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Wudali Gangamma Vs. Wudali Subbarayudu and anr. - Court Judgment

LegalCrystal Citation
SubjectFamily;Criminal
CourtAndhra Pradesh High Court
Decided On
Case NumberCriminal Revn. Case No. 609 of 1959 and Criminal Revn. Petn. No. 528 of 1959
Judge
Reported inAIR1961AP510; 1961CriLJ760
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439, 488 and 489
AppellantWudali Gangamma
RespondentWudali Subbarayudu and anr.
Appellant AdvocateA. Kuppuswamy, Adv.
Respondent AdvocateC. Sitaramayya, ;K. Suryanarayana, Adv. and ;Public Prosecutor
Disposition Petition allowed
Excerpt:
.....procedure code, 1898 - husband in affluent position - whether wife entitled to get more than bare minimum subsistence allowance - normally maintenance payable depends on needs for sustenance - held, husband has become affluent so wife entitled to more than bare minimum subsistence allowance. - maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by..........the respondent who is her husband was drawing a salary of rs. 124/- per mensem in 1948 when the monthly allowance payable to the petitioner was fixed at rs. 35/- per mensem. the respondent was a teacher and seems to have risen to the post of principal of a high school in secunderabad in 1958, the petitioner thereupon filed an application under section 489 cr. p. c., for alteration of the monthly allowance payable to her on the ground that there has been a change in the circumstances of her husband and that she is therefore entitled to enhanced allowance. 2. the judicial 1st class magistrate, kurnool, found that it is common ground that the respondent is now earning rs. 470/- p.m., and that when the order of allowance was made in 1948 the salary of the respondent was only rs. 124/-.....
Judgment:
ORDER

Munikanniah, J.

1. The petitioner claimed maintenance from her husband in 1948 and filed an application under Section 488 of the Code of Criminal Procedure. The respondent who is her husband was drawing a salary of Rs. 124/- per mensem in 1948 when the monthly allowance payable to the petitioner was fixed at Rs. 35/- per mensem. The respondent was a teacher and seems to have risen to the post of Principal of a High School in Secunderabad in 1958, The petitioner thereupon filed an application under Section 489 Cr. P. C., for alteration of the monthly allowance payable to her on the ground that there has been a change in the circumstances of her husband and that she is therefore entitled to enhanced allowance.

2. The Judicial 1st Class Magistrate, Kurnool, found that it is common ground that the respondent is now earning Rs. 470/- p.m., and that when the order of allowance was made in 1948 the salary of the respondent was only Rs. 124/- p.m. It was also found that the respondent has been living alone even from the time the petitioner remained away from him. Thus the respondent is not burdened with more responsibility in his household affairs, but he may have no doubt to keep up his position as a Head Master or Principal of the High School.

Nevertheless, even having regard to this factor, the learned Judicial 1st Class Magistrate came to the conclusion that this is a case where the petitioner would be entitled to enhanced monthly allowance. In arriving at the figure regarding the enchanced allowance, the learned Magistrate thought that he was constrained to conform to an observation in the Cr. P. C. by Chitaley and Annaji Rao contained in Note 19 of Section 488.

Quoting the passage that Section 488 Cr. P. C. intends to provide only against starvation and consequent vagrancy and it is not the intendment of the Legislature to provide anything more than maintenance i.e. food, clothing and residence, he found that Rs. 20/- per mensem is necessary for the petitioner to secure a room for residence in Madras besides a bare minimum of Rs. 40/- for monthly food of the petitioner together with an aggregate sum of Rs. 100/- per year for clothing, etc. On this basis, he arrived at the conclusion, that a minimum amount of Rs. 70/- is required by the petitioner and therefore enhanced the allowancee only to Rs. 70/- per month.

As against this decision of the learned Magistrate, a revision petition was filed before the Sessions Court, Kurnool. The learned Sessions Judge merely observed that the lower court has taken into consideration the change of circumstances viz., the rise in the cost of living index and the loss of family support which the petitioner sustained by reason of her having to live apart from her father as her father is now dead and in that view he dismised the revision petition. This is a further, revision petition in those circumstances by the wife.

3. Mr. Alladi Kuppuswamy for the petitioner contended that the outlook of the Magistrate in determining the enhancement of the allowance-permissible under Section 489 Cr. P. C., should not be confined to finding out with reference to the index of prices or with the notional cost of living and awarding only the minimum as allowance, but Section 489 Cr. P. C. contemplates the discerning of the ambit of the change in the circumstances of the wife us well as the husband and further he argued that the increase in the monthly rate raised to Rs. 500/- by reason of the amendment of this Section by Act XXVI of 1955 should be taken to give greater latitude to provide convenient allowances.

In other words, the point that is sought to be made is the allowance that is contemplated under Section488 Cr. P. C., to a wife is not the bare minimum sustenance allowance but a convenient provision in consonance with what the husband can afford as also what the wife requires in the circumstances and as adjustment with reference to the change of circumstances is contemplated, it is not the meeting of mere wants by way of subsistence that is meant by the Legislature.

The argument put that way, to my mind, has something to be said in its favour. It is no doubt true that having regard to the principle that a husband is bound to maintain his wife whatever might be his means of income, the provision to be made to the wife must necessarily depend upon her needs for sustenance in such a case. Courts therefore would not ordinarily violate this rule especially in cases where overlooking this rule would work hardship on the wife.

But to insist upon conformance to this rule in cases where the husband is in affluent circumstances or becomes so later than the provision for maintenance was made under Section 488 Cr. P. C., would be not only inequitable but unjustified especially in view of the fact that the discretion of the Court in awarding maintenance is wide enough and can be exercised by fixing up to a figure not exceeding Rs. 500/- suiting the occasion as well as the status of the spouses concerned.

Then again, if what is contemplated by Section489 Cr. P. C. is only the revision of the allowances having regard to the alteration in prices of food, clothing and residence, one would find the mention of this specially in that section. On the other hand, we find specific absence of such a restriction or non-mention of any such limitation. That Section contemplates an increase in the monthly rate of allowance

'on proof of a change in the circumstances of any person receiving under Section488 a monthly allowance.'

The discretion given to the Magistrate is in the following terms;

'...... .the Magistrate may make such alteration in the allowances as he thinks fit......'

And the only condition to which this discretion is subjected is that if the Magistrate increases the allowances, the monthly allowance to Rupees Five hundred in the whole be not exceeded. Thus though a summary remedy is provided under Section 488 Cr. P. C. the framers of the Code did contemplate the benefit of the altered circumstances to the wife.

In my view, the provision is not only meant for increasing the allowance only on the ground of alteration of what ought to he paid for food, clothing and residence, but also taking all other circumstances of the case, for merely because a summary remedy is provided in the manner as contained in Section 488 Cr. P. C. it does not mean that other relevant, necessary and important considerations such as the income of the husband or his status should not be taken into consideration in making the allowance or alteration of such allowance under this provision.

It might be that the Magistrate is not obliged to make such calculations as a Civil Court would do in arriving at the rate of maintenance payable to a wife- But the rough and ready appraisement of the rate by a Magistrate cannot he such as to ignore all relevant considerations. Viewed in this light, the Magistrate's outlook in confining himself to the only consideration of alteration in prices of food, clothing and residence is unjustifiable. Even on this, as has been pointed out by the learned counsel for the petitioner, the finding that there has been a rise of only 35 per cent over the prices of 1948 is controversial.

4. While so, the question that arises is whether the order of the Judicial 1st class Magistrate in awarding maintenance at the rate of Rs. 70/- per mensem which the learned Magistrate said is the minimum that is required as sustenance allowance could be sustained. Having regard to what has been said above by me, I am unable to agree that the discretion has been properly exercised by the learned Magistrate in this case; for the learned Magistrate felt that he is not bound to grant anything more than the subsistence allowance and kept the provision at the minimum which, as has been observed, is not the only consideration that Ought to weigh with him.

If a husband is able to pay a little more and keep the Wife going on an even keel, it cannot be said that he is thereby obliged to pamper a wife who seeks to live apart from him. Nevertheless, the consideration of an easy allowance, no doubt, at the discretion of the Court is not outside the scope of either Section488 or Section489 Cr. P. C. Applying this principle to the present case, I would find that the bare minimum of Rs. 70/-which has been provided as the enhanced allowance would not meet the ends of justice or the needs of the petitioner and that therefore having regard to the fact that the husband is now drawing four times of the salary of that which he was getting in 1948, the wife should be given an allowance of Rs. 100/- per month.

5. Mr. C. Seetharamiah strenuously contended that interference in revision with an order granting allowance under Section488 Cr. P. C. should not ordinarily be. He relied upon a few cases which are not necessary to be referred to as there can be no two opinions in regard to the me of powers though exceptional under Section 439 Cr. P. C. even in cases pertaining to allowance of wives falling under Section488 Cr. P. C. But I am unable to find any prohibition in the exercise of this jurisdiction especially when this Court comes to the conclusion that a proper order has not been made and the discretion has not been exercised judicially. I therefore consider that interference is called for in this case.

6. In the result, the petitioner will be entitled to an allowance of Rs. 100/- per month This revision petition is accordingly allowed, out in the circumstances without costs.


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