Maintenance to wife Whether her income in Account fixing
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,
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]
