that the petitioner has neglected and refused to maintain the respondent herein. After going through the records I am satisfied that the lower Court was justified in-arriving at that conclusion. On the merits, therefore, there is no case for the petitioner herein.

The question that is raised by the learned counsel for the petitioner is that section 488, Criminal Procedure Code, is ultra vires of the Constitution because the provision is only in favour of women without a similar provision in favour of men. In short his argument is that in the absence of a provision that the husband must in similar circumstances also be awarded maintenance from the wife, the provision is ultra vires. He says that it offends Article 14 of the Constitution. I must at the outset say that a mere untenable argument could not have been advanced by anyone appearing for the petitioner. On the face if it, it is ridiculous to suggest that husband must have a similar provision in his favour. What is meant by Article 14 of the Constitution has been stated by their Lordships of the Supreme Court in Chiranjit Lal Chowdhury v. The Union of India1. His Lordship, Mr. Justice Fazl Ali dealing with this Article quotes with approval from Professor Willis’s Constitutional Law as follows:

"It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate. ‘It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed’.......It does not take from the states the power to classify cither in the adoption of police laws, or tax laws, or eminent domain laws, but permits to them the exercise of a wide scope of discretion, and nullifies what they do only when it is without any reasonable basis."

Then His Lordship says as follows:

"I wish to lay particular emphasis on the principle enunciated by him that any classification which is arbitrary and which is made without any basis is no classification and a proper classification must always rest upon some difference (Italics is mine) and must bear a reasonable and just relation to the things in respect of which it is proposed." In the same judgment, His Lordship Mr. Justice Mukherjee, dealing with this Article states at page 53 as follows:

“As has been said by the Supreme Court of America, equal protection of laws is a pledge of the protection of equal laws’ and this means ‘subjection to equal laws applying alike to all in the same situation. In other words, there should be no discrimination between one person and another if as regards the subject-matter of the legislation their position is the same (Italics is mine) . . . . There can certainly be a law applying to one person or to one group of persons and it cannot be held to be unconstitutional if it is not discriminatory in its character. It would be bad law’ if it arbitrarily selects one individual or a class of individuals, one corporation or a class of corporations and visits a penalty upon them, which is not imposed upon others guilty of like delinquency.‘The Legislature undoubtedly has a wide field of choice in determining and classifying the subjects of its laws, and if the law deals alike with all of a certain class, it is normally not obnoxious to the charge of denial of equal protection; but the classification should never be arbitrary. It must always rest upon some real and substantial distinction bearing a reasonable and just relation to the things in respect