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Thankappan Asari Vs. Pankajakshi - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Revn. Petn. No. 332 of 1958
Judge
Reported inAIR1960Ker66
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 439, 488, 489 and 561A
AppellantThankappan Asari
RespondentPankajakshi
Appellant Advocate P. Kochukrishna Pillai, Adv.;Public Prosecutor
Respondent Advocate M. Abraham and; P. Joshna, Advs.
Cases ReferredIn Hazara Singh v. Mt. Sant Kaur
Excerpt:
- - 3/- per mensem granted by the order, or if made jointly for the wife and child, was bad in law as a joint award. , the necessary amendments in the order can be mad, and the irregularities complained of, can be removed;.....p. c. the petition for maintenance was filed on 31-1-1956, and the order was passed by the magistrate 011 the 14th february, 1958, in making the direction aforesaid, the learned magistrate expressed himself in these terms:'though maintenance could be allowed from the date or petition, i do not allow the hill arrears because that would be a heavy burden on the counter-petitioner. but in view of the fact that the petitioner was maintaining the minor child all the while with considerable difficulty, i order the counter-petitioner to pay rs. 100/- in lieu of the arrears of maintenance from the date of petition till date of this order.'the objection to this was two-fold, firstly, that maintenance could be ordered under section 488, criminal p. c., only at a monthly rate, and secondly,.....
Judgment:
ORDER

S. Velu Pillai, J.

1. This is to revise an order passed by the First Class Magistrate at Punaloor, under Section 488, Criminal P. C., awarding maintenance to the wife and child of the revision petitioner, who may be referred to as the petitioner. The first pointtaken before me, that the wife had no'justification to live separately from the petitioner, cannot be sustained, in view of the finding of fact based upon her testimony, that she had been subjected to cruel treatment by him.

2. The second point taken was, that the direction to the petitioner in the order sought to be revised, to pay a sum of Rs. 100/- in lieu of arrears of maintenance from the date of the petition till the date of the order, is opposed to the provisions of Section 488, Criminal P. C. The petition for maintenance was filed on 31-1-1956, and the order was passed by the Magistrate 011 the 14th February, 1958, In making the direction aforesaid, the learned Magistrate expressed himself in these terms:

'Though maintenance could be allowed from the date or petition, I do not allow the hill arrears because that would be a heavy burden On the counter-petitioner. But in view of the fact that the petitioner was maintaining the minor child all the while with considerable difficulty, I order the counter-petitioner to pay Rs. 100/- in lieu of the arrears of maintenance from the date of petition till date of this order.'

The objection to this was two-fold, firstly, that maintenance could be ordered under Section 488, Criminal P. C., only at a monthly rate, and secondly, that the award of Rs. 100/-, if made for the child, alone, had exceeded the rate of future maintenance at Rs. 3/- per mensem granted by the order, or if made jointly for the wife and child, was bad in law as a joint award. On the terms of Section 488 Criminal P. C., there is no warrant for payment, ofherwise then at a monthly rate, and this has been held to be so, in Purnasashi Devi v. Nagendranath, AIR 1950 Cal 465, a case in which the trial Magistrate had ordered maintenance payable partly in paddy annually; hut in revision, the High Court set right the irregularity, by directing payment of the commuted value of paddy at the appropriate monthly rate. This course is open, in this case too.

3. On the true construction of the relevant part of the order extracted above, I have no doubt, that the award of Rs. 100/- was towards the maintenance of the petitioner's wife and child, and not of the child only, in conformity with the prayer in the petition for maintenance. A joint award is not within the contemplation of Section 488, Sub-section (1), which empowers the Magistrate to order the husband 'to make a monthly allowance for the maintenance of his wife or such child at such monthly rate'. A joint award also appears to be against the scheme and intendment of Section 489, Criminal P. C., which provides for an alteration in the allowance, according to altered circumstances, which may not always be the same, but may vary for the wife and the child. In Hazara Singh v. Mt. Sant Kaur, AIR 1957 Pepsu 24, a joint award to the wife and two children at Rs. 25/- per mensem, was held to be illegal; nevertheless, in revision, the High Court invoked its inherent power under Section 56I-A and apportioned the award between the wife and the children, fixing the rates at Rs. 15/- for the wife, and at Rs. 5/- for each of the children.

4. It seems to me, that without invoking the inherent power, in the exercise of the revisional jurisdiction itself under Section 439, Criminal P. C., the necessary amendments in the order can be mad, and the irregularities complained of, can be removed; if it were necessary to apply Section 561-A, Criminal P, C., I do not hesitate to do so, in the cir-cumstances of the case. Thus, taking the amount of Rs. 100/- ordered towards past maintenance as above, to be for a period of two years, the monthly rate works out roughly at Rs. 4/-, which 1 think, may be apportioned at Rs. 3/- and Re. I/- per month, between the wife and child.

5. Thus, the petitioner shall pay maintenancefrom the date of the petition to the date of theorder passed by the trial Magistrate, at Rs. 3/- permensem to the wife, and at Re. 1/- per mensemto the child. Future maintenance shall be, asordered' by the Magistrate, The revision petitionis ordered as above.


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