V.D. Misra, J.
1. An Additional Session Judge has made a re-commendation for quashing the order of the trial Magistrate granting maintenance allowance of Rs. 50/- per month to the respondent-wife in the following circumstances :
Chander Parkash, petitioner, married Prem Lata, respondent in October 1956. They had two issues, Anil Kumar a son, and Sushma Rani a daughter. Sometime in 1965 the parties started living separately. The respondent alleged that she was deserted and maltreated and for that reason she could not live with the petitioner. On 25th February, 1969, the wife for herself and on behalf of the minor children claimed maintenance from the petitioner under Section 488 of the Code of Criminal Procedure.
2. The Magistrate found that the husband was getting Rs. 300/- per month while the wife was getting Rs. 292/- per month (wrongly stated as Rs. 212/- per month in the order of reference) as pay. Both of them are employed as telephone operators. He granted maintenance of Rs. 25/- each to the children and Rs. 50/- per month to the wife.
3. The petitioner husband approached the Court of Session in revision which has resulted in the present recommendation.
4. The learned counsel for the wife opposes the recommendation and contends that under Section 488 of the Code of Criminal Procedure, the income of the wife claiming maintenance has not to be taken into consideration at the time of directing the husband to pay maintenance. According to the learned counsel, the wife has only to show that the husband has sufficient means and despite that he neglects or refuses to maintain the wife. He relied on Major Joginder Singh v. Bibi Raj Mohinder Kaur, A.I.R. 1960 249 The learned counsel for the husband contends that where the wife is able to maintain herself, a husband cannot be directed to pay maintenance under Section 488 of the Code of Criminal Procedure. He relies on a decision of Lahore High Court in Mohd. Ali alias Barkat Ram v. Mt. Sakina Begum alias Shakuntla, A.I.R. 1954 392,(2) and Ahmed Ali Sahib v. Sarfarajulnisa Begum A.I.R. 1952 76(3). He also refers to M. Ponnambalam v. Saraswathi, : AIR1957Mad693 in support of his contention that the amount to be given to the wife for maintenance should be such as would support the wife not in any comfort but as would enable her to keep her body and soul together.
5. It is now well settled that Section 488 of the Code of Criminal Procedure provides a cheap and speedy remedy for the grant of maintenance to the wife where the husband having sufficient means neglects or refuses to maintain her. The object of this Section is to provide succor to a destitute wife. While deciding the question of maintenance the Magistrate is not to take into consideration the rights which may have been conferred on the parties under the civil law The Magistrate has been given a discretion in the matter but that discretion has to be exercised on well-laid judicial principles for determining the quantum. He has to take into consideration various factors, e.g., the status of the husband, his income and liabilities as well as amount necessary for maintaining the wife.
6. In my opinion, it is not correct to say that the income, which the wife is receiving, should not be taken into consideration while deciding the question of maintenance. After all the purpose of Section 488 of the Code of Criminal Procedure is to see that the wife, or the children who are unable to maintain themselves, should be provided for by the husband if he has sufficient means to do so but who neglects or refuses to maintain them. It is no answer to the application for maintenance that the wife is not on the road but is being maintained by her relations. The wife has not to be a burden on her relations or friends after her marriage. On the other hand, if without being a burden on anyone she has got sufficient income to maintain herself according to the status of the family, it win not be just to direct the husband to give her maintenance simply on the ground that it is the duly of the husband to maintain his wife The duty of the husband, as already observed, extends to the maintenance of the wife according to the status of the family etc., and not only to keep her body and soul together. In Mohd. Ali's case (supra) (2) the husband was not a young man and had another wife to look-after and because of his ill health he had been discharged from service. His income was found to be between Rs. 15/- to Rs. 20/- per month whereas his expenditure was Rs. 40/- to Rs. 50/-per month. Rs. 38/- per month allowed to the wife, who had a private income of Rs. 18/- per month, were set aside. It was in these circumstances that the learned Judge observed that 'whatever may be her rights under the civil law, she is not entitled to a maintenance allowance under this summary procedure greater than her bare needs for food, clothes and lodging.' In my opinion, this is not an authority for the proposition that a maintenance allowance to be granted to a wife is to be only for enabling her to keep her body and soul together In Joginder Singh's case (supra),(1) the husband was getting Rs. 1070/-per month having practically no other liability and so a sum of Rs. 150/- per month was awarded to the wife and a sum of Rs. 200/- per month for the maintenance of the child. The wife was not in receipt of any income. In these circumstances, the learned Judge refused to interfere in revision and reduce the quantum of maintenance fixed for the wife. This decision is not an authority that irrespective of the income of the wife she should be paid maintenance by her husband. It is true that under Section 488 of the Code of Criminal Procedure before a child can claim maintenance from the father, it has to prove that it is unable to maintain itself and no such condition has been imposed on the wife, but the Magistrate cannot be said to be exercising his discretion judicially if he fails to take note of the income of the wife. If that was not so, the result would be that even where a wife is earning far more than the income of the husband (and these cases are not rare in the present day society) she should still be awarded maintenance setting at naught the purpose of Section 488 of the Code of Criminal Procedure and perhaps reducing the husband to penury. The grant of maintenance under this Section is not by way of punishment but as already observed, to enable the wife to live according to the social status to which the family belongs. The wife is always free to establish her claim under the civil law or the personal law of the parties in order to get an adequate relief.
7. In the instant case, the Magistrate found that the wife had an income of Rs. 292/- per month, whereas the husband had an income of Rs. 300/- per month only out of which he has been directed to pay Rs. 50/- per month to the two children living with the wife. Thus, the husband is left with Rs. 250/- per month only whereas the wife will keep on getting Rs. 292/- per month. In these circumstances, to award Rs. 50/ per month to the wife as maintenance allowance cannot be said to be a judicial exercise of the discretion. This part of the impugned order of the Magistrate awarding Rs. 50/- per month to the wife for maintenance must be quashed and set aside.
8. The recommendation is, thereforee, accepted and the aforesaid part of the impugned order is hereby quashed and set aside.