(1) In this criminal revision under section 435 and 439 of the criminal procedure Code. The legality of the order of the learned Sub- divisional Magistrate. Delhi, dated 6-5-1967 is challenged.
(2) It appears that Smt. Sheila Rani presented an application under section 488, Cr. P. C., for maintenance against her husband Shri Chander Parkash on the ground that she had been turned out of the house by her husband, who failed and neglected to maintain her. The parties were married and stayed together for some time and a child was also born from this wedlock. According to the wife, her husband was keeping with him his step-mtoher and it was mainly; on this ground that he was usually; cross with his wife and used to beat her on occasions.
(3) The factum of marriage was admitted by the husband and he also expressed his willingness to maintain his wife provided she lived with him. In the evidence, the wife deposed that the husband was having a liason with his step-mtoher and the husband also in turn made a counter-allegation in the evidence against his wife of her having illicit relations with one Som Nath. The allegation of beating his wife was denied by the husband.
(4) The learned Magistrate, on appraisal of the evidence, came to the conclusion that a sum of Rs. 75 per month should be paid to her by way of maintenance allowance from the date of the order. The infant child was directed to remain with the mtoher, she being his natural guardian. It may be pointed out that the wife had claimed maintenance at the rate of Rs. 100 per month, but this was considered to be excessive.
(5) The husband approached the learned Sessions Judge on revision and Shri B. L. Nagpal, Additional Sessions Judge, Delhi, dismissed the revision in liming on 6-9-1967 with the following order:-
'Learned counsel for the petitioner has urged only that the amount awarded by the trial Magistrate is excessive. He has nto referred to any evidence on the record to substantiate his assertion. No reason to interfere Dismissed in liming.'
It is in these circumstances that the present revision has been preferred in this Court.
(6) The learned council for the husband has submitted in the first instance that there is no evidence on the record in regard to the income of the husband, with the result that the amount of Rs. 75 pre month has been fixed in an arbitrary manner. He has, in order to substantiate his submission, referred me to the relevant record. In his reply to the application of Smt. Sheila Rani, Chander Parkash has pleaded that he is getting Rs. 89 as his basic pay with toher allowances and has gto alltoted a Government quarter for which he is already paying Rs. 18 pre month as rent besides electric and water charge He has, however nto cared to specify the amount of the toher allowances. In his evidence also, he does nto seem to have cared to give the details of his allowances which he get in addition to his basic pay. He was the best person to know of his income and, thereforee, to frankly depose about the same. It is nto controverter that he does help his father also in the business which the latter may be carrying on. Smt sheila Rani has in her statement in Court sworn that her husband is employed in the Railway Department and in his spare time he also works with his father. It has been added that he had also ornaments with him. In my opinion, it is nto possible to say that the learned Sub-Divisional Magistrate has arrived at the estimate of the husband's income arbitrarily without any material on the record. In view of what has just been stated, the decision of the Allahabad High Court in Ram Singh v. State, : AIR1963All355 , cited by Shri Duggal on behalf of the husband is of no avail to him.
(7) But this apart, as submitted by Shri Bhandari, an able-bodied young man has to be presumed to be capable of earning sufficient money so as to be able reasonably to maintain his wife and child and he cannto be heard to say that he is nto in a position to earn enough to be able to maintain them according to the family standard. It is for such able-bodied person to show to the Court cogent grounds for holding that he is unable, for reasons beyond his control, to earn enough to discharge his legal obligation of maintaining his wife and child. In the present case, as the husband has nto frankly disclosed to the Court, as he ought, his allowances which he admittedly gets, the presumption would be easily permissible against him.
(8) Shri Duggal has also, in the course of his arguments, submitted that the husband was always willing to keep the wife with him to maintain her, and indeed in the Court below he actually filed a formal application, offering to keep his wife in his house, and on this ground, it is argued that the wife's petition should be dismissed. This submission is completely unacceptable on the facts and circumstances of this case and seems to me to be misconceived. The husband has at the stage of his evidence., as mentioned earlier, made an accusation of adultery against he wife and if an account of this accusation, which is denied by the wife and was nto even contained in his reply, the wife declines to go and live with the husband, she is, in my opinion, amply justified in doing so. But this apart, the offer seems to me to be far from genuine and bona fide, and coming, as it does, only in answer to the present claim, it creates an impression of its being a mere device to avoid the liability of maintenance in these proceedings. Under Section 488(3). Cr. P. C.. It is permissible to the Court to make an order of maintenance even if the husband offers to maintain his wife on the condition of her living with him, if the Court is satisfied that there is just ground for doing so. In the present case, I have no hesitation in holding that the wife has a just ground for declining to live with the husband if he has no scruple in making the accusation of adultery against her on oath in Court.
(9) At this stage, it may be observed that proceedings under section 488, Cr, P. C. are summary in nature for compelling a man to maintain his wife and/or children. It provides a cheap and speedy remedy for recurring to a limited degree maintenance for the deserted wife and children. This Court on revision would ordinarily interfere with such orders only if the Court below has failed to exercise its discretion judicially and if substantial justice has nto been done. So long as the proceedings before the Magistrate are in accordance with law and in order and when evidence has been properly considered and estimated, his decision, normally speaking, deserves to be upheld and it may nto be liable to be disturbed merely because the Court of revision might have thought of coming to a different conclusion on the evidence while functioning as the original Court. I, however, must nto be understood to lay; down as a general rigid rule of universal application that, appraisal of evidence by the Magistrate however, grossly infirm, is completely sacrosanct, never to be examined on revision, for, this Court's paternal jurisdiction is meant to promtoe and advance the cause of substantial justice, though of course according to law.
(10) There was some argument at the bar that the wife had also made a false allegation of adultery against her husband in relation to his own step-mtoher. Whether or nto it is true or justified, is nto necessary for me to determine. The fact, however, remains that if the accusation and counter-accusation have gone to that extent, then at the present point of time, it is far better that the wife stays apart with her child and the husband provides maintenance to them btoh, as he is bound under law to do. If and when feelings on btoh sides cool down and they realise that it is good nto only for them btoh but it is the only course in the best interests of their child that they should live together as husband and wife in accordance with the recognised Indian traditions, they can patch up their differences which do nto appear to be serious.
(11) Shri Bhandari has also suggested that the amount of maintenance permitted to the wife should be split up into two parts, one for the wife and the toher for the child and he has sought support for this submission from a decision of the Bombay High Court in Prabhavati Dholidas v. Sumatilal Dholidas, : AIR1954Bom546 . This decision, to my opinion, does nto make it imperative for the Court to separately; determine the amount of maintenance for the mtoher and the child. In the present case, I do nto think it is either necessary or possible for me on revision to go into this question and specify the amount of maintenance separately for the wife and her infant child. The child, I am told, is now nearly two years old. I must make it clear that as the child grows and his needs expand it would be open to the mtoher to apply for increase in the maintenance. Orders under section 488. Cr. P. C., are liable to be varied with the change in the circumstances of the parties.
(12) Shri Bhandari has also hinted that the order of the learned Sub-Divisional Magistrate should be directed to be operative from the date of the wife's application and nto from the date of the Court's order. In my view, if the wife was feeling aggrieved from this part of the order, she could have applied for revision. This Court has undoubtedly; suo mtou power to interfere, but this power has to be exercised after due ntoice to the party to be prejudicially affected and a point of this nature raised at the time of arguments on the facts of this case, cannto be disposed of without affording opportunity; to the toher side of meeting it. The learned Magistrate had to specifically order payment of maintenance from the date of application, which he did nto consider proper to do. I have nto been persuaded to make such an order suo mtou.
(13) For all the foregoing reasons, this revision fails and is dismissed. The record may be sent back immediately.
(14) Reision dismissed.